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| NCAT Appeal Decisions Digest March 2017 Decisions
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The NCAT Appeal Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
The following NCAT Appeal Panel decisions were handed down during the month of March 2017. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWCATAP 62
Consumer & Commercial Division - Social Housing
Judgment of: Hennessy LCM, Deputy President; K Rosser, Principal Member
The Appeal Panel held that s 154E of the Residential Tenancies Act 2010 (NSW) (RT Act) does not apply to “no grounds” termination orders made under s 85(3) of the RT Act. Section 154E of the RT Act relevantly states that:
“154E Exercise of discretion to make termination order
(1) In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following:
(a) the effect the tenancy has had on neighbouring residents or other persons,
(b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated,
(c) the landlord’s responsibility to its other tenants,
(d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord,
(e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal…”
The following principles governing statutory interpretation may be derived from the Appeal Panel’s reasons:
1) The history of the legislative scheme may be helpful in discerning what parliament intended when it enacts a new provision: Palgo Holdings v Gowans [2005] HCA 28 at [12]-[21] and [29]-[30], Reasons at [13];
2) Regard may be given to the fact that the certain words in an older provision are not included or deleted: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 366-368, Reasons at [20];
3) However, the omission of those words cannot result in an interpretation that is not apparent on its fact, especially if there is a rational explanation for the change: DC Pearce and RS Geddes, Statutory Interpretation in Australia, (8th ed 2014, Lexis Nexis Butterworths); Walsh v Permanent Trustee Australia Ltd (1996) 21 ACSR 213 at 215, Reasons at [20];
4) A provision must be read in the context of the whole Act: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 315, Reasons at [22];
5) The heading of a provision is not to be read as part of the Act, but may be treated as extrinsic material, which can be taken into account in the circumstances set out in s 34(1) of the Interpretation Act 1987 (NSW), Reasons at [24];
6) Regard shall be given to the purpose or objects of the legislation: s 33 of the Interpretation Act, Reasons at [26];
7) Nevertheless, legislation may contain competing purposes or objectives: Victims Compensation Fund Corporation v Brown (2002) 54 NSWLR 668 at 672, Reasons at [29];
This decision has been set aside on appeal by Adamson J in Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWSC 424. The forthcoming Legal Bulletin will contain a summary of the judgment.
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Clark v Electrical Home-Aids Pty Ltd [2017] NSWCATAP 63
Consumer & Commercial Division - General
Judgment of: G Curtin SC, Senior Member; T Simon, Senior Member
The Appeal Panel dismissed an appeal from the Tribunal below on a number of grounds, including that the Tribunal at first instance:
(1) Failed to address and determine the issues before it, relating to the application of s 18 of the Australian Consumer Law (ACL) (at [41]-[42]);
(2) Failed to give proper reasons, as it did not refer to all the evidence in its reasons (at [52]);
(3) Made findings of fact based on no evidence (at [62]-[63]); and
(4) Failed to take judicial notice, in circumstances where the Tribunal should have (at [73], [78]-[79]).
On the first ground of appeal, the Appeal Panel affirmed the decision of the Tribunal at first instance, holding (at [45]) that it had correctly applied the relevant principles governing the question of silence as to misleading or deceptive conduct, as derived from Demagogue Pty Ltd v Ramenensky Pty Ltd (1992) 39 FCR 31; FCA 557, Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited (2010) 241 CLR 357; HCA 31 and Semrani v Manoun; Williams v Manoun [2001] NSWCA 337. The Appeal Panel (at [46]) summarised these principles as follows:
“…
(1) the question is whether, having regard to all relevant circumstances, there has been conduct which is misleading or deceptive;
(2) the characterisation of conduct will be undertaken by reference to its circumstances and context;
(3) silence may be a circumstance to be considered;
(4) the knowledge of the appellant may be relevant;
(5) common assumptions and practices prevailing in a particular profession, trade or industry may be relevant;
(6) the judgment which looks to reasonable expectation of disclosure as an aid to characterising non-disclosure as misleading or deceptive is objective;
(7) unless there is a reasonable expectation that if some relevant fact exists it will be disclosed, it is difficult to see how silence could support the inference that that fact does not exist;
(8) silence may more readily lead to a finding of breach where there is a duty of disclosure; and
(9) a person cannot engage in misleading or deceptive conduct unless the person has actual knowledge of the matter said to be misleading or deceptive.”
On the second ground of appeal, although the Tribunal did not refer to all the evidence before in its reasons, the Appeal Panel (at [56]) held that “such a ground should only be accepted in circumstances where the record of the trial or other evidence persuasively suggests the Tribunal did not properly consider a party’s case."
Furthermore, the Appeal Panel (at [53]-[55]) considered the principles governing a court or tribunal’s duty to give proper reasons. Generally, reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue: Whisprun Pty Ltd v Dixon [2003] HCA 48 at [62]. However, decision-makers are still required to refer to substantial or significant arguments, issues and evidence in their reasons: Baker v David [2015] NSWCA 235 at [24].
On the third ground of appeal, the Appeal Panel followed Fabrication and Erection Pty Ltd v Honeysett [2009] NSWCA 134 at [63] and held that, in the absence of any direct evidence, the Tribunal was entitled to draw an inference from objective facts. Accordingly, an inference of this kind, based on available objective facts, would not be one based on “no evidence” (at [64]).
On the fourth ground of appeal, the Appeal Panel held that the Tribunal had not erred in declining to take judicial knowledge in the circumstances before it. As a starting point, the Appeal Panel observed (at [80]) that s 144 of the Evidence Act 1995 (NSW) (Evidence Act) displaces the common law doctrine of judicial notice: Gattellaro v Westpac Banking Corporation [2004] HCA 6 at [17]; Aytugrul v R [2012] HCA 15 at [21]. Subsequently, the Appeal Panel considered (at [81]-[83]) the application of the Evidence Act in the light of s 38(2) of the NCAT Act, which provides that the Tribunal is not bound by the rules of evidence. Nevertheless, the exercise of the Tribunal’s freedom from the rules of evidence should be subject to the cautionary observation that those rules reflect a concerted attempt to evolve a method of inquiry best calculated to prevent error and elicit truth: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 at [17].
Accordingly, the Appeal Panel held (at [87]) that, although “[s] 38(2) of the NCAT Act says that the Tribunal is “not bound by” the rules of evidence, it is not a prohibition upon the Tribunal applying them if it sees fit.” In the present case, the Appeal Panel held (at [90]-[94]) that the “common knowledge” submitted by the appellant was “reasonably open to question”, contrary to s 140(1) of the Evidence Act, and therefore merely amounted to conjecture. |
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Gassman & Anor v Peck [2017] NSWCATAP 66
Consumer & Commercial Division - Home Building
Judgment of: Hon G Mullane ADCJ; J Wakefield, Senior Member
The Appeal Panel made clear that the Tribunal has the power to make an order for costs, even in circumstances where proceedings have been determined by consent orders.
Following the statement of McHugh J in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622 at 625, the Appeal Panel held (at [71]) that, although the general rule is that an award of costs follows the event, there is no authority preventing a court or tribunal from making a costs order where there has been no hearing on the merits.
Indeed, in Ex Parte Lai Qin, it was held (at 625) that:
“In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. … Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried.”
Furthermore, the Appeal Panel (at [72]) observed that this dictum had been followed and applied in a number of decisions of the Supreme Court of NSW and the Tribunal, see for example: Mabel Dorothea Fligg v The Owners Strata Plan 53457 [2012] NSWSC 230; Transfield Services (Australia) (Pty Ltd) v James Gaha [2012] NSWSC 865 (at [27]); Farah v Elias [2015] NSWSC 1417 (at [17]); Hertslet v Doherty; Doherty v Hertselt [2016] NSWCATAP 46 (at [28]); and Glover v Buckton Building Pty Limited [2015] NSWCATCD 146 (at [60]).
Subsequently, the Appeal Panel made orders (at [104]) that the respondent pay the costs of the appellants for the first instance proceedings and the appeal, on the basis that:
1) the respondent’s conduct had unreasonably prolonged proceedings (at [93]);
2) the appellants were “almost certain to have succeeded if the proceedings were determined by a defended hearing” (at [95]); and
3) the respondent had “effectively surrendered… to the claim of the [appellant]”.
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Keyword summaries for all NCAT Appeal Panel decisions made during March 2017.
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ALZ v Safework NSW [2017] NSWCATAP 51
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: Hennessy LCM, Deputy President; J Currie, Senior Member Catchwords: PRIVACY – health information – complaint about conduct of internal review into previous contravention of Privacy and Personal Information Protection Act 1998 (NSW) and Health Records and Information Privacy Act 2002 (NSW) - meaning of “lawful purpose” when collecting personal and health information - relationship of Information Protection Principles and Health Privacy Principles to one another – effect of contravention of collection principles on contravention of use principles |
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Edwards v CohenHandler Pty Ltd [2017] NSWCATAP 53
Consumer & Commercial Division - Commercial
Judgment of: K P O'Connor AM ADCJ, Deputy President, Appeals; A Boxall, Senior Member Catchwords: COSTS – Costs order at first instance - Appeal – Adequacy of Reasons - Whether error in the exercise of discretion |
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Bridgford & Anor v Brien & Ors [2017] NSWCATAP 54
Consumer & Commercial Division - Tenancy
Judgment of: M Harrowell, Principal MemberCatchwords: STAY – applicable principles – interests of justice – agreement to terminate residential tenancy agreement on conditions – orders not giving effect to agreement |
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Abdel-Messih v Azzi [2017] NSWCATAP 56
Consumer & Commercial Division - Tenancy
Judgment of: A Britton, Principal Member; D Robertson, Senior MemberCatchwords: LEASES – Residential Tenancies Act – landlord’s obligation to repair – no obligation to improve facilities or supply facilities not present at commencement of lease – landlord’s covenant for quiet enjoyment – not breached by head lessor informing sub-tenants, accurately, that notice of termination had been served on head-tenant PRACTICE AND PROCDURE - — whether Appeal Panel obliged to consider submissions filed after hearing without leave PRACTICE AND PROCEDURE — legal practitioner acting as McKenzie friend |
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Le v Gallego [2017] NSWCATAP 58
Consumer & Commercial Division - Commercial
Judgment of: P Callaghan SC, Principal Member; D Robertson, Senior MemberCatchwords: CONTRACTS – Retail Leases – no written agreement – whether evidence disclosed an objective intention to enter into a lease |
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Kennett v Financial Ombudsman Service Ltd [2017] NSWCATAP 59
Consumer & Commercial Division - Consumer Claim
Judgment of: Hennessy LCM, Deputy President; T Simon, Senior MemberCatchwords: STATUTORY INTERPRETATION – meaning of s 79F(1) of Fair Trading Act 1987 – whether that provision requires that, to constitute a consumer claim, the services must be provided in trade or commerce |
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Wall v Barham [2017] NSWCATAP 61
Consumer & Commercial Division - Tenancy
Judgment of: A Britton, Principal Member; K Rosser, Principal MemberCatchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL — whether refusal to give appellant an extension of time to prepare documents constitutes a denial of procedural fairness — whether appellant has established the Tribunal “refused to hear” from her |
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Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWCATAP 62
Consumer & Commercial Division - Social Housing
Judgment of: Hennessy LCM, Deputy President; K Rosser, Principal MemberCatchwords: STATUTORY CONSTRUCTION – whether, when making an order under s 85 of the Residential Tenancies Act 2010 (NSW) terminating a periodic agreement where the tenant is a social housing tenant, the Tribunal is obliged to take into account the matters listed in s 154E |
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Clark v Electrical Home-Aids Pty Ltd [2017] NSWCATAP 63
Consumer & Commercial Division - Consumer Claim
Judgment of: G Curtin SC, Senior Member; T Simon, Senior MemberCatchwords: CONSUMER LAW – misleading and deceptive conduct. CONSUMER LAW – relief in relation to unfair terms Australian Consumer Law (NSW) s 23 and 24 APPEAL – Civil and Administrative Tribunal (NSW) – Consumer and Commercial Division – Extension of time to appeal question of law – a constructive failure to exercise jurisdiction – insufficient reasons – no evidence – irrelevant considerations – wrong finding of fact – other grounds –- decision not fair and equitable – significant new evidence |
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Galdona v Peacock [2017] NSWCATAP 64
Consumer & Commercial Division - Home Building
Judgment of: J Harris SC, Senior Member; D Goldstein, Senior MemberCatchwords: ADEQUACY OF REASONS - work orders under the Home Building Act - rectification as the preferred outcome under s.48MA of the Home Building Act 1989 - failure to take into account relevant considerations |
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Pathways Psychology Institute Pty Ltd v RTO Experts Pt Ltd [2017] NSWCATAP 65
Consumer & Commercial Division - Consumer Claim
Judgment of: P Durack SC, Senior Member; D Charles, Senior MemberCatchwords: APPEAL – consumer claim – discharge of contract for consulting services – contract mutually abandoned - restitution for part of contract price – whether several payments for distinct components of consideration that failed – ACL, NSW guarantees not applicable |
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Gassman & Anor v Peck [2017] NSWCATAP 66
Consumer & Commercial Division - Home Building
Judgment of: Hon G Mullane ADCJ, Principal Member; J Wakefield, Senior MemberCatchwords: COSTS- building case- settled without hearing- appeal against refusal to order costs |
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ZDV v ZDW [2017] NSWCATAP 68
Guardianship Division
Judgment of: Hennessy LCM, Deputy PresidentCatchwords: STAY – where 30 day guardianship order appointing the Public Guardian made – subject person in hospital - daughter of subject person sought stay of decision so subject person could return to usual place of residence – utility of appeal when order made on temporary basis – referral to mediation |
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Bojkovski v NSW Land and Housing Corporation [2017] NSWCATAP 69
Consumer & Commercial Division - Social Housing
Judgment of: Hennessy LCM, Deputy PresidentCatchwords: COSTS –Appellant’s application for appeal to be reinstated refused – whether Tribunal should order the Appellant to pay the Respondent’s costs – special circumstances required - failure to provide material to Respondent as directed – late compliance with the timetable – disadvantage to Respondent |
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ZDB v The University of Newcastle [2017] NSWCATAP 70
Administrative & Equal Opportunity Division - Anti-Discrimination
Judgment of: Wright J, President; DAC Robertson, Senior MemberCatchwords: DIRECT DISCRIMINATION – whether alleged conduct engaged occurred “on the ground of” disability – whether “imputed knowledge” sufficient to support finding under s 49B(1)(a), Anti-Discrimination Act 1977 (NSW) – imputed knowledge not relevant or helpful INDIRECT DISCRIMINATION – evidence of proportions of base group who comply and do not comply with requirement, under s 49B(1)(b), Anti-Discrimination Act 1977 (NSW) – judicial notice of effect of depression - insufficient to establish required relationship of proportions FINDINGS OF FACT – whether fact finding of Tribunal at first instance conducted in an orthodox and reasonable manner – no perverse fact finding – no irrelevant considerations taken into account – relevant considerations not ignored – relevant evidence or material not ignored PROCEDURAL FAIRNESS – self-represented litigant - the duty of a court or tribunal to give assistance to give a self-represented litigant – court or tribunal required to ensure the hearing is fair to both parties – Tribunal did not fail in its duty to give assistance to the appellant as a self-represented litigant |
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Hoque v ARZ Building & Constructions Pty Ltd [2017] NSWCATAP 71
Consumer & Commercial Division - Consumer Claim
Judgment of: J Harris SC, Senior Member; Dr J Renwick SC, Senior Member Catchwords: APPEAL – questions of law – building contract – errors of law established – matter remitted for consideration according to law |
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Fardoulis v Sony Australia Limited [2017] NSWCATAP 72
Consumer & Commercial Division - Consumer Claim
Judgment of: M Harrowell, Principal Member; L Pearson, Principal MemberCatchwords: ADEQUACY OF REASONS - rejection of physical evidence of state of goods when returned following repair, finding implicitly rejecting evidence of witness, evaluation of relevant evidence. Leave to appeal - decision not fair and equitable or against the weight of evidence. |
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Brett v Rowland [2017] NSWCATAP 73
Consumer & Commercial Division - Consumer Claim
Judgment of: Hon D Cowdroy OAM ADCJ QC, Principal Member; G Sarginson, Senior MemberCatchwords: APPEAL - Consumer and Commercial Division of Civil and Administrative Tribunal - Grounds of appeal - No error of law - No substantial miscarriage of justice |
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Abdel-Messih v Dai [2017] NSWCATAP 76
Consumer & Commercial Division - Tenancy
Judgment of: M Harrowell, Principal Member; D Fairlie, Senior MemberCatchwords: LEAVE TO APPEAL – Clause 12 Schedule 4 |
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