NCAT Legal Bulletin Issue 1 of 2024 | The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
This issue features case summaries of recent decisions from the High Court of Australia, Court of Appeal of New South Wales, the Supreme Court of New South Wales and the Supreme Court of Queensland published in December 2023, January and February 2024. | Mitsubishi Motors Australia Ltd v Begovic [2023] HCA 43: The High Court allowed an appeal from a decision which originated in the Victorian Civil and Administrative Tribunal (VCAT) holding that where there exists an inconsistency between two pieces of legislation relating to the same subject matter and enacted by the same legislature, the general provision may need to be subordinated to the specific provision.
| Norkin v The University of New England [2024] HCASL 9: The High Court refused to grant special leave to appeal a decision which originated in NCAT on the basis the appeal did not have sufficient prospects of success. The Court of Appeal had previously found that the lawful purpose of collecting personal information to determine the likelihood of prospective students obtaining a student visa, was directly related to the function or activity of teaching overseas students, such that the exception in s 8(1)(a) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) applied.
| | Commissioner of Police v Ritson [2023] NSWCA 300: The Court of Appeal allowed an appeal which sought to set aside orders made by the Supreme Court, the Appeal Panel and NCAT. It found that NCAT exceeded its power in ordering that the Commissioner perform its obligation under s 14 of the PPIP Act to provide access to personal information “without excessive delay or expense” within 30 days. Additionally, the Court found that the PPIP Act and the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) should operate harmoniously, meaning in this context that the GIPA Act imposes conditions and limitations on the PPIP Act’s s 14 obligation.
| Clarke v Health Care Complaints Commission (No 2) [2024] NSWCA 15: The Supreme Court dismissed an appeal from a decision of NCAT’s to cancel a nurse’s registration with a non-review period of three years. The Court held that the Tribunal made no error, there was no denial of natural justice, and the Tribunal did not err in imposing a non-review period.
| Shapkin v The University of Sydney [2023] NSWSC 1534: The Supreme Court refused to conduct judicial review proceedings of both a first instance decision of NCAT’s Consumer and Commercial Division and an Appeal Panel decision, pursuant to s 34 of the NCAT where “an internal appeal or an appeal to a court could be, or has been, lodged against a decision.” The Court was not satisfied that circumstances existed which would make it appropriate for concurrent appeal and judicial review proceedings.
| | Halil v NSW Land and Housing Corporation (No 2) [2023] NSWSC 1646: The Supreme Court dismissed an appeal originating from a decision of NCAT’s based on a failure to identify any questions of law, questions of general public importance, or any error going beyond the merely arguable.
| | Dyjecinska v Step-Up Renovations (NSW) Pty Ltd [2024] NSWSC 159: The Supreme Court held that where a contract is undated, unsigned and not given to a homeowner (as required by section 7B of the Home Building Act 1989 (NSW) (HBA)), this does not of necessity render the contract unenforceable under section 10(1)(c) of the HBA. This is because legislative intention clearly contemplated removing the prohibition of builder’s enforcing unsigned contracts on the basis this was a minor contravention of the HBA.
| | Ferella as Executor of the Estate of the late Gustavo Ferella v Chief Commissioner of State Revenue [2024] NSWSC 166: The Supreme Court dismissed an appeal from a decision which originated in NCAT as most of the grounds alleged did not involve a question of law, and to the extent that some could be so characterised, they did not raise a question of principle or general importance, or an injustice going beyond what was merely arguable. The executor of the estate was required to pay two land tax assessment notices where the executor alleged an exemption applied on the basis the land was used for primary production under s 10AA of the Land Tax Management Act (NSW).
| McIntosh v Lennon [2024] NSWSC 169: The Supreme Court held that words could be ‘read into’ statutory warranty provisions in the HBA where owner-builders had not obtained the relevant permits to be classified as owner-builders on a literal reading of the HBA. To find otherwise would reward an owner for breaching the HBA, meaning they would not owe statutory warranties to purchasers.
| | | Mitsubishi Motors Australia Ltd v Begovic [2023] HCA 43 13 December 2023 - Gageler CJ, Gordon, Steward, Gleeson, Jagot JJ
In sum: The High Court held that, in circumstances where there exists an apparent inconsistency of statutory requirements relating to the same subject matter and enacted by the same legislature, “the general provision may need to be subordinated to the specific provision in order to alleviate the apparent conflict” (at [67]).
This statement arose in the context of the High Court allowing an appeal from the Victorian Court of Appeal which had originated in VCAT regarding the apparent inconsistency between the Motor Vehicle Standards Act 1989 (Cth) (MVS Act) and s 18 of the Australian Consumer Law (ACL). The MVS Act required that a Mitsubishi MQ Triton be sold with a fuel consumption label, whilst the respondent (Begovic) claimed the appellant (Mitsubishi) had contravened s 18 of the ACL in that the fuel consumption label was misleading and deceptive. Mitsubishi could not import the vehicle without the label being applied to it. The Court applied its decision in R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545, which meant that where Mitsubishi was bound to apply and to maintain the fuel consumption label, Mitsubishi did not, by that conduct, breach s 18 of the ACL. The High Court held that it was necessary to construe s 18 of the ACL consistently with the provisions of the MVS Act which give effect to the safety standard.
Catchwords: Trade practices – Consumer protection – Misleading or deceptive conduct – Where vehicle purchased with fuel consumption label applied in compliance with Motor Vehicle Standards Act 1989 (Cth) and Vehicle Standard (Australian Design Rule 81/02 – Fuel Consumption Labelling for Light Vehicles) 2008 (Cth) – Where specific contents of label prescribed by law – Where evidence of fuel consumption of vehicle substantially exceeding fuel consumption values on label – Where proceedings commenced claiming appellants engaged in misleading or deceptive conduct, contravening s 18 of Australian Consumer Law – Whether appellants engaged in misleading or deceptive conduct in circumstances where required by law to apply fuel consumption label.
Words and phrases – "apparent conflict", "apparent inconsistency", "compulsion", "conduct", "conduct in trade or commerce", "conduct required", "conflict", "contravention of s 18", "field of operation", "general prohibition", "general provision", "mandatory conduct", "misleading or deceptive", "national legislative scheme", "reconciliation of statutory provisions", "representations", "safety standard", "specific provision".
Competition and Consumer Act 2010 (Cth) – Sch 2, ss 2, 18, 106.
Motor Vehicle Standards Act 1989 (Cth) – ss 3, 5, 5A, 7, 9, 10, 10A, 10B, 13A, 14, 17, 18, 41.
Vehicle Standard (Australian Design Rule 81/02 – Fuel Consumption Labelling for Light Vehicles) 2008 (Cth), cll 1. 1, 4. 1, 4. 5. 1, 4. 6. 1, 5. 1, 6. 1, 6. 1. 1, Appendices A, B, C.
Australian Consumer Law and Fair Trading Act 2012 (Vic) – ss 8, 224.
Held (refusing leave to appeal): • Link to the High Court’s case summary is here. | Norkin v The University of New England [2024] HCASL 9 8 February 2024 - Gleeson and Beech-Jones JJ
In sum: The High Court refused to grant an extension of time and dismissed an application for special leave to appeal orders from the NSW Court of Appeal, which refused an application for leave to appeal from a decision of the Supreme Court, which had affirmed a decision of the Appeal Panel, which had dismissed an appeal from a Tribunal decision that had taken no action in the applicant's challenge under the PPIP Act to the collection of personal information. The Court of Appeal held that the University collecting personal information to determine the likelihood of prospective students obtaining a student visa was a lawful purpose, and this was directly related to the function or activity of teaching overseas students, such that the exception in s 8(1)(a) of the PPIP Act applied. That section provides that the University must not collect personal information unless it is “for a lawful purpose that is directly related to a function or activity” of the University. The application for special leave to appeal was not granted on the basis it did not have sufficient prospects of success to warrant a grant of special leave or an extension of time.
Held (refusing leave to appeal): (i) Link to the NCAT Legal Bulletin which summarised the decision before the NSW Court of Appeal is here.
(ii) Link to the NCAT Appeal Panel Bulletin which summarised the decision before the Appeal Panel is here. | Court of Appeal of New South Wales | Woolf v Brandt [2023] NSWCA 290 5 December 2023 - Kirk and Adamson JJA
In sum: The Court of Appeal refused to grant leave to appeal an order made by the District Court summarily dismissing proceedings which had claimed damages for defamation. The defamation proceedings were dismissed by the primary judge on the basis that the predominant purpose of maintaining proceedings was an ulterior one: namely to continue contact and maintain pressure as part of a recriminatory process following the breakdown of the relationship between the two parties. Notably, the Court of Appeal stated that the “ulterior purpose need not be the litigant’s sole purpose” (at [48]). Additionally, where an applicant is also pursuing proceedings for a legitimate purpose, this “does not detract from the finding of abuse of process where the ulterior purpose is the predominant one” (at [48]), notwithstanding that were proceedings concluded in the applicant’s favour, the applicant may have obtained vindication and damages (at [49]).
Catchwords: LEAVE TO APPEAL — PRACTICE AND PROCEDURE — summary dismissal — abuse of process — defamation proceedings — applicant’s predominant purpose an ulterior purpose to maintain contact with respondent — whether finding of ulterior purpose erroneous — whether ulterior purpose sufficient to make proceedings abuse of process where also pursuing legitimate remedy — ulterior purpose need not be sole purpose
LEAVE TO APPEAL — PRACTICE AND PROCEDURE — alleged denial of procedural fairness — where applicant read extensive affidavit near the end of hearing — where applicant sent submissions to primary judge without leave after judgment reserved
LEAVE TO APPEAL — PRACTICE AND PROCEDURE — summary dismissal — Anshun estoppel — whether subsequent interlocutory application for dismissal can be brought in same proceedings
Held (refusing leave to appeal): (i) Link to the Court of Appeal’s case summary is here. | Commissioner of Police v Ritson [2023] NSWCA 300 13 December 2023 - Bell CJ, Stern JA, Basten AJA
In sum: The PPIP Act and the GIPA Act are intended to operate harmoniously as part of the legislative scheme dealing with information held by the NSW government. The effect of s 20(5) of the PPIP Act is to import “conditions and limitations” imposed by the GIPA Act, so as to qualify the right conferred by s 14 of the PPIP Act. Section 14 should also not be interpreted as providing a default requirement for disclosure despite the possible operation of an exemption in the PPIP Act.
Facts: Mr Ritson (the respondent), a former police officer, sent several emails in 2017 and 2018 to the NSW Police Force requesting access to information about him held in its databases. In 2019, after there had been no production of documents in response to his requests, Mr Ritson sought internal review of the requests for personal information, pursuant to s 53 of the PPIP Act. He argued that the NSW Police Force had failed to comply with its obligation under s 14 of the PPIP Act to provide access to personal information “without excessive delay or expense”. The reviewer found no breach of s 14, and noted that a large amount of information was located in relation to one information request, but that further searches relating to the information would constitute “an unreasonable and substantial diversion” of resources, as noted in s 60(1)(a) of the GIPA Act. Mr Ritson then sought external review before NCAT which found the Commissioner of Police (the appellant) breached its statutory obligation in failing to provide the information to Mr Ritson “without excessive delay” as required by s 14 and ordered that the Commissioner perform its s 14 obligation within 30 days. The Commissioner appealed from the Tribunal to the Appeal Panel and then to the Supreme Court, where the Judge agreed with the original orders made by the Tribunal. The Court of Appeal then considered the power to order access to exempt documents under the PPIP Act, and the interaction of the PPIP Act and the GIPA Act.
Held (allowing the appeal; setting aside the decisions of the Supreme Court and the Appeal Panel, and the operative orders made by the Tribunal): (i) The Tribunal exceeded the powers available to it in making an order requiring the breach of s 14 be remedied by providing the documents requested within 30 days. Section 14 should not be interpreted as providing a default requirement for disclosure despite the possible operation of an exemption. To read s 14 of the PPIP Act in isolation would remove any basis for resistance to the production of documents under the specific and general exemptions provided in ss 24, 25 and 27 of the PPIP Act (at [35]-[36]). The Tribunal cannot provide relief involving an order for the production of documents for a breach of s 14 without having found (in the absence of a concession) that no condition or limitation on access was engaged (at [38]-[39]).
(ii) The Court additionally held that the PPIP Act and the GIPA Act are intended to operate harmoniously as part of the legislative scheme dealing with information held by the government (at [52]). The effect of s 20(5) of the PPIP Act is to import “conditions and limitations” imposed by the GIPA Act so as to qualify the right conferred by s 14 of the PPIP Act (at [66]-[68]). Section 14 of the PPIP Act should also be read in the context of the conditions and limitations imposed under s 60 of the GIPA Act which permits the refusal of an access application if dealing with the application would require an unreasonable and substantial diversion of agency resources (at [71]). | Clarke v Health Care Complaints Commission (No 2)[2024] NSWCA 15 7 February 2024 - White, Mitchelmore and Kirk JJA
In sum: The Court of Appeal dismissed an appeal from a decision made by the Tribunal which cancelled the appellant’s (Ms Clarke) registration as a nurse with a non-review period of three years. The Nursing and Midwifery Council lodged a complaint about Ms Clarke (the appellant) with the Health Care Complaints Commission, and the Commission filed an application in the Tribunal’s Occupation Division seeking cancellation of the appellant’s nursing registration. The basis of the complaint concerned Ms Clarke’s ‘impairment’ which meant she did not possess the relevant mental capacity to practise as a nurse. Medical evidence suggested Ms Clarke suffered from bipolar disorder, exhibited psychotic and likely paranoid personality features, though denied she suffered from such. The Court dismissed the appeal with costs and held that that the Tribunal made no error, no denial of natural justice could be established, and that the Tribunal did not err in in imposing a non-review period. Additionally, the Tribunal was entitled, when cancelling the appellant’s registration, to make an order prohibiting her from providing health services for a specified time if satisfied that she posed a substantial risk to the health of members of the public. | Supreme Court of New South Wales | Shapkin v The University of Sydney [2023] NSWSC 1534 7 December 2023 - Campbell J
In sum: The Supreme Court considered an application for judicial review brought by the plaintiff (Mr Shapkin) which sought orders in the nature of certiorari against both the Appeal Panel’s orders and the orders made by the Consumer and Commercial Division of NCAT at first instance.
In relation to the application for a judicial review of the first instance decision, the respondent (University of Sydney) objected to the consideration of this application by the Tribunal on the basis of the power conferred on the Supreme Court by s 34 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to refuse to conduct a judicial review where “an internal appeal or an appeal to a court could be, or has been, lodged against a decision” because the plaintiff was also appealing the orders made by the Appeal Panel. In refusing the application, Campbell J relied upon the authority of Wishart v Fraser (1941) CLR 470; [1941] HCA 8 which stated that an order of a NSW court “confirming on appeal a conviction by a magistrate exercising federal jurisdiction is, while it stands, a bar to any appeal from a magistrate’s decision, direct to the High Court”.
In relation to the application for a judicial review of the Appeal Panel’s decision, Campbell J noted that even where “the legal basis for an order in the nature of certiorari is made out, the Court empowered to make the order may, on discretionary grounds, withhold it. A common basis for withholding the remedy, is when there is an available appeal, covering more or less, the same ground.” (at [10]). | Tsolis v Health Care Complaints Commission [2023] NSWSC 1599 15 December 2023 - Harrison AsJ
In sum: The Supreme Court found no error of law or jurisdictional error in the Tribunal’s decision which found the appellant (Mr Tsolis) guilty of unsatisfactory professional conduct and professional misconduct. Various complaints had been made by patients to the defendant (Health Care Complaints Commission) against Mr Tsolis including the alleged use of inappropriate nicknames, physical or sexualised conduct and an incident where Mr Tsolis took a patient out to dinner where alcohol was consumed knowing the patient had a problem with alcohol at the time and where Mr Tsolis kissed and hugged the patient on the way to her place of residence. The Tribunal viewed the breaches as “a gross abuse of power”. The appellant sought relief from the decision made by the Tribunal and sought that it be set aside and declared invalid. The appeal failed and the orders of the Tribunal were affirmed. | Halil v NSW Land and Housing Corporation (No 2) [2023] NSWSC 1646 22 December 2023 - Chen J
In sum: The tenant (Halil) had appealed two separate Tribunal decisions to the Appeal Panel relating to the termination of her lease by the landlord (NSW Land and Housing Corporation) as well as proceedings relating to rent reduction. Where the rent payable was $435 per week, the tenant had been paying just $110 per week alleging the premises were in a poor condition and that, taking into consideration the condition of the premises, the market rent would be about $110 per week. The tenant commenced proceedings in NCAT relating to a reduction in rent. The landlord commenced proceedings a few months later seeking several orders including for payment of rental arrears and termination of the lease agreement. The Tribunal dismissed the rent reduction proceedings (by reason of non-appearance by the plaintiff) and considered and found in favour of the defendant in the termination proceedings. Although the rent reduction proceedings were subsequently reinstated and later determined by the Tribunal, the termination proceedings were not reinstated. Following a lengthy procedural history, the tenant commenced proceedings in the Supreme Court filing an amended summons with 55 grounds of appeal. The Court dismissed the appeal on the basis that the tenant had failed to identify any questions of law, nor questions of general public importance, nor any error going beyond the merely arguable. | AW v WW (No 2) [2024] NSWSC 146 23 February 2024 - Kunc J
In sum: The Supreme Court dismissed an appeal from the Guardianship Division of the Tribunal on the basis the appeal raised no question of law. The Tribunal at first instance dismissed a guardianship application and a financial management application brought by AW (the appellant) in respect of his 89-year old widowed mother, WW (the defendant). The Court held that the question advanced by the appellant was not a pure question of law, because it would require the Court to investigate the facts before the Tribunal in an inquiry akin to merits review. | Dyjecinska v Step-Up Renovations (NSW) Pty Ltd [2024] NSWSC 159 26 February 2024 - Harrison AsJ
In sum: A written contract that is accepted, other than by written signature, may still constitute a “contract in writing” for the purposes of s 10(1)(b) of the HBA. Where a contract is undated, unsigned and not given to the homeowner (as required by section 7B of the HBA), this will not necessarily make the contract unenforceable by reason of section 10(1)(c) of the HBA. This is because legislative intention relating to s 10 clearly intended to allow builders to enforce unsigned contracts on the basis a contract being unsigned is a minor contravention of the HBA.
Facts: A homeowner (the plaintiff, Dyjecinska) and a builder (the defendant, Step-Up Renovations) negotiated a written residential building contract for renovations to the homeowner’s property. The builder provided the homeowner with a final form of the contract though neither party signed nor dated the contract despite the builder asking the homeowner to provide a signed contract roughly five times. After almost two months of work, the homeowner suspended the works, did not allow the builder to return to the property and complete the works, and refused to pay the builder’s invoices. At first instance, the Tribunal found the homeowner breached and later repudiated the contract by refusing the builder access to the property to complete the works, before purporting to terminate the contract on the basis the builder had not completed the works. The homeowner then appealed this decision to the Appeal Panel on the basis that s 10(1) of the HBA rendered the unsigned and undated contract unenforceable. While the two Appeal Panel members reached different conclusions on this point, the presiding Member’s decision prevailed. The homeowner then sought leave to appeal from the Appeal Panel decision.
The central issues of the appeal concern firstly, whether a written contract that is accepted, other than by written signature, constitutes a “contract in writing” for the purposes of s 10(1)(b) of the HBA and secondly, whether a contract which is undated, unsigned and not given to the homeowner (as required by section 7B) is unenforceable by reason of section 10(1)(c) of the HBA.
Held (refusing the appeal): (i) The Court agreed with the Principal Member that the nature of the protection afforded to consumers under the HBA comprises the acceptance of “the basic requirements at the heart of each contract: that the contract be in writing and sufficiently described to give certainty” (at [68]). The omission of a signature, particularly where the homeowner chose not to sign the contract but requested that the work be undertaken anyway, “does not create statutory uncertainty of the type requiring specific legislative intervention” (at [69]). The contract may still be deemed “in writing” for the purposes of s 10(1)(b).
(ii) Where s 7 identifies mandatory requirements relating to the form of contracts, and s 10(1) relates to the enforceability of contracts and other rights, it would have been a simple matter for the legislature to explicitly state in s 10(1)(b) that any non-compliance with the requirements of s 7 would render the contract unenforceable by the builder. Alternatively, s 10(1)(b) could have expressly required each of the fifteen mandatory requirements in s 7 be present for the purposes of enforceability. The legislature has not taken either approach, instead carefully noting just two of the fifteen requirements are essential for the purposes of enforcement, being that the contract is in writing and that it sufficiently describes the work (at [103]-[104]).
(iii) The Court noted the significance of signing a contract, whether by a full signature or making a mark, in “clearly and unambiguously” setting out what the parties have agreed to and on what terms (at [138]). However, the Court also noted the legislative history of s 10 of the HBA which, prior to amendments made in 2001, included a blanket prohibition under s 10(3) on builders enforcing unsigned contracts. In seeking to interpret the meaning of the provision, the Court and the Appeal Panel turned to the second reading speech of the 2001 amending statute which stated that that the removal of the specific prohibition remedies “the unintended effect of rendering a building contract wholly unenforceable at the suit of the builder merely because of the builder’s very minor contravention of certain provisions of the Act”. The Court held that this strongly suggested the drafters of the legislation specifically intended to remove the prohibition on builders enforcing unsigned contracts under s 10(3) of the HBA on the basis this was a minor contravention of the HBA (at [147]). | Clarke (Naicker) v Health Care Complaints Commission [2024] NSWSC 153 27 February 2024 - Wilson J
In sum: Ms Clarke’s claim substantially reproduced the arguments and claims she made before the Court of Appeal in Clarke v Health Care Complaints Commission (No 2) [2024] NSWCA 15 (above). To permit Ms Clarke’s claim to proceed would be to permit an abuse of process by the re-agitation of substantially the same claim. Per r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW), the Court dismissed the proceedings while dispensing with the need for a full hearing. | Ferella as Executor of the Estate of the late Gustavo Ferella v Chief Commissioner of State Revenue [2024] NSWSC 166 28 February 2024 - Mitchelmore J
In sum: The Supreme Court dismissed an appeal from NCAT’s Appeal Panel which found that the plaintiff (the executor of the Estate of Gustavo Ferella) was required to pay two land tax assessment notices for the years 2019 and 2020. The plaintiff claimed the property was exempt from taxation for these two years on the basis the land was used for primary production under s 10AA of the Land Tax Management Act (NSW) in that it was used for breeding horses. The Tribunal considered that the Ferellas had demonstrated only that horses were maintained on the Property, and not that their maintenance “was for the dominant purpose of primary production”, nor that the use of the land had a “significant and substantial commercial purpose or character”. The Court declined to grant leave to appeal as most of the grounds did not include questions of law; and to the extent that some could be so characterised they did not raise a question of principle or general importance, or an injustice going beyond what was merely arguable. | McIntosh v Lennon [2024] NSWSC 169 29 February 2024 - Payne JA
In sum: The Supreme Court read words into specific provisions of the HBA to align with the consumer protection purpose of the legislation. The Supreme Court held that the definition of “owner-builder” not including a circumstance where an owner who was in effect an owner-builder failed to obtain a permit is clearly the product of legislature oversight. It would otherwise be a perverse outcome where purchasers from owner-builders who had complied with the statutory obligation to obtain a permit would have the benefit of the statutory warranties but purchasers who bought property from owners who had unlawfully carried out residential building work would not.
Facts: The plaintiff (McIntosh) obtained development consent to perform residential building work on a property, representing to the consent authority that a licensed builder would carry out the work as required by s 12 of the HBA. Under s 12(a) of the HBA, Mr McIntosh was required to obtain an owner-builder permit before commencing work. In fact, the plaintiff never obtained such a permit and carried out the work himself. He then sold the property in 2016, and in 2020 it was sold again to the defendants, Mr and Mrs Lennon. In 2021, the defendants commenced proceedings in NCAT seeking an award of damages for breach of the statutory warranties contained in the HBA. The statutory warranties relate to warranties given to subsequent purchasers of a property concerning the quality of the building work. The Tribunal at first instance awarded damages to the defendants for breaches of those warranties in the amount of $95,199.15. Mr McIntosh appealed this finding to the Appeal Panel on the basis that such warranties could not be enforced against him since he was not “owner-builder” under the HBA as he had not been granted the requisite owner-builder permit. The Appeal Panel upheld the findings of the Tribunal at first instance. The plaintiff then appealed to the Supreme Court, the substantive issue again being the meaning of “owner-builder” for the purposes of statutory warranties.
Held (granting leave to appeal; dismissing the appeal): (i) The Supreme Court granted leave to appeal on the basis that the interpretation of “owner-builder” is an issue of public importance affecting those performing residential developmental work (at [37]).
(ii) The Court disagreed with the Appeal Panel’s understanding of the “legal meaning” based on the intractable language of the definition of “owner-builder”. The Appeal Panel held that the legal meaning of “owner-builder” could extend to a person who was required to obtain an owner-builder permit but failed to do so. The Court held that the clear wording of the definition did not leave that construction reasonably open. A literal reading of “owner-builder” would involve a person who does “owner-builder work” under an “owner-builder permit” thereby excluding Mr McIntosh (at [102]). However, statutory warranties are implied in every contract to do residential building work under s 18B(1) of the HBA. This provides a legitimate basis to consider implying words into the definition of “owner-builder”. If the literal meaning was applied there would be an immediate conflict created within s 18B as this would render a category of consumers not entitled to the statutory warranties which s 18B insists are “implied in every contract to do residential building work” (at [103]).
(iii) The Court agreed with the Appeal Panel that the correct approach is to first perform ordinary purposive construction, and if this approach suggests words must be read in to comply with Parliament’s intention, this is an acceptable step in purposive construction (at [148]). In discerning legislative intent, the Court had regard to the second reading speech of the amending legislation which introduced the statutory warranties in s 18B. Relevantly, the speech included the following statement: “The new insurance scheme will apply to all residential building work currently requiring a licence and costing over $5,000.” It is clear that the legislature intended that the statutory warranties were to be implied in all residential building work contracts (at [108]). Beyond the statutory warranties, the Court also considered the HBA’s insurance provisions noting that these sections are designed to protect those who enter contracts for residential building work. The Court discerned that the “intention of the legislature could not have been to exclude from these Parts’ operation those who ought to have, but failed to, obtain an owner-builder permit” (at [117]).
(iv) Additionally, reading in was allowable in this case because the three inhibitory conditions set out in Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531 were met. Firstly, the purpose of the Act was that statutory warranties be applied to all contracts of sale for residential property. Secondly, the definition of “owner-builder” not including a circumstance where an owner-builder failed to obtain a permit is clearly the product of legislative oversight. Thirdly, had the issue been drawn to Parliament’s intention, Parliament would have included the wording “or is required to hold an owner-builder permit to do that work” in its definition of “owner-builder”. Finally, other conditions discussed in other authorities were also met, including the required consistency between the suggested words and the rest of the statute, and the requirement that the alteration in language not be too far-reaching (at [157]). | Supreme Court of Queensland | Johnston & Ors v Commissioner of Police; Sutton & Ors v Commissioner of Police; Witthahn & Ors v Wakefield [2024] QSC 2 27 February 2024 - Martin SJA
In sum: The Supreme Court of Queensland found that directions made by the Commissioner of Police and the Director-General of the Department of Health requiring that employees of the state police and ambulance services receive COVID-19 vaccinations and booster doses were unlawful. Section 58 of the Human Rights Act 2019 (Qld) makes it unlawful for the Commissioner or the Director-General to make a decision that is not compatible with human rights or to fail to give proper consideration to a relevant human right. The Court found that the Commissioner failed to give proper consideration to human rights in making the decision to issue the directions. Although she was provided with Human Rights Compatibility Assessments, she did not consider them before making the directions. The Court also found that Director-General failed to prove he made his directions under an implied term of the relevant employment agreements and so the direction had no force.
Catchwords: ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – DECLARATIONS – where directions were made requiring police and ambulance workers to be vaccinated – where the applicants claim the directions were invalid or unlawful – whether directions for mandatory vaccination against COVID-19 should be quashed and set aside – whether declaration should be made that the directions are invalid or unlawful
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where Police Commissioner empowered to give directions to police officers and staff members “necessary or convenient for the efficient and proper functioning of the police service” - whether the Police Commissioner had the power to make directions requiring vaccination against COVID-19
GENERAL CONRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY – where the Director General of the Department of Health issued a direction to Queensland Ambulance Service staff to be vaccinated against COVID-19 – where the Director General claims the direction was made under an implied contractual term – whether the direction was able to be made pursuant to the implied term of the contracts of employment
HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where directions were made requiring police and ambulance workers to be vaccinated against COVID-19 – where the applicants claim the respondents failed to give proper consideration to human rights relevant to the decision – whether the directions were unlawful and in breach of the Human Rights Act 2019 (Qld)
HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where directions were made requiring police and ambulance workers to be vaccinated – where applicants claim they are being discriminated against due to their political belief or activity – where applicants claim directions not compatible with right to recognition and equality before the law – where applicants claim they are being compelled to be vaccinated with a medicine that has potential life-threatening side effects – where applicants claim directions not compatible with right to life – where applicants claim that full, free and informed consent to medical treatment cannot be given if an individual must choose between vaccination and employment – where applicants claim directions not compatible with right to protection from torture and cruel, inhuman or degrading treatment – where directions included no exception for conscientious beliefs – where applicants claim the directions not compatible with right to freedom of thought, conscience, religion and belief – where applicants claim directions not compatible with right to take part in public life - where applicants claim directions not compatible with right to privacy and reputation – where applicants claim directions not compatible with right to liberty and security of person – whether directions compatible with relevant human rights
Held (allowing/refusing the appeal): (i) Link to the Supreme Court of Queensland’s case summary is here. | | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Legal Bulletin 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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