NCAT Appeal Panel Decisions Digest Issue 9 of 2024 |
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 September 2024: |
FTB v Children’s Guardian [2024] NSWCATAP 174: An Appeal Panel dismissed an appeal from a decision which refused to suspend the extended reporting obligations of FTB who became subject to such obligations after having committed sex offences and serving a custodial sentence. The Appeal Panel found that it needed to be satisfied there was no “risk to the safety of children” generally, rather than a risk only from harm caused by being a victim of a Class 1 or 2 offence, as those terms are defined in the Child Protection (Offenders Registration) Act 2000 (NSW) (CPOR Act). The Appeal Panel found NCAT at first instance had correctly understood the relevant legal test and came to a conclusion that was rational and based on the evidence provided.
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Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. What is the relevant test to determine whether an applicant poses a risk to the safety of children under s 16(4) of the CPOR Act?
FTB v Children’s Guardian [2024] NSWCATAP 174 Administrative and Equal Opportunity Division Armstrong J, President; A Suthers, Principal Member
In sum: Section 16(4) of the CPOR Act requires NCAT to consider that a registrable person does not pose a “risk to the safety of children”. It was put in K, MP v Commissioner of Police [2017] SASC 38 at [15], in respect of equivalent legislation that, “[u]nless the Court reaches a state of actual satisfaction that the registrable offender does not pose a risk to the safety and well-being of any child or children, it cannot exercise the power to suspend the registrable offender’s reporting obligations.” The requisite state of satisfaction is that there existed “no real and appreciable risk”.
Facts: FTB (the appellant) was convicted of sex offences and served a custodial sentence until release in 2008. Upon release, FTB remains a ‘registrable person’ because he was convicted of a ‘registrable offence’, being a Class 1 or 2 offence outlined in s 3 of the CPOR Act. This has the intended consequence that FTB is required to comply with reporting obligations under the CPOR Act, in his case for a period of 15 years (CPOR Act, s 14A). FTB’s reporting period would have expired on 15 February 2023 had the period not been extended under s 15. Various provisions in s 15 were enlivened when FTB travelled outside NSW for a total period of 1,329 days to places where he was not required to report, the majority being in the United States which does not have equivalent reporting obligation laws. As a result, FTB’s reporting period was extended by 1,329 days to 7 October 2026.
However, in 2017, the Commonwealth Parliament passed legislation requiring registerable persons to obtain permission from police prior to engaging in overseas travel where permission was previously not required (Criminal Code Act 1995 (Cth), Div 271A). FTB sought approval for overseas travel from NSW Police in 2022 which was refused.
Under s 16(3A) of the CPOR Act, a person subject to reporting obligations may apply for a suspension of the order in respect of the extended period, but s 16(4) provides that NCAT may only suspend such an order if satisfied that “the person the subject of the proposed order does not pose a risk to the safety of children”. FTB applied to NCAT to have his reporting obligations suspended on the ground that he does not pose a risk to the safety of children. At first, instance, the Administrative and Equal Opportunity Division of NCAT declined to make an order pursuant to s 16(3A) of the CPOR Act suspending FTB's reporting obligations. FTB appealed that decision to NCAT’s Appeal Panel raising several grounds of appeal.
On appeal, FTB submitted that the definition of “risk to sexual safety of children” in s 3AA of the CPOR Act means that the aim of the CPOR Act, and of s 16(4), is to protect children “specifically from harm caused by being a victim of a Class 1 or Class 2 offence”. The phrase in s 3AA is used in various sections of the CPOR Act, however is not found in s 16(4). Section 16(4) requires NCAT to consider that a registrable person does not pose a “risk to the safety of children” – a broader formulation than that defined in s 3AA. FTB also submitted that NCAT at first instance applied the wrong legal test, seeming to assert FTB needed to be “positively risk-free”, and that his time spent in the United States should be viewed differently, given its robust legal system.
Held (refusing leave to appeal; dismissing the appeal on questions of law): (i) The phrase “risk to the safety of children” used in s 16 of the CPOR Act does not mean only from harm caused by being a victim of a Class 1 or 2 offence. If Parliament wanted to amend the test in s 16 to reflect the new concept of risk to the lives or sexual safety of children, it would have done so when that concept was introduced into the CPOR Act. Where Parliament uses a specific phrase by reference to a defined term, that use should be considered deliberate. Similarly, where it deliberately uses different terms in the same enactment, those terms should be construed as having different meanings. FTB is essentially seeking a dispensation from a statutory scheme that already applies to him, which is a logical reason for Parliament to have implemented a broader test (at [30], [41]-[42]). |
(ii) NCAT at first instance did not apply the wrong legal test in determining whether it considered FTB to pose a risk to the safety of children. NCAT clearly did not understand the test to be that FTB needed to be “positively risk-free” as submitted by FTB, this idea only being apparent from the respondent’s submissions rather than from the Tribunal’s reasoning. A more desirable formulation of the test was put in K, MP v Commissioner of Police [2017] SASC 38 at [15], in respect of equivalent legislation: “Unless the Court reaches a state of actual satisfaction that the registrable offender does not pose a risk to the safety and well-being of any child or children, it cannot exercise the power to suspend the registrable offender’s reporting obligations.” Additionally, NCAT correctly understood the requisite state of satisfaction to mean there existed “no real and appreciable risk” (see Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949 at [42]; CXZ v Children’s Guardian [2020] NSWCA 338) (at [46], [51]). |
(iii) Section 15 of the CPOR Act which concerns suspension and extension of reporting obligations, is explicit in stating that the period of a registerable person’s reporting obligations will be extended where the registrable person travels outside Australia for one month or more, and is not required to report under any corresponding Act. Under the Child Protection (Offenders Registration) Regulation 2015 (NSW), United States law is not listed as a corresponding Act. The fact that the United States’ “legal and policing systems are robust” is not a matter for consideration under s 15 (at [67]-[70]). |
2. When will leave be granted to appeal from a decision of NCAT’s Consumer and Commercial Division on the basis there exists new evidence relevant to the proceedings?
Lewis v David Thomas Driving Adventures Pty Ltd [2024] NSWCATAP 170 Consumer and Commercial Division - General G Ellis SC, Senior Member; G Burton SC, Senior Member
In sum: An Appeal Panel may grant leave to appeal from a decision made in the Consumer and Commercial Division where the Appeal Panel is satisfied that a party may have suffered a substantial miscarriage of justice on the basis that “significant new evidence” has arisen, being evidence that was not reasonably available at the time of the proceedings under appeal (NCAT Act, Sch 4, cl 12(1)(c)). Significant new evidence here included where the appellant had only recently learned how to obtain metadata which indicated that the respondent had altered evidence which was critical at first instance.
Facts: The appellant had purchased a European driving tour for $15,000 due to commence in September 2023 from the respondent. The appellant cancelled the booking orally in May 2023, and by email in June 2023, and a dispute arose as to a refund of the $15,000. NCAT at first instance denied the appellant’s claim for a refund based on the booking policy. The appellant then appealed that decision to NCAT’s Appeal Panel, albeit out of time, submitting that the evidence before NCAT at first instance regarding the wording of the respondent’s booking policy was not correct, and had been changed on the respondent’s website after the NCAT application was made. The appellant explained that his reason for relying on new evidence was that he had only recently learned how to obtain metadata which would show the respondent’s website, which was evidence of the offer made to the appellant, was changed.
Additionally, the appellant submitted that another applicant had made the same claim against the respondent, in the unreported decision of Burgess, and had received a full refund. The Appeal Panel was then required to consider whether an extension of time to lodge the appeal should be granted. The appellant explained he had waited for the decision in Burgess and expected the outcome of that application to match the outcome in his own application and, when it did not, he pursued the appeal.
Held (allowing the appeal, remitting the proceedings to a different constituted Tribunal): (i) The new evidence provided is significant and was not reasonably available to the appellant at the time of the hearing at first instance. The significant prospect of the offer having different wording, as well as the fact a different outcome occurred in a seemingly similar application, demonstrates there exists a significant risk there has been a substantial miscarriage of justice, such that leave should be granted. It would be unjust to allow the decision at first instance to stand given the uncertainty of, firstly, the competing narratives as to the wording of the respondent’s offer and, secondly, the significant new evidence as to the alleged alteration to the website following the appellant’s application to NCAT (at [55]-[56]). |
(ii) Leave should also be granted in relation to an extension of time to appeal in light of the length and reason for the delay, the fact the appellant’s case is fairly arguable and that any prejudice suffered by the respondent can be addressed. While the appellant’s Notice of Appeal was lodged 14 weeks after orders were made in favour of the respondent, it is understandable that the appellant was motivated to appeal by the outcome in Burgess. Additionally, while the respondent has expressed that it would have pursued an appeal in Burgess had it known the appellant would pursue its appeal partly based on that outcome, the respondent may still pursue an appeal in Burgess seeking an extension of time. The appellant’s case has sufficient strength to prevail over the delay in lodging the appeal and any resulting prejudice to the respondent (at [62]-[65]). |
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Lewis v David Thomas Driving Adventures Pty Ltd [2024] NSWCATAP 170 Consumer and Commercial Division - General Decision of: G Ellis SC, Senior Member; G Burton SC, Senior Member Catchwords: APPEALS – Time to appeal extended – leave to appeal granted – significant new evidence – inability to determine issues – need to remit for rehearing |
YHG v Public Guardian [2024] NSWCATAP 171 Guardianship Division Decision of: A Britton, Deputy President; A Boxall, Senior Member (Legal); L Stewart, General Member Catchwords: GUARDIANSHIP – review of guardianship order under s 25(2) Guardianship Act 1987 (NSW) –whether Tribunal failed to conduct review afresh PROCEDURAL FAIRNESS – whether Tribunal failed as required by 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) to ensure that the appellant had a reasonable opportunity to be heard PROCEDURAL FAIRNESS – whether Tribunal failed as required by 38(5)(a) of the NCAT Act to take such measures as are reasonably practicable to ensure that the appellant understood the nature of the review proceedings EVIDENCE – whether Tribunal erred by taking account evidence given/ submission made by a person alleged to have an interest in the outcome of proceedings EXPERT EVIDENCE – whether report prepared by expert was inadmissible because the expert declined to express an opinion about a key issue in dispute |
Elwell v Chav [2024] NSWCATAP 172 Consumer and Commercial Division Decision of: M Harrowell, Deputy President; J McAteer, Senior Member Catchwords: DIVIDING FENCES – sufficient dividing fence – relevant considerations – fence not on boundary line – no evidence of impact on user where fence in existence for 10 years – need for repairs |
Horan v The Owners – Strata Plan No. 68307 (No 2) [2024] NSWCATAP 173 Consumer and Commercial Division - Strata Schemes Decision of: M Harrowell, Deputy President; G Sarginson, Senior Member Catchwords: COSTS – r 38 of the Civil and Administrative Tribunal rules 2014 (NSW) – r 38A application of rules to appeals – usual order for costs – circumstances warranting departure from the usual order not established |
FTB v Children’s Guardian [2024] NSWCATAP 174 Administrative and Equal Opportunity Division Decision of: Armstrong J, President; A Suthers, Principal Member Catchwords: APPEALS – questions of law – meaning of s 16(4) of the Child Protection (Offenders Registration) Act 2000 (NSW) – how the question of whether a party poses “no risk to the safety of children” is to be assessed – nature of the Tribunal’s task in considering application under s 16(3A) of the Child Protection (Offenders Registration) Act 2000 (NSW) |
St John v Hall [2024] NSWCATAP 175 Consumer and Commercial Division Decision of: S de Jersey, Senior Member; J Connelly, Senior Member Catchwords: LEASES AND TENANCIES – bond claim – compensation - decision against the weight of evidence - significant new evidence |
Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176 Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; D G Fairlie Senior Member Catchwords: ADMINISTRATIVE LAW — whether the application for summary dismissal on jurisdictional grounds is an ancillary decision or interlocutory decision –– the Tribunal’s administrative review jurisdiction to review conduct — public sector agency’s disclosure of “personal information” - “personal information” under the Privacy and Personal Information Protection Act 1998 (NSW) — s 4(3)(h) complaint information under Part 8A of the Police Act 1990 excluded from “personal information” |
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Shaw v Alt [2024] NSWCATAP 178 Consumer and Commercial Division Decision of: M Harrowell, Deputy President; S de Jersey, Senior Member Catchwords: ADMINISTRATIVE LAW – jurisdiction of the Tribunal under Part 6A of the Fair Trading Act 1987 (NSW) – whether the respondent is a supplier – meaning of the expression “carry on (or purporting to carry on) a business” – findings concerning whether a pony was owned by an agricultural partnership or by an individual – whether the Tribunal has jurisdiction to determine the sale of a pony – jurisdiction of the Tribunal concerning a contract not entered into in the course of carrying on a business – leave to appeal refused |
YJY v YJX [2024] NSWCATAP 179 Guardianship Division Decision of: A Britton, Deputy President; J T Kearney, Senior Member; F N Given, General Member Catchwords: EVIDENCE – whether no evidence to support impugned findings STATUTORY CONSTRUCTION – whether Tribunal misconstrued ss 15(3) and 17 of the Guardianship Act 1987 (NSW) APPEAL – leave to appeal – whether impugned findings were “against the weight of evidence” |
Baker v The Owners – Strata Plan No. 9348 [2024] NSWCATAP 180 Consumer and Commercial Division Decision of: S Westgarth, Deputy President; G Ellis SC, Senior Member Catchwords: APPEALS – Finding of breach of duty to maintain and repair common property - exercise of discretion - no error of law- no basis for granting leave to appeal |
Chahrouk v Bardouh [2024] NSWCATAP 181 Consumer and Commercial Division - Home Building Decision of: R C Titterton OAM, Senior Member; D Fairlie, Senior Member Catchwords: APPEALS – errors other than errors of law – no question of principle |
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Ferguson v Mission Australia [2024] NSWCATAP 183 Consumer and Commercial Division Decision of: D Ziegler, Senior Member; J McAteer, Senior Member Catchwords: APPEALS – procedural fairness – whether decision against the weight of evidence – new evidence. |
Jones v Mega Awesome Kapow Constructions Pty Ltd (No. 2) [2024] NSWCATAP 184 Consumer and Commercial Division - Home Building Decision of: L Wilson, Senior Member; P H Molony, Senior Member Catchwords: Appeals – Appeal Panel’s power to reconsider original costs decision - following reduction in damages awarded on appeal bringing Calderbank offer into play. Costs – Multiple proceedings – Multiple offers of compromise – Ordinary basis – Indemnity basis |
FZK v Department of Customer Service [2024] NSWCATAP 185 Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; J Ledda, Senior Member Catchwords: ADMINISTRATIVE LAW — appeal against administrative review decision under s 55 of the Privacy and Personal Information Protection Act 1998 (NSW) — whether s 16 operates as precondition to providing access under s 14 — jurisdiction of Tribunal at first instance — recusal application — application to correct order in relation to costs of interlocutory application |
Smith v The Owners – Strata Plan No. 43094 [2024] NSWCATAP 186 Consumer and Commercial Division Decision of: S Thode, Principal Member; P H Molony, Senior Member Catchwords: APPEAL – leave to appeal – refused LAND LAW – Strata Title – owners carrying out unauthorised works on common property – action to compel removal of works and restoration of common property. |
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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. |
