NCAT Appeal Panel Decisions Digest Issue 8 of 2023 | 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 2023:
Webb v Secretary, Department of Communities and Justice [2023] NSWCATAP 213: An Appeal Panel refused leave to appeal from a decision of the Tribunal to refuse to allow the appellant to appear in the substantive hearing via audio visual link. The Tribunal’s discretionary decision was only fettered by its obligation to act judicially and in furtherance of the guiding principle. The appellant had failed to provide evidence to demonstrate that she would suffer a materially greater than usual prejudice if she was required to attend in person.
Treadgold-Svir v Dynamik Constructions Pty Ltd [2023] NSWCATAP 216: An Appeal Panel granted leave to appeal in part and increased an award by $182.83, but otherwise refused leave to appeal from a decision of the Tribunal in relation to incomplete and defective works. Where the contract was not in writing and there was no document which recorded the scope of works, it was permissible for the Tribunal to rely on post-contractual conduct to support conclusions as to the agreed works.
Registrar of Births, Deaths and Marriages v Kelloway [2023] NSWCATAP 231: An Appeal Panel set aside the Tribunal’s orders and instead made a decision pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) not to take any action on the matter. Section 25 of the PPIP Act applied to exempt the Registrar of Births, Deaths and Marriages from compliance with the relevant privacy principles set out in ss 18 and 19(2) of the PPIP Act and consequently the Tribunal could not grant any relief under the PPIP Act.
Commissioner of Police, NSW Police Force v DYD [2023] NSWCATAP 244: An Appeal Panel set aside the Tribunal’s orders and remitted the matter to a differently constituted Tribunal for reconsideration on the basis that the Tribunal’s reasons were inadequate. The Tribunal’s critical findings and conclusion were a bare statement with no underlying reasoning or reference back to the evidence in question.
Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | 1. What considerations are relevant to the determination of an application to appear via audio visual link (AVL)?
Webb v Secretary, Department of Communities and Justice [2023] NSWCATAP 213 Administrative and Equal Opportunity Division A Suthers, Principal Member
In sum: The decision to allow or refuse an application for a party to appear via AVL is a discretionary one, fettered only by the Tribunal’s obligation to act judicially and in furtherance of NCAT’s guiding principle. An application must be determined on its individual merits, with those merits assed by reference to any proper considerations.
Facts: On 19 April 2023, the appellant (Ms Webb) applied to the Tribunal for administrative review of a decision of the respondent (Secretary) under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). On 17 May 2023, Ms Webb made a request to attend the substantive hearing via AVL, giving the reason that she undertakes a 300km round-trip and incurs costs when attending NCAT. The Secretary objected, in part due to Ms Webb’s management of a website focussing on freedom of information, which was said to give rise to a risk that other people may be in attendance or that the hearing may be recorded and shared between users or forum members. Ms Webb asserted these concerns were unfounded. The Tribunal dismissed Ms Webb’s application to attend via AVL.
Held (refusing leave to appeal): (i) Ms Webb argued that the Tribunal’s decision was beyond its jurisdiction. The Appeal Panel noted that what Ms Webb was in fact challenging was power, not jurisdiction. The Tribunal’s jurisdiction was clearly engaged when Ms Webb made her application for review under the GIPA Act. NCAT may decide its practice and procedure, and its discretion is fettered only by the obligation to act judicially and in furtherance of the guiding principle, as set out in ss 36 and 38 of the Civil and Administrative Tribunal Act 2013 (NSW) (at [37], [11]).
(ii) The Appeal Panel noted that the fact that the Tribunal had previously allowed Ms Webb to appear via AVL in other proceedings, and that previously the Tribunal had allowed parties, almost universally, to appear via AVL when the COVID-19 pandemic warranted such a course, does not indicate that it is bound to do so forever. The decision as to whether a party or witness should be allowed to appear via AVL is a discretionary one, and the mere fact that AVL hearings can generally be conducted fairly does not necessarily mean that process is ideal, or even preferable, in all situations (at [38], [48], [4]-[5]).
(iii) Ms Webb alleged actual bias in the form of prejudgment on the basis that, given the timetabling of submissions, the Tribunal Member only had “one, eight hour day” to write and publish the decision. Applications to appear via AVL are to be determined on their individual merits, to be assessed by reference to any proper considerations. The Tribunal was not persuaded to exercise its discretion, largely on the basis that there was no evidence from Ms Webb to demonstrate that a materially greater than usual prejudice would be caused if she was required to appear in person. The Tribunal’s decision was open to it, and no House v The King error was made out (at [39], [53], [57], [58]). | 2. Is an interlocutory decision in proceedings under the Health Practitioner Regulation National Law (NSW) (National Law) in respect of access to summonsed documents an internally appealable decision?
Singh v Health Care Complaints Commission [2023] NSWCATAP 240 Occupational Division Hennessy, ADCJ, Deputy President; Dr R Dubler SC, Senior Member
In sum: Whilst the source of the Tribunal’s power to deal with access to summonsed documents was the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the relevant summonses were issued, and the Tribunal’s decision to refuse the respondent access to them was made, for the purposes of the National Law. As a result, the decision was a profession decision within the meaning of cl 29(1)(d) of Sch 5 to the NCAT Act and thus was not an internally appealable decision. The Appeal Panel had no jurisdiction to hear any appeal from the Tribunal’s decision to refuse access to the summonsed documents.
Facts: The substantive proceedings were disciplinary proceedings brought by the respondent (Commission) against the appellant (Mr Singh), a registered nurse. The Commission objected to Mr Singh having access to documents produced in response to two summonses. On 28 April 2023, the Tribunal refused to grant Mr Singh access to the documents. Mr Singh sought to appeal that decision. The Commission argued that cl 29(1)(d) of Sch 5 to the NCAT Act, which designates decisions made for the purposes of the National Law as decisions that are not internally appealable, applied to the Tribunal’s decision to refuse access, such that the Appeal Panel had no jurisdiction to hear the appeal.
Held (dismissing the appeal): (i) Mr Singh submitted that the Tribunal’s decision should be characterised as a general decision, rather than a profession decision within the meaning of cl 29(1)(d) of Sch 5 to the NCAT Act. He argued that the Tribunal was not exercising any jurisdiction or power “under” the National Law when it made its orders refusing access, and that the Tribunal was exercising powers conferred on it by the NCAT Act to make an ancillary or interlocutory decision. This was said to be supported by the fact that the National Law does not confer any express power on NCAT to make ancillary and interlocutory decisions. The Appeal Panel accepted that the decision was an interlocutory decision and that the NCAT Act was the source of the power to deal with the summons that was before the Tribunal (at [20], [23], [27], [29]).
(ii) Mr Singh further sought to persuade the Appeal Panel that interlocutory or ancillary decisions made under the NCAT Act and not under the National Law should not be regarded as being “for the purpose of” the National Law. The Appeal Panel held that, consistent with the ordinary meaning of the term “for the purposes of”, the decision regarding access to summonsed documents issued in disciplinary proceedings under the National Law was for the “purposes of” those proceedings. The summonses were issued for the “purposes of” pursuing Mr Singh’s defence in the disciplinary proceedings pursuant to or under the National Law. Similarly, the purposes of the Tribunal’s orders were to allow for the orderly and efficient conduct of the disciplinary proceedings. Consequently, the decision was also for the “purpose of” the National Law itself within the meaning of cl 29(1)(d) of Sch 5 to the NCAT Act. As a result, the Appeal Panel had no jurisdiction to hear an appeal against the Tribunal’s orders (at [48], [53]-[56], [61]). | 3. Can post-contractual conduct be relied upon to determine the scope of work?
Treadgold-Svir v Dynamik Constructions Pty Ltd [2023] NSWCATAP 216 Consumer and Commercial Division - Home Building M Harrowell, Deputy President; A Lo Surdo SC, Senior Member
In sum: It is permissible for the Tribunal to take into account the parties’ post-contractual conduct to support conclusions as to agreed works. However, it is not otherwise admissible on the question of what the contract means, as distinct from whether it was formed.
Facts: The appellant (homeowner) brought a claim in relation to renovation and repair work performed by the respondent (builder), seeking an amount of $498,445.44. The Tribunal awarded the homeowner $48,597.46. The homeowner appealed.
Held (granting leave to appeal in part; granting the appeal): (i) There was a dispute as to the terms of the contract and the scope of work, as there was no written contract or document recording the scope of work. This was an evidentiary matter the Tribunal was required to resolve, and the Tribunal made factual findings as necessary about particular items of work and whether that item formed part of the scope of works. Permissibly, the Tribunal made reference to the post-contractual conduct of the parties to support conclusions as to agreed works. However, post-contractual conduct is not otherwise admissible on the question of what the contract means (as opposed to whether it was formed). Any challenge to the Tribunal’s findings required leave to appeal (at [21]-[28]).
(ii) The homeowner challenged the Tribunal’s preference of the builder’s expert (Mr Taylor) over her own (Mr Frizzell). This preference was on the basis that Mr Frizzell had simply adopted the amount quoted by Dardas Construction; the Tribunal found that Mr Frizzell had not provided any methodology or reasoning as to why that quotation was accepted. In contrast, Mr Taylor’s report had set out reasoning and contained a detailed itemised breakdown (with regard to Rawlinson’s Construction Guide). Mr Frizzell had not provided a report in reply taking issue with those costings. The Appeal Panel held that leave to appeal on this ground should be refused. Mr Frizzell’s report did not provide evidence which would enable an evaluation of the validity of his expert conclusions against each item as to the necessity for work or the reasonableness of cost: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [30]-[31]. Mr Taylor had explained his methodology, assessed quantities and applied rates to determine a reasonable price for the works in question (at [29]-[44]).
(iii) The homeowner also sought to challenge the Tribunal’s conclusion that the items identified as consequential damage were likely pre-existing and that if they were not, the respondent was not engaged nor paid to rectify the damage. The Appeal Panel, having regard to the relevant lack of precision in the homeowner’s evidence and the Tribunal’s reasoning as to the reliability of the evidence on the state of the premises prior to the contract, was not satisfied the damage was caused by defective work performed by the builder. With regard to the Tribunal’s findings as to the scope of work, the Appeal Panel refused leave to appeal from the Tribunal’s decision, save in respect of the garage. The respondent’s scope, which was accepted by the Tribunal, required the builder to rectify damage in the garage. The Appeal Panel granted leave to appeal and increased the award (in line with Mr Taylor’s costings) by an amount of $182.93. The Appeal Panel otherwise refused leave to appeal (at [81]-[99], [114]). | 4. Does s 25 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) apply to exempt the Registrar of Births, Deaths and Marriages from compliance with the privacy principles in ss 18 and 19(2) of the PPIP Act?
Registrar of Births, Deaths and Marriages v Kelloway [2023] NSWCATAP 231 Administrative and Equal Opportunity Division S Westgarth, Deputy President; Dr R Dubler SC, Senior Member
In sum: The Births, Deaths and Marriages Register (BDM Register) is not a public register within the meaning of s 3 of the PPIP Act. As a result, s 52(1)(a) applied to the Registrar’s conduct in this case. The Births, Deaths and Marriages Registration Act 1995 (NSW) (BDMR Act), Div 4, Pt 5, lawfully authorised disclosure within the scope of s 25(b) of the PPIP Act and thus the Registrar was exempted from compliance with the privacy principles in ss 18 and 19(2) of the PPIP Act.
Facts: In early 2020, a solicitor advised the appellant (Registrar) that he acted for a relative who was considering bringing legal proceedings against the respondent (Ms Kelloway) in a court in Peru, and that Ms Kelloway’s birth certificate would be important in the proceedings. In March 2020, the Registrar provided a copy of Ms Kelloway’s birth certificate to the solicitor without her consent or knowledge. In early 2022, Ms Kelloway became aware of the release of her birth certificate and complained to the Registrar on 21 February 2022. The matter was accepted as an internal review but was not finalised within 60 days. Ms Kelloway lodged an application for administrative review in NCAT. The Tribunal found that the Registrar had breached the relevant provisions of the PPIP Act by releasing the birth certificate without Ms Kelloway’s consent. The Registrar appealed.
Held (allowing the appeal): (i) The Registrar argued that the Tribunal erred in finding that the BDM Register is a public register within the meaning of the PPIP Act, despite a concession at first instance to the same effect. It was not in dispute that the BDM Register is a “register of personal information”; the meaning of the term “publicly available or open to public inspection” was in issue. The Appeal Panel confirmed that the words “public” and “publicly” ordinarily connote something that relates to people as a whole or at large, relying on the Macquarie Dictionary definition of “public” and case law considering the meaning of “publicly available” across various jurisdictions. The Appeal Panel accepted that, in practice, the information held in the BDM Register is not ordinarily made available for inspection by any member of the public who wishes to do so. Access to the BDM Register is by exception rather than the rule, and disclosure of certain information held on the BDM Register is strictly limited. The Appeal Panel held that the BDM Register is not a public register within the meaning of s 3 of the PPIP Act (at [37]-[43], [45], [64]-[67], [58]-[71]).
(ii) In light of the Registrar’s concession and the Tribunal’s subsequent conclusion that the BDM Register was a public register, the Tribunal understandably took the view that s 52(1)(c) of the PPIP Act was applicable. As a result, the Tribunal constructively failed to review the conduct that it was asked to review by reviewing the conduct under s 52(1)(c) instead of s 52(1)(a) of the PPIP Act. It necessarily followed that the Appeal Panel was required to determine whether or not s 25 of the PPIP Act applies to exempt the Registrar from compliance with ss 18 and 19 of the PPIP Act (at [72], [82]-[84]).
(iii) The Registrar relied on Div 4, Pt 5 of the BDMR Act – which confers a discretion on and authorises the Registrar to provide a person (with adequate reasons for wanting information from the BDM Register) with information extracted from the BDM Register – as lawfully authorising the disclosure within the scope of s 25(b) of the PPIP Act. The Appeal Panel accepted that the discretion granted to the Registrar under the BDMR Act to disclose information in certain circumstances would be prima facie in breach of s 18 of the PPIP Act. The Appeal Panel concluded that s 25 of the PPIP Act applies to exempt the Registrar from compliance with the privacy principles in ss 18 and 19(2) of the PPIP Act (at [87], [97]-[106]).
(iv) The Appeal Panel accepted that even if there had been a breach of the BDMR Act, such breach could not be the subject of review or litigation under the PPIP Act where s 25 of the PPIP Act applies: PN v Department of Education & Training (GD) [2010] NSWADTAP 59 at [58]. However, the decision of the Registrar to release Ms Kelloway’s birth certificate was a decision under the BDMR Act and thus was capable of being the subject of an application for review pursuant to s 56 of the BDMR Act. Despite this, the Appeal Panel found that such a review was not before the Tribunal – the application before the Tribunal was for review of the deemed refusal to consider Ms Kelloway’s complaint as to the alleged breach of the relevant privacy principles and potential remedies available under the PPIP Act. Consequently, the Tribunal could not grant relief under the PPIP Act and there was no claim before it for review under s 56 of the BDMR Act. The Tribunal’s orders were set aside (at [111]-[115], [122]-[125]). | 5. Is a question as to the adequacy of Tribunal reasons a question of law alone?
Commissioner of Police, NSW Police Force v DYD [2023] NSWCATAP 244 Administrative and Equal Opportunity Division S Westgarth, Deputy President; Dr R Dubler SC, Senior Member
In sum: The issue of whether a question of the adequacy of the Tribunal’s reasons is a question of law is not free from doubt, but in this case the Appeal Panel proceeded in light of the orthodox view set out in other Appeal Panel decisions that it is a question of law, a question of law alone, and leave to appeal is not required. The Tribunal’s reasons were inadequate because there was no exposed reasoning as to why it rejected some evidence but accepted other evidence; its conclusion and critical findings regarding the evidence was a bare statement.
Facts: The respondent (DYD) applied to the Tribunal for administrative review of two decisions made by the appellant (Commissioner) in relation to an access application under the Government Information (Public Access) Act 2009 (NSW). On 1 May 2023, the Tribunal ordered the Commissioner to release information contained on the Computerised Operation Policing System (COPS) for all types of line/entries showing as “D”, “U”, “DC” and “UC” in certain reverse COPS audit reports and corresponding information in a document titled “Reasons for Access audits”. All other information was to be withheld. The Commissioner appealed, arguing that the Tribunal’s reasons contained no meaningful explanation of its reasoning process as to how it applied the law to the factual context or why.
Held (allowing the appeal): (i) DYD argued that the question as to the adequacy of the Tribunal’s reasons did not amount to a question of law but instead raised a question of fact or a mixed question of fact and law; the Commissioner contended that the traditional view was that it raised a question of law. The Appeal Panel noted the orthodox view in previous decisions of the Appeal Panel followed Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], which included, in a non-exclusive list of questions of law, whether there has been a failure to provide proper reasons. The Appeal Panel acknowledged that the question cannot be regarded as free from doubt or authoritatively determined by the courts, but proceeded to follow the orthodox view set out in previous Appeal Panel decisions that a question of law was raised and leave to appeal was not required (at [12]-[13], [14]-[17], [18]).
(ii) The Appeal Panel and the parties, in light of Bell P’s comments in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, proceeded on the presumption that the Tribunal was under an obligation to provide adequate reasons, and s 62(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides important guidance as to what should be set out by the Tribunal in its reasons, even where there is no request pursuant to s 62(2) of the NCAT Act. Section 62(3) leaves open the question as to the quality or detail of the reasoning process that must be exposed. Drawing on Bell P’s discussion in Orr, the Appeal Panel noted that a detailed exposition of every aspect of the evidence, arguments and conclusion upon them is not required, but an essential statement of the reasons on the core controversies before the Tribunal, to allow the parties to understand the reasoning process that led the Tribunal to the conclusions that it made, is required (at [27]-[30], [43]-[45]).
(iii) The Tribunal’s conclusion and critical findings regarding the evidence was a bare statement without any underlying reasoning or reference back to the evidence in question. Particularly, the Tribunal’s distinction between the lines/entries showing as “D”, “U”, “DC” and “UC” and the other codes including “E”, “DA” and “UA”, was unexplained. The Tribunal stated a conclusion but failed to set out the reasoning process that led to it. The Appeal Panel held that the Tribunal’s reasons were inadequate because there was no exposed reasoning as to why it rejected the evidence for some lines/entries but accepted the evidence for others. This failure deprived the Commissioner of any meaningful right to challenge the decision on appeal. The Appeal Panel set aside the Tribunal’s orders and remitted the matter to a differently constituted Tribunal for reconsideration (at [35]-[40], [48]-[51], [57]). | | | John v Taleb [2023] NSWCATAP 207 Consumer and Commercial Division - Residential Tenancy Decision of: S Westgarth, Deputy President; Dr R Dubler SC, Senior Member Catchwords: APPEAL — application for extension of time – out of time by many months – prospects of appeal are poor – application for extension of time refused. | Commissioner of Police, NSW Police Force v DYD [2023] NSWCATAP 212 (AEOD) Administrative and Equal Opportunity Division Decision of: R Dubler SC, Senior Member; S Higgins, Senior Member Catchwords: APPEAL – questions of law – adequacy of reasons – application of ‘not in the best interest of the child’ in cl 3(g) of the Table to s 14 of the Government Information (Public Access) Act 2009 (NSW) | Webb v Secretary, Department of Communities and Justice [2023] NSWCATAP 213 Administrative and Equal Opportunity Division Decision of: A Suthers, Principal Member Catchwords: APPEALS — Leave to appeal — Decision to refuse application for a party to attend final hearing by audiovisual link — Matter of practice and procedure — Decision reached not unreasonable or plainly unjust — No material consideration ignored — House v The King error not made out — Leave to appeal refused | Dick v Buildingwise Constructions Pty Ltd [2023] NSWCATAP 214 Consumer and Commercial Division - Home Building Decision of: R C Titterton OAM, Senior Member; P H Molony, Senior Member Catchwords: APPEALS – appeals from interlocutory decisions – leave required - appeals on questions of law – appeals where leave required – no question of principle | | Treadgold-Svir v Dynamik Constructions Pty Ltd [2023] NSWCATAP 216 Consumer and Commercial Division - Home Building Decision of: M Harrowell, Deputy President; A Lo Surdo SC, Senior Member Catchwords: BUILDING AND CONSTRUCTION – contract not in writing – dispute concerning scope of work – admissibility of evidence – need to prove loss or damage arises from conduct of builder and reasonable cost of making good such loss or damage CONTRACTS – Construction and interpretation – oral contract – dispute concerning scope of work – admissibility of post contractual evidence DAMAGES – consequential loss – remoteness of damage – loss of rental income not recoverable as too remote DAMAGES – interest on damages – no entitlement where no contractual provision, s 100 of the Civil Procedure Act 2005 (NSW) does not apply and Hungerfords v Walker type damages not proved | | Sherikey Pty Limited v Amos 1386 Pty Ltd & Ors [2023] NSWCATAP 218 Consumer and Commercial Division - Commercial Decision of: S Thode, Principal Member; P Durack SC, Senior Member Catchwords: LEASES AND TENANCIES – retail lease-claim for unpaid rent-separate claim by a tenant seeking relief based upon allegations that lessor failed to comply with COVID-19 regulations in respect of an “impacted lessee” – preliminary question decided by Tribunal in favour of the lessee as to whether the lessee had forfeited the COVID-19 “protections” – commercial leasing principle 2 in National Cabinet Mandatory Code of Conduct referred to forfeiture of protections provided to the tenant under the Code-no statutory provision for such forfeiture. APPEALS – appeal from a decision on a preliminary question – question of law-preliminary question posed and answered on incorrect premise as to status and effect of the commercial leasing principle in issue. | White v Di Lucca [2023] NSWCATAP 219 Consumer and Commercial Division - Residential Tenancy Decision of: S Thode, Principal Member; J S Currie, Senior Member Catchwords: APPEAL – RESIDENTIAL TENANCY – dismissal of compensation claim – no error of law – no issue of principle | Nguyen v Conley [2023] NSWCATAP 220 Consumer and Commercial Division - Residential Tenancy Decision of: C Fougere, Principal Member; L Wilson, Senior Member Catchwords: APPEAL – Residential Tenancy – Appellant resiling from previous agreements Appeal – Residential Tenancy – Withdrawn at first instance -No reason to allow the appellant to reagitate withdrawn claims | Hoger v Coria [2023] NSWCATAP 222 Consumer and Commercial Division - Residential Tenancy Decision of: A Suthers, Principal Member; R C Titterton OAM, Senior Member Catchwords: LEASES AND TENANCIES — question of law — leave to appeal — no issue of principle | Layoun v Multiproperties Pty Ltd (No 2) [2023] NSWCATAP 223 Consumer and Commercial Division - Commercial Decision of: S Thode, Principal Member; D Robertson, Senior Member Catchwords: APPEALS — Procedure – Orders on appeal – Restitution – Where judgment partially set aside on appeal has been paid prior to determination of the appeal – Possibility that costs order may be made against successful appellant on remittal of issue of costs of first instance proceedings is not sufficient reason to decline to make an order for restitution of the overpayment | Hockley-Brown v Metford Road PL t/as Morpeth Gardens Village [No 2] [2023] NSWCATAP 224 Consumer and Commercial Division - Residential Communities Decision of: S Westgarth, Deputy President; G K Burton SC, Senior Member Catchwords: APPEAL – COSTS - success on aspects of procedural fairness and on adequacy of reasons in late-amended appeal grounds – remitter to differently-constituted Tribunal – not sufficient to constitute special circumstances | Zhang v Barry [2023] NSWCATAP 225 Consumer and Commercial Division - Residential Tenancy Decision of: P Durack, Senior Member; D Ziegler, Senior Member Catchwords: APPEAL – Whether appellant notified of the hearing – whether a denial of procedural fairness – whether rehearing should be ordered – whether to extend time for lodgement of the appeal. | Abdelmessiah v Lifestyle Marketing Pty Limited [2023] NSWCATAP 226 Consumer and Commercial Division - General Decision of: P. Durack SC, Senior Member; M Deane, Senior Member Catchwords: COSTS – costs of appeal-applications for costs of the appeal misconceived on basis that Rule 38 (2) of the Civil and Administrative Tribunal Rules 2014 (NSW) applied because claim at first instance exceeded $30,000, whereas the true question concerned what was claimed or in dispute on appeal. | | Trajkovski v Harrison (No. 2) [2023] NSWCATAP 228 Consumer and Commercial Division - Strata Scheme Decision of: A Suthers, Principal Member; D Goldstein, Senior Member Catchwords: COSTS – From appeal against order made under section 237(5) of the Strata Schemes Management Act 2015 (NSW) | 357 Thornleigh Place Pty Limited v Shams (No 2) [2023] NSWCATAP 229 Consumer and Commercial Division - Commercial Decision of: P Durack SC, Senior Member; E Bishop SC, Senior Member Catchwords: COSTS — costs of appeal — no need for special circumstances because amount in issue on appeal well in excess of $30,000 — appellant successful in having orders made at first instance set aside — order for proceedings concerning claim for unconscionable conduct and rental arrears remitted to the Tribunal for redetermination — appellant unsuccessful in limited respects — discount applied to costs awarded to the successful appellant. | Amirbeaggi v NSW Self Insurance Corporation [2023] NSWCATAP 230 Consumer and Commercial Division - Home Building Decision of: A Suthers, Principal Member Catchwords: APPEALS – stay – procedural directions made in face of assertion Tribunal lacked jurisdiction – jurisdiction of Appeal Panel if assertion correct – application for stay ill-conceived | Registrar of Births, Deaths and Marriages v Kelloway [2023] NSWCATAP 231 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; Dr R Dubler SC, Senior Member Catchwords: GOVERNMENT INFORMATION – whether Register of Births, Deaths and Marriages under the Births, Deaths and Marriages Registration Act 1995 (NSW) is a public register – whether the Registrar of Births, Deaths and Marriages contravened the Privacy and Personal Information Protection Act 1998 (NSW) by disclosing a person’s birth certificate to a solicitor allegedly for use in foreign court proceedings without the consent of that person – whether by reasons of the terms of the Births, Deaths and Marriages Registration Act 1995 (NSW) s 25 of the Privacy and Personal Information Protection Act 1998 (NSW) exempted the Registrar from complying with sections 18 and 19 of the Privacy and Personal Information Protection Act 1998 (NSW) | Vok v NSW Land and Housing Corporation [2023] NSWCATAP 232 Consumer and Commercial Division - Social Housing Decision of: C Fougere, Principal Member; L Wilson, Senior Member Catchwords: Appeal – Social housing – estoppel – error in application of principles of cause of action estoppel and/or issue estoppel – re-hearing – compensation awarded for breach of tenant’s right to quiet enjoyment | | Evans v Charlesworth [2023] NSWCATAP 234 Consumer and Commercial Division - Residential Tenancy Decision of: S Westgarth, Deputy President; R C Titterton OAM, Senior Member Catchwords: APPEAL – landlord’s breach of a residential tenancy agreement-tenant’s claims for compensation-error in not considering late evidence concerning expert’s relationship with the landlords – evidence concerning landlords actions in cutting off electricity – failure to repair and maintain-claims out of time – whether evidence of adverse health consequences on tenant was persuasive coming from a person not medically qualified. | Beechwood Homes (NSW) Pty Ltd v Hassos (No 2) [2023] NSWCATAP 235 Consumer and Commercial Division - Home Building Decision of: G Sarginson, Senior Member; K Ransome, Senior Member Catchwords: COSTS – r 38A Civil and Administrative Tribunal Rules 2014 (NSW) – Both parties successful on different issues – Whether proportionate costs order appropriate | Noor v The Owners - Strata Plan No 72939 [2023] NSWCATAP 236 Consumer and Commercial Division - Strata Scheme Decision of: G Blake AM SC, Senior Member; J S Currie, Senior Member Catchwords: APPEALS — Appeal on question of law – Scope of question of law APPEALS — Leave to appeal — Principles governing LAND LAW — Strata title — Owners corporation – maintenance and repair of common property - breach of obligation to maintain and repair common property – where lot affected by water leakage –action for work order and recovery of loss by lot owner from owners corporation pursuant to s 106(5) of the Strata Schemes Management Act 2015 (NSW) – whether action was time barred by s 106(6) of the Act | Elley v Commissioner of Police, NSW Police Force [2023] NSWCATAP 237 Administrative and Equal Opportunity Division Decision of: Hennessy ADCJ, Deputy President; A Boxall, Senior Member Catchwords: APPEAL – administrative review – firearms – revocation of firearm licence – non-disclosure orders – where non-disclosure orders made which prohibited disclosure of some evidence to applicant – principles of open justice and procedural fairness –approach to dealing with confidential evidence which has not been disclosed to the applicant – error on a question of law – adequacy of reasons | Rauf v Vartanian; Vartanian v Rauf [2023] NSWCATAP 238 Consumer and Commercial Division - Home Building Decision of: S Thode, Principal Member; J S Currie, Senior Member Catchwords: APPEALS – BUILDING AND CONSTRUCTION – contract not in writing –need to prove loss or damage arises – new decision substituted. | FHH v Port Stephens Council [2023] NSWCATAP 239 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; Dr R Dubler SC, Senior Member Catchwords: ADMINISTRATIVE LAW – privacy – whether personal information was disclosed – whether personal information was in the public domain APPEAL – whether the Tribunal failed to address submissions of the Appellants | Singh v Health Care Complaints Commission [2023] NSWCATAP 240 Occupational Division Decision of: Hennessy, ADCJ, Deputy President; Dr R Dubler SC, Senior Member Catchwords: OCCUPATIONS – whether an interlocutory decision in respect of a summons to produce in proceedings in the occupational division of the Tribunal is a decision made for the purposes of the Health Practitioner’s Regulation National Law (NSW) within the meaning of clause 29(1)(d) of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW) – whether accordingly such a decision is ‘not internally appealable’ pursuant to s 32 of the Civil and Administrative Tribunal Act 2013 (NSW). APPEAL – whether an interlocutory decision in respect of access to documents produced on a summons is not internally appealable by reason of the decision being in proceedings made for the purposes of the Health Practitioner’s Regulation National Law (NSW) within the meaning of clause 29(1)(d) of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW) | Shariful v Freitas [2023] NSWCATAP 241 Consumer and Commercial Division - Residential Tenancy Decision of: A Suthers, Principal Member Catchwords: Practice and Procedure – orders for non-disclosure or non-publication | Crystele Designer Homes Pty Ltd v Wood [2023] NSWCATAP 242 Consumer and Commercial Division - Home Building Decision of: A Suthers, Principal Member; G Blake AM SC, Senior Member Catchwords: APPEALS — Appeal on question of law – Scope of question of law APPEALS — From exercise of discretion — Acting on the wrong principle APPEALS — Leave to appeal — Principles governing – Leave to appeal refused BUILDING AND CONSTRUCTION – Residential building work – Statutory warranties under Home Building Act 1989 (NSW) – Claims by owner against builder – Whether single cause of action for breach of contract – Whether amendments to introduce new defects more than two years after completion of building work should be permitted – Money order made against the builder | Roberts v The Owners – Strata Plan No 4393 (No 2) [2023] NSWCATAP 243 Consumer and Commercial Division - Strata Scheme Decision of: G Curtin SC, Senior Member; E Bishop SC, Senior Member Catchwords: COSTS — whether amount claimed or in dispute in proceedings more than $30,000 — whether there are any “special circumstances” to warrant an award of costs — amount claimed or in dispute not more than $30,000 — no special circumstances — costs not awarded | | Gallagher v Northern NSW Local Health District [2023] NSWCATAP 245 Administrative and Equal Opportunity Division Decision of: A Suthers, Principal Member Catchwords: APPEALS — Leave to appeal — Decision to refuse application for a party to be represented by a non-legally qualified representative — Matter of practice and procedure — Decision reached not unreasonable or plainly unjust — No material consideration ignored — House v The King error not made out — Leave to appeal refused — Question redetermined with further evidence – Considerations regarding non-qualified persons representing parties – What constitutes engaging in legal practice — Non disclosure order sought — Principles to be considered | Taphouse Investments Pty Limited v Independent Liquor & Gaming Authority (No. 2) [2023] NSWCATAP 246 Administrative and Equal Opportunity Division Decision of: P Durack SC, Senior Member; J Lucy, Senior Member Catchwords: COSTS-appeal from Tribunal decision in administrative review proceedings-appeal dismissed pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 (NSW) because misconceived and lacked substance since appeal was moot-respondent’s application for costs of the appeal under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – whether there were special circumstances warranting an award of costs. | Jeyarajah v Evans [2023] NSWCATAP 247 Consumer and Commercial Division - Residential Tenancy Decision of: S Thode, Principal Member; J McAteer Senior Member Catchwords: LEASES AND TENANCIES – Breach of tenancy agreement – No evidence – Assessment of damages | Singh v Zamaneh [2023] NSWCATAP 248 Consumer and Commercial Division - Home Building Decision of: S Thode, Principal Member; J S Currie, Senior Member Catchwords: APPEALS – error on a question of law – denial of procedural fairness not established – no misapplication of law | | | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Appeal Panel Decisions Digest should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication. |
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