NCAT Legal Bulletin Issue 1 of 2025 | 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 Victoria published in December 2024 and January and February 2025. | Commonwealth of Australia v Mr Stradford (A Pseudonym) & Ors; State of Queensland v Mr Stradford (A Pseudonym) & Ors; His Honour Judge Salvatore Paul Vasta v Mr Stradford (A Pseudonym) & Ors [2025] HCA 3: The High Court allowed an appeal and held that the Federal Circuit Court’s power to punish for contempt is not a defence to false imprisonment. The High Court also held that all judges are immune to civil suits arising from the exercise of their judicial functions and that persons exercising their legal duty to execute warrants or orders are protected from liability, even if the warrant or orders from the court are defective.
| | de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard (No 2) [2024] NSWCA 299: The NSW Court of Appeal allowed an appeal in part, setting aside a finding of unsatisfactory professional conduct on the basis that NCAT had erred in its reasoning that the existence of a costs order against the barrister meant that he was subject to a duty to pay it; finding that the barrister had not contravened an order. The appeal was otherwise dismissed, and orders were made to remove the barrister’s name from the roll based on the remaining finding of professional misconduct.
| Donohoe v Albulario [2024] NSWSC 9: The Supreme Court allowed an appeal from a decision from an Appeal Panel of NCAT which alleged that the appellant was not afforded procedural fairness. The Appeal Panel had found that the appeal did not raise a question of law and characterised the grounds of appeal as questions of mixed fact and law, denying leave to appeal. The Appeal Panel erred in denying the appellant his right of appeal absent a grant of leave.
| | Kavieris v Health Care Complaints Commission [2025] NSWSC 20: The NSW Supreme Court granted leave and upheld an appeal from the Occupational Division of NCAT which made findings of unsatisfactory professional conduct and professional misconduct. The Court found that NCAT had erred by conflating aspects of the expert evidence, which infected the reasoning of the decision.
| The Owners – Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66: The Supreme Court allowed an appeal which sought to set aside orders made by an Appeal Panel of NCAT concerning jurisdiction to hear decisions commenced outside the 6-year statutory warranty period pursuant to ss 18E(1) and 48K(7) of the Home Building Act 1987 (NSW). The Court found that the question of whether a party ought to have become aware of defects may be complex, however the critical enquiry is whether the party is aware of the specific defect that involves a breach of statutory warranty (not knowledge of other defects). There were typographical errors in the first instance decision which were “nonsensical”, and it was found that the Appeal Panel should have applied the principles of construction to correct the slip.
| Colman v The Owners – Strata Plan 61131 [2025] NSWSC 63: The Supreme Court dismissed an appeal of an Appeal Panel decision of NCAT where the matter had been presented in a convoluted and confusing manner at both first instance, and before the Appeal Panel. The facts and circumstances were narrowed for the Supreme Court and the appeal application ultimately identified a question of law concerning statutory interpretation. Leave to appeal was granted, however the Court found that there was no material error by the Appeal Panel.
| INP v The Secretary to the Department of Families, Fairness, and Housing [2025] VSC 31: The Victorian Supreme Court granted leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (VCAT) and remitted the matter to VCAT for hearing. At first instance, the appellant had commenced proceedings in VCAT to review a decision that had already been overturned. The Member summarily dismissed the VCAT proceedings. On appeal, the Supreme Court held that the application was not lacking in substance as it had an arguable utility in restoring the appellant’s reputation and his relationships with his children.
| VVR (a pseudonym) v Trustee for Ironfish Property Management Melbourne Unit Trust [2025] VSC 64: The Victorian Supreme Court granted leave and refused an appeal from VCAT concerning conduct alleged to have amounted to indirect discrimination in circumstances where automatic emails were sent to a transgender tenant that used the name on her residential agreement, which was her “deadname”. At first instance VCAT found that, while not ideal, the emails were reasonable and on appeal, the tenant contended that the Tribunal had erred in the proper interpretation of indirect discrimination under s 9 of the Equal Opportunity Act 2010 (VIC).
| | | Commonwealth of Australia v Mr Stradford (A Pseudonym) & Ors; State of Queensland v Mr Stradford (A Pseudonym) & Ors; His Honour Judge Salvatore Paul Vasta v Mr Stradford (A Pseudonym) & Ors [2025] HCA 3 12 February 2025 - Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
In sum: The High Court held that s 17 of the Federal Circuit Court of Australia Act 1999 (Cth) did not confer jurisdiction on the Federal Circuit Court, but merely expanded its powers to punish for contempt when exercising any jurisdiction otherwise conferred on the Court and accordingly, was not a defence for false imprisonment. The High Court also held that all judges referred to in s 71 of the Commonwealth Constitution are either immune from, or have a defence to, a civil suit arising out of the exercise, or purported exercise, of their judicial functions. The High Court also held that persons who have a legal duty to enforce or execute orders or warrants are protected from liability if acting pursuant to a defective order or warrant issued by the court.
The High Court unanimously allowed appeals from the judgment of the Federal Court of Australia, set aside the orders made by the Federal Court of Australia and dismissed the proceedings against all respondents.
Catchwords: Constitutional law (Cth) – Chapter III court – Judicial immunity – Status of orders of Federal Circuit Court of Australia – Where judge of Federal Circuit Court of Australia ("Judge Vasta") declared Mr Stradford in contempt of disclosure orders ("contempt declaration") and sentenced Mr Stradford to imprisonment ("imprisonment order") – Where Mr Stradford was imprisoned by various agents, employees or contractors of the Commonwealth and Queensland acting in reliance upon imprisonment order – Where Full Court of Family Court of Australia set aside contempt declaration and imprisonment order due to lack of power to make the declaration and order and for failure to afford procedural fairness to Mr Stradford – Where primary judge in Federal Court of Australia found Judge Vasta liable to Mr Stradford for false imprisonment and Commonwealth and Queensland vicariously liable – Where primary judge held that imprisonment order and warrant of commitment were affected by jurisdictional error, invalid and of no legal effect – Where primary judge found Judge Vasta lost protection of judicial immunity from civil suit – Where primary judge did not accept that persons acting in reliance upon the imprisonment order and warrant of commitment were protected from liability for their actions in imprisoning Mr Stradford – Whether effect of s 17 of Federal Circuit Court of Australia Act 1999 (Cth) was that contempt declaration and imprisonment order of Federal Circuit Court were valid unless and until set aside – Scope of common law immunity from civil suit arising out of acts done in exercise or purported exercise of judicial function or capacity – Whether persons acting in reliance upon imprisonment order and warrant of commitment liable to Mr Stradford despite acting pursuant to, or in accordance with, warrant of commitment which appeared regular on its face – Whether s 249 of Criminal Code (Qld) applied to warrant issued by Federal Circuit Court.
Words and phrases – "collateral challenge", "constables", "contempt", "correctional officers", "defence of justification", "gaolers", "inferior court", "judicial function", "judicial immunity", "judicial officer", "jurisdictional error", "justification", "ministerial officer", "officer of the court", "order", "police officers", "sheriff", "subject matter jurisdiction", "superior court", "superior court of record", "warrant".
Family Law Act 1975 (Cth), Pts XIIIA, XIIIB.
Federal Circuit Court of Australia Act 1999 (Cth), s 17.
Criminal Code (Qld), s 249.
Held (allowing the appeal and dismissing the proceedings):
(i) Link to the High Court’s case summary is here. | Elisha v Vision Australia Ltd [2024] HCA 50 11 December 2024 - Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
In sum: The High Court allowed an appeal from the Victorian Court of Appeal concerning the assessment of damages for psychiatric injury arising from a breach of an employment contract. The High Court held that a psychiatric injury is part of a class of physical or personal injury for which damages are recoverable for breach of contract concerning a manner of termination. The High Court also found that that the loss of the plaintiff was not too remote because the general manner in which it occurred was a serious possibility within the reasonable contemplation of the parties at the time of the employment contract.
Facts: In investigating a workplace complaint, the employer failed to follow the procedures outlined in its disciplinary policies, which were incorporated into the employment contract. The plaintiff’s employment was terminated, and he was subsequently diagnosed with major depressive disorder. He commenced proceedings for breach of contract, claiming damages for his psychiatric injury. The primary judge described the disciplinary process as a “sham” and awarded damages for breach of contract, concluding that the risk of psychiatric injury was not too remote. The Victorian Court of Appeal disagreed with the primary judge, finding that the psychiatric injury was unavailable for breach of contract other than where it was a consequence of a physical injury arising from the breach, or where the object of the contract was for enjoyment or relaxation. The Court of Appeal also found that the injury was too remote from the employer’s breach. The plaintiff appealed the decision to the High Court, asserting that the Court of Appeal erred in concluding that damages for the psychiatric injury were not recoverable in a claim for breach of contract.
Catchwords: Damages – Assessment – Breach of contract – Scope of contractual duty – Remoteness – Where appellant employed by respondent – Where incident involving appellant occurred during travel for appellant's work duties – Where appellant provided with "stand down letter" outlining allegations arising from incident – Where previous reports of appellant's aggressive behaviour – Where disciplinary meeting held for appellant to respond to allegations in stand down letter – Where employment terminated – Where decision to terminate employment based upon allegations of previous aggressive behaviour not put to appellant contrary to respondent's disciplinary procedure – Where appellant diagnosed with major depressive disorder – Whether liability for psychiatric injury caused by employer's breach beyond scope of employer's duty concerned with manner of dismissal – Whether rule in Addis v Gramophone Company Ltd [1909] AC 488 precludes recovery of damages for breach of contract in respect of psychiatric injury caused by manner of dismissal – Whether damage too remote.
Contract – Incorporation of terms – Employment contracts – Policies and procedures – Where employer's disciplinary procedure in enterprise agreement and policy document – Where contract of employment required employee to agree to comply with employer's policies and procedures – Whether disciplinary procedure incorporated as term of employment contract.
Negligence – Duty of care – Whether employers owe duty to employees to provide safe system of investigation and decision-making with respect to discipline and termination of employment.
Words and phrases – "common intention of the parties", "duty of care", "general manner in which the damage occurred", "general type of damage", "incorporation", "manner of dismissal", "mental distress", "on the cards", "psychiatric injury", "reasonable contemplation of the parties", "remoteness of damage", "safe system of work", "scope of contractual duty", "serious possibility", "willing to accept".
Held (allowing the appeal; setting aside the decision of the Court of Appeal): (i) Link to the High Court’s case summary is here. | Court of Appeal of New South Wales | de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard (No 2) [2024] NSWCA 299 13 December 2024 - Gleeson JA, Leeming JA and Griffiths AJA
In sum: The Court of Appeal allowed an appeal in part concerning NCAT’s finding of unsatisfactory professional conduct against Mr de Robillard (the appellant) and otherwise dismissed the appeal. The New South Wales Bar Association (the Bar Council) adopted the reasoning of NCAT at first instance, mainly that the existence of a cost judgment against the appellant meant that he was subject to a duty to pay it. However, contrary to this view, the Court of Appeal instead found that the appellant was liable to the various remedies to which a judgment creditor is entitled to exercise against the appellant and his property. NCAT’s finding of unsatisfactory professional conduct was on the basis that the appellant had contravened a court order, and consequently, that finding was set aside. The appellant did not successfully challenge NCAT’s additional finding of professional misconduct and the Supreme Court (Leeming JA dissenting) ordered that the appellant’s name be removed from the roll of legal practitioners of the Supreme Court of New South Wales.
Facts: The conduct that was the subject of these proceedings concerned the appellant adding Mr Wells, the representative for the opposing party, as a party to a proceeding in 2016 and making serious allegations that amounted to misconduct against him in circumstances where it was not reasonably justified on the material available. The appellant was unsuccessful in those proceedings, and he was ordered to pay Mr Wells’ costs, which he then refused to pay without any explanation to Mr Wells. The Bar Council’s application before the Tribunal at first instance was based on r 13(1)(q)(i) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) and was confined to the appellant’s failure to pay a costs order, which the Bar Council contended was a deemed judgment that came into existence upon the lodgment of the costs certificate in the Supreme Court. The appellant was subsequently declared bankrupt.
In the Stage 1 proceedings at first instance, NCAT found the appellant guilty of professional misconduct and unsatisfactory professional conduct. At Stage 2, NCAT recommended that under s 302(1)(f) of the Legal Profession Uniform Law (NSW), the appellant’s name be struck off the roll of legal practitioners of the Supreme Court. The Bar Council applied by summons to the Supreme Court for a declaration that the appellant is not a fit and proper person to remain on the roll, and for a removal order.
Held (allowing the appeal in part and dismissing the remainder of the appeal):
(i) The Court of Appeal allowed the appeal with respect to the finding of unsatisfactory professional conduct on the basis that the appellant was not in contravention of orders but was liable to the various remedies to which a judgment creditor is entitled to exercise against him. The appeal was otherwise dismissed.
(ii) The Summons for a removal order was successful and an order was made (Leeming JA dissenting) that the appellant’s name be removed from the roll of legal practitioners of the Supreme Court of New South Wales.
(iii) The Appellant was ordered to pay the Bar Council’s costs for the unsuccessful parts of the appeal. | Supreme Court of New South Wales | Donohoe v Albulario [2024] NSWSC 9 4 February 2025 - Basten AJ
In sum: The Supreme Court allowed an appeal from a decision from an Appeal Panel of NCAT concerning whether the plaintiff was afforded procedural fairness and set aside the orders of the Appeal Panel. It was found that the Appeal Panel erred in deciding that leave to appeal was required and that there was no appeal as of right. There were procedural fairness concerns which raised a question of law. The Court considered that there were 3 considerations with regards to identifying “questions of law” in appeals. Firstly, identifying an error rather than a question law is not fatal, so long as a specific error of law is identified. Secondly, the question must have a connection between the legal issue raised and the outcome of the case. Thirdly, “facts” will always be relevant, and it may be necessary for an appeal court to make finding of fact relating to the composition or conduct of the Tribunal.
Facts: At first instance, NCAT did not inform the plaintiff that, after an expert report was admitted into evidence, he had a right to request an adjournment and to cross-examine the expert witness. Under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), an appeal is available “as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds”. The plaintiff’s notice of appeal indicated that leave was sought, however the grounds identified were described as “errors of law”. The Appeal Panel concluded that each of the grounds of appeal were “properly characterised as a question of mixed fact and law”, and therefore not a question of law. The Appeal Panel refused leave to appeal.
On appeal, the Supreme Court found that the appeal to the Appeal Panel raised procedural fairness concerns, raising a question of law. The Court held that the Appeal Panel had erred in finding that leave was required and that there was no appeal as of right. The plaintiff had sought an additional order for remittance to NCAT for rehearing, which was opposed by the defendant. The Supreme Court held that no such order was necessary as the Appeal Panel orders were set aside, meaning the matter is unresolved and is required to go back to the Appeal Panel to make findings as to procedural fairness at first instance.
Catchwords: APPEAL – question of law - Civil and Administrative Tribunal – internal appeal – claim of procedural unfairness – failure of Appeal Panel to identify claim as raising a question of law – application treated as requiring leave – refusal of leave did not mean there was no appeal – plaintiff party to an internal appeal – failure of Appeal Panel to identify appeal before it as of right constituted error on a question of law
Held (allowing the appeal and setting aside the orders of the Appeal Panel):
(i) Link to the Supreme Court’s case summary is here. | Kavieris v Health Care Complaints Commission [2025] NSWSC 20 6 February 2025 - Griffiths AJA
In sum: A physiotherapist appealed a decision of the Occupational Division of NCAT to the Supreme Court. At first instance, NCAT found the physiotherapist guilty of unsatisfactory professional conduct and professional misconduct as defined in ss 139B and 139E respectively of the Health Practitioner Regulation National Law (NSW) (National Law). On appeal, the Supreme Court found that NCAT had erred by conflating aspects of the expert evidence, which had infected its reasoning. The appeal was upheld in relation to that aspect, and leave was granted for the parties to have the relevant matters relisted for hearing in NCAT.
Facts: A physiotherapist had been practising a technique from the Barral Institute in France (the Barral technique) which involves palpation of different areas of the body and can include manipulation of the uterus and female reproductive system. A patient made a complaint that the physiotherapist had inappropriately touched her pubic bone and labia majora without a clinical indication. The first aspect of the expert evidence concerned draping, and the expert noted that the exposure of pubic hair would have been inappropriate. The second aspect of the expert evidence criticised the use of the Barral technique below the pubic bone. Relevantly, the patient’s evidence was that that her pubic hair would have been exposed, not that the technique was used below the pubic bone. At first instance, NCAT found that the physiotherapist had lowered the patient’s tights to below her pubic bone, the Barral technique was used “below an acceptable level”, and this necessarily meant that the physiotherapist had engaged in unsatisfactory professional misconduct.
On appeal, the physiotherapist argued that NCAT erroneously conflated the 2 aspects of the expert evidence by assuming that, because the complainant’s pubic hair was said to have been exposed, this necessarily meant that the Barral technique was being used in that area. The Supreme Court found that NCAT’s conclusion was in error as there was no evidence presented to indicate the relative positions of the hair and bone, which was an assumption that had infected its reasoning and findings.
Another successful ground of appeal challenged NCAT’s conclusion that the conduct of the physiotherapist was “conduct of a sexual nature”. The question was whether NCAT should have considered the intention or context of the conduct in determining the allegation proven. The first instance decision adopted the formulaic approach found in Health Care Complaints Commission v Robinson (No 2) [2022] NSWCATOD 151 and NCAT noted that it was compelled to conclude that the conduct was of a sexual nature in circumstances where the physiotherapist had denied the conduct. The Supreme Court found that NCAT’s approach was legally erroneous in evaluating the seriousness of the conduct without regard to the physiotherapist’s state of mind and the expert evidence on the possibility of inadvertent touch or perceived sensation. The formulaic approach taken was not supported by the meaning of “professional misconduct” in s 139E of the National Law.
Held (granting leave to appeal; allowing 2 grounds of appeal):
(i) The physiotherapist has leave to appeal in relation to that part of grounds which relate to NCAT's conflation of the evidence and how that conflation was applied by NCAT in assessing the expert evidence on perceived sensation.
(ii) The parties have leave to have the matter relisted for hearing as to the terms of consequential orders, including the scope of the remitter to NCAT, the extent to which any particular order or finding should be set aside and costs. | Donohoe v Albulario (No 2) [2025] NSWSC 34 10 February 2024 - Basten AJ
In sum: On 4 February 2025, the Supreme Court allowed an appeal as outlined above from an Appeal Panel of NCAT and the orders were set aside. The defendants sought a certificate pursuant to s 6(1) of the Suitors’ Fund Act 1951 (NSW) (SFA) in respect of the costs of the appeal. The criteria for a grant of certificate provides that: (a) the proceeding was an appeal; (b) the appeal was brought from the decision of a “court” to the Supreme Court; and (c) the applicant for the certificate was unsuccessful in the appeal. There was little doubt that the matter was an appeal and that the applicants were the unsuccessful within the meaning of the first and third criteria.
With regard to the definition of “court” in the second criterion, it was found that tribunals have been accepted as a “court” for the purposes of the SFA per Kirby P in Reid v Sydney City Council (1994) 35 NSWLR 719 at 724E-F (Mahoney and Meagher JJA agreeing) (Reid). In concluding that the Appeal Panel should be treated as a “court” for the purpose of the SFA, Basten AJ noted that his conclusion was supported by the inference drawn from “the lapse of 30 years since the issue was identified in Reid without the Legislature seeking to amend the Act… despite the government having a clear financial interest in doing so if it thought the Courts’ approach to be wrong”.
Held: (granting the certificate):
(i) The Supreme Court found that the criteria for the grant of a certificate were satisfied. The First and Second defendants were granted a certificate under s 6(1) of the SFA. | The Owners – Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66 25 February 2025 - Leeming JA
In sum: The Supreme Court allowed an appeal from a decision of an Appeal Panel of NCAT concerning jurisdiction to hear decisions commenced outside the 6-year statutory warranty period pursuant to ss 18E(1) and 48K(7) of the Home Building Act 1987 (NSW) (HBA). The question of whether a party ought to have become aware of defects involving the statutory warranty may be complex, however the critical enquiry is whether the party is aware of the specific defect which arises or involves a breach of statutory warranty (not knowledge of other defects). The decision also addressed the issues of typographical errors in the first instance decision which, when read literally, were “nonsensical” and the Court found that the Appeal Panel should have applied the principles of construction to correct the slip. The decision of the Appeal Panel was set aside.
Facts: An Owners Corporation brought proceedings in NCAT in November 2020 against the developer and builder (the respondents) concerning major defects in an apartment complex. An issue in the proceedings was that the 6-year statutory warranty for major defects pursuant to s 18E(1)(b) of the HBA had expired in July 2020, however the Owners Corporation argued that the major defects did not become apparent until the final 6 months of the warranty period. The Owners Corporation sought the 6-month extension of the time limit provided for in s 18E(1)(e) of the HBA to bring its application within the warranty period. A further issue was the contradictory statements in critical paragraphs of the first instance decision concerning when the Owners Corporation first became aware of the statutory breaches. The Appeal Panel had determined that the reasons were to be read literally.
Held (allowing the appeal and setting aside the orders of the Appeal Panel):
(i) The Supreme Court held that to determine an entitlement to rely on s 18E(1)(e), one must firstly consider the entirety of the knowledge obtained in the first 5 ½ year period, and then determine whether, nonetheless, a plaintiff was not aware, and ought not reasonably have been aware, of the breaches of statutory warranty within the window for which s 18E(1)(e) makes provision.
(ii) The Supreme Court concluded that there was a slip in the first instance decision and the Senior Member was to be understood as referring to a defect or deficiency, rather than a statutory warranty, as made clear in subsequent paragraphs. The Appeal Panel’s decision to read the paragraph literally featured prominently in its reasoning not to grant leave to the Owners Corporation to challenge questions of fact.
(iii) The effect of the orders to set aside the Appeal Panel’s decision is that the internal appeal brought by the respondents remain undetermined by NCAT. | Colman v The Owners – Strata Plan 61131 [2025] NSWSC 63 20 February 2025 - Kirk J
In sum: The Supreme Court dismissed an appeal from a decision of an Appeal Panel in which the Appeal Panel refused leave to appeal a first instance decision in the Consumer and Commercial Division of NCAT. Both the first instance and appeal applications were set out in a “convoluted and confusing manner”, and there was a lack of clarity in the arguments put to NCAT. The Supreme Court found that the appeal ultimately identified a question of law concerning statutory interpretation after the facts and circumstances were narrowed. Leave to appeal was granted; however, the Supreme Court held that there was no material error established in the Appeal Panel’s decision that warranted upholding the appeal. The appeal was dismissed.
Facts: The Appellant, Mr Colman, owns a lot in an apartment building which includes a terrace bordering on common property. Mr Colman had sought approval from the Owners Corporation to make a range of alterations to the terrace, some of which affected common property. Mr Colman lodged an application with NCAT seeking an order that the Owners Corporation approve the works and seeking damages under s 232 of the Strata Schemes Management Act 2015 (NSW) (SSMA) for the alleged breach of maintenance duties under s 106 of the SSMA. The application to NCAT was convoluted and Mr Colman was unable to identify with precision what works were the subject of what arguments. The application was dismissed at first instance and Mr Colman brought an internal appeal to the Appeal Panel, who refused leave to the extent required and otherwise dismissed the appeal. The Supreme Court noted that the issues raised before them were focused on a narrower set of facts and circumstances that had been raised before the Tribunal.
Held (granting leave to appeal; dismissing the appeal):
(i) The Supreme Court accepted that the appeal raised questions of law with respect the Appeal Panel decision, however no material error of the Appeal Panel was established, and the appeal was dismissed. | Supreme Court of Victoria | INP v The Secretary to the Department of Families, Fairness, and Housing [2025] VSC 31 11 February 2025 - Ginnane J
In sum: The Supreme Court of Victoria found that an application for review of a decision by the Victorian Civil and Administrative Tribunal (VCAT) was not lacking in substance or misconceived, even though the reviewable decision had been overtaken by subsequent events and overturned in an internal review, holding that the proceedings should not have been dismissed.
At first instance, the appellant applied to VCAT for a review of 5 decisions of the respondent, the Secretary to the Department of Families, Fairness, and Housing (the Department), concerning his children. An internal review by the Department had already found that there was no legal authority for the decisions, the decisions were reversed, and a written apology was issued to the appellant. Even so, the appellant commenced proceedings in VCAT to review those 5 Departmental decisions. The Member of VCAT summarily dismissed the proceedings as the reviewable decisions have been overtaken by subsequent events, including that 1 child affected by the Department’s decisions is now over 18 years old.
Held (granting leave to appeal on limited grounds; setting aside orders of VCAT and remitting the proceedings to that Tribunal):
(i) The Supreme Court granted leave to appeal and set aside VCAT’s orders on grounds that include that the relief sought by way of declarations had an arguable utility in restoring the appellant’s reputation and assist in his relationships with his children. The application was not lacking in substance or misconceived.
(ii) The Supreme Court noted that the appellant had not presented his complete case to VCAT, who could not apply the principle of the best interests of the child until after the appellant had presented his complete case. | VVR (a pseudonym) v Trustee for Ironfish Property Management Melbourne Unit Trust [2025] VSC 64 27 February 2025 - Quigley J
In sum: The appellant is a transgender woman. The respondent is a property manager for the appellant’s residential rental provider. In the first instance application to VCAT, the appellant alleged that she had been the subject of indirect discrimination by way of email correspondence from the respondent that “deadname[d]” her, causing her psychological harm and distress for which she was entitled to damages. In defence of the conduct, the respondent contended that their system automatically generates mass emails to all tenants using the names recorded on residential rental agreements, which in the appellant’s case, was her deadname. Eventually a function was discovered to address emails to the appellant’s contact name, and the situation was rectified.
At first instance VCAT found that, “after an initial hiccup, all direct emails respectfully used the [appellant]’s current name” and that “sending automated emails to the [appellant] in the name on her rental agreement was reasonable. It was not an ideal response, and the respondent has now improved its practice, but it was reasonable in all the circumstances.” The appellant appealed the decision on the basis that the Tribunal had erred in the proper interpretation and application of s 9 of the Equal Opportunity Act 2010 (Vic) Act and that there was no evidence to support the Tribunal’s factual findings.
Held (granting leave to appeal and refusing the appeal):
(i) The Supreme Court granted the appellant leave to appeal as it was satisfied that the appeal identified questions of law.
(ii) The Senior Member’s framing of the question, being that she was “not satisfied a reasonable adjustment… was possible”, was a “slight derogation from an exact wording of s 9(3)(e)”, and the Supreme Court was not prepared to find error where the Tribunal’s decision discloses that it embarked on the correct course of enquiry.
(iii) The Supreme Court held that to make a finding that a decision was against the weight of the evidence, requires the Court to find that the Tribunal had no evidence, not that there was some evidence on which the VCAT tended to a different conclusion. The Court found that there were numerous pieces of evidence to support VCAT’s findings and the appeal ground was not made out. | | 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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