NCAT Legal Bulletin Issue 2 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 on New South Wales, Court of Appeal of Queensland and the Supreme Court of New South Wales published March and April 2024. | State of New South Wales v Wojciechowska & Ors [2024] HCASL 63: The High Court granted special leave to appeal from a decision of the NSW Court of Appeal, which originated from a decision in NCAT. The Court of Appeal had held that NCAT does not exercise judicial power when determining claims under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act), save for s 55(2)(a). If damages are sought under s 55(2)(a), NCAT will be exercising judicial power, and the restriction set out in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 will apply where the proceedings are of a kind falling within ss 75-76 of the Constitution.
| LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12: The High Court allowed an appeal from a decision made in the Administrative Appeals Tribunal (AAT) holding that the AAT’s decision was affected by jurisdictional error and void. The AAT made a material error in that the decision could realistically have been different had there been no error. Importantly, the High Court put aside differences of expression and emphasis previously adopted by individual Justices in relation to the concepts of jurisdictional error and materiality, in favour of the guidance set out in the reasons for judgment.
| Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11: The High Court allowed an appeal from the Full Court of the Federal Court concerning the decision to cancel the respondent’s visa where the Minister was satisfied the respondent did not pass the requisite character test. The Full Court of the Federal Court had held that when a Minister exercises the power under s 501CA(4) of the Migration Act 1958 (Cth) to revoke or uphold a cancellation decision, the Minister is obliged to "personally and directly consider the representations made in support of revocation". The High Court disagreed, holding that it is not a condition of the valid exercise of the power conferred by s 501CA(4) to personally read and examine the material received in every case. The Minister may rely instead upon departmental briefs and submissions which accurately summarise that material.
| Trinh v Medical Council of New South Wales [2024] NSWCA 58: The Court of Appeal dismissed an application made by a medical practitioner to set aside the suspension of her registration after multiple complaints had been made pertaining to her conduct. Concurrently, the Court also dismissed an appeal from a decision of the Occupational Division of NCAT concerning the same issues. In both cases, the practitioner argued that the panel which imposed the suspension had not been validly constituted and that, having decided that that suspension was necessary, the panel was obliged to refer the complaints about her conduct immediately to the Tribunal, which it failed to do, instead referring the complaints to the Health Care Complaints Commission for investigation. The Court of Appeal found that the Council was not obliged to refer the complaints to NCAT for a disciplinary hearing, and also that the Council does have the power to delegate its functions to a person or group, being the panel in this case.
| Orr v Director of Proceedings on behalf of the Health Ombudsman [2024] QCA 67: The Queensland Court of Appeal upheld a decision of the Queensland Civil and Administrative Tribunal which found that it did not have jurisdiction to rule on the validity of a referral from the Health Ombudsman, as this amounted to a collateral attack on its jurisdiction. The jurisdiction of a tribunal to engage in collateral review depends upon the close analysis of the legislation in question, being both the Health Ombudsman Act 2013 (Qld) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) in this case.
| Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority [2024] NSWSC 240: The Supreme Court dismissed an appeal from a decision made by the Administrative and Equal Opportunity Division of NCAT finding that, under the Liquor Act 2007 (NSW), NCAT could not make orders in favour of Taphouse, the appellant, it no longer being the licensee of the premises. Nor could it make orders in favour of the current licensee on Taphouse’s application. Taphouse’s right to challenge the refusal ceased once the licence was transferred to a successor. This had the effect of rendering the appeal moot. Additionally, the Supreme Court refused to join the owner of the premises and successor licensees to the appeal finding they were not proper or necessary parties.
| Lin v Commissioner of Victims Rights [2024] NSWSC 423: The Supreme Court dismissed an application to set aside restitution orders made in NCAT under s 59(2)(b) of the Victims Rights and Support Act 2013 (NSW). The plaintiff submitted the proceedings in which she was convicted and sentenced for assault were civil proceedings, rather than criminal proceedings, such that a restitution order could not be made under s 59(2)(b). The Supreme Could held the proceedings were correctly characterised as criminal by NCAT and dismissed the proceedings.
| Choi v NSW Ombudsman [2024] NSWSC 352: The Supreme Court dismissed an appeal where the appellant had sought judicial review of two decisions made by NCAT which refused to appoint a guardian ad litem and refused leave to proceed with a disability discrimination complaint and a victimisation complaint made to the Anti-Discrimination Board. The Supreme Court found the grounds of appeal were either unsupported by evidence, lacking in substance or trivial or nonsensical.
| Sayar v Health Care Complaints Commission [2024] NSWSC 418: The Supreme Court dismissed an appeal which originated in the Occupational Division of NCAT to cancel the registration of a pharmacist pursuant to s 149C(1)(a)(b) and (c) of the Health Practitioner Regulation National Law (NSW) 2009 (NSW) (the National Law) and to make a prohibition order pursuant to s 149C(7) of the National Law for a period of 3 years and 6 months. The Supreme Court was not satisfied on any of the grounds of appeal raised by the appellant, holding that NCAT afforded the appellant procedural fairness, applied the appropriate standard of proof under the National Law, provided adequate reasons for its findings, and did not fail to exercise its jurisdiction by not disposing of a substantial and clearly articulated argument.
| | | State of New South Wales v Wojciechowska & Ors [2024] HCASL 63 7 March 2024 - Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
In sum: The High Court has granted special leave to appeal from a decision of the NSW Court of Appeal, which originated from a decision in NCAT. In the Court of Appeal, Ms Wojciechowska (the respondent in the High Court proceedings) sought to challenge NCAT’s jurisdiction in various NCAT proceedings by invoking the principle set out in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 on the basis that she was a resident of Tasmania and her claims were against emanations of the State of New South Wales for the purposes of s 75(iv) of the Constitution. The Court of Appeal held that NCAT has no jurisdiction to determine claims under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) where the matter is of a kind falling within ss 75-76 of the Constitution and if and where an order for damages is sought under s 55(2)(a). Otherwise, NCAT is not exercising judicial power under the PPIP Act. Further, NCAT does not exercise judicial power in determining claims under the Government Information (Public Access) Act 2009 (NSW) and so it will have jurisdiction even where the matter is of a kind falling within ss 75-76 of the Constitution.
Held (granting special leave to appeal): (i) Link to the NCAT Legal Bulletin which summarised the decision before the NSW Court of Appeal is here. | LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 10 April 2024 - Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
In sum: The High Court unanimously allowed an appeal from the Full Court of the Federal Court of Australia concerning jurisdictional error and the materiality threshold. Importantly, the High Court noted the uncertainty surrounding these concepts in some trial and appellate decisions, and here put aside differences of expression and emphasis previously adopted by individual Justices in favour of a more uniform guidance as to the key concepts relating to jurisdictional error and materiality, with which the entire Court agrees (at [9]-[16]).
This guidance arose in the context of a Vietnamese national (the appellant) who was convicted of various offences and sentenced to several periods of imprisonment between 2011 and 2017. By virtue of these convictions, his visa was subject to mandatory cancellation under s 501(3A) of the Migration Act 1958 (Cth). A delegate of the Minister then refused an application by the appellant for revocation of that cancellation, and the appellant applied to the AAT for review of this decision. The AAT, in considering under s 501CA(4) whether there was “another reason” why the cancellation should be revoked, was required to comply with a direction given by the Minister (Direction 90) which required the Tribunal to weigh relevant mandatory considerations. The AAT was ultimately not satisfied there was another reason why the cancellation should be revoked and affirmed the delegate’s decision. The primary judge in the Federal Court agreed. However, on appeal, the Full Court of the Federal Court found the AAT’s decision did involve error in not complying with Direction 90, but dismissed the appeal on the basis the error was not material. The High Court disagreed on the latter question of materiality and held the AAT’s error was material in that the decision could realistically have been different had there been no error. The AAT’s decision was attended by jurisdictional error and rendered void.
Catchwords: Administrative law (Cth) – Judicial review – Jurisdictional error – Materiality – Threshold of materiality – Principles to be applied.
Immigration – Visas – Cancellation of visa – Where appellant committed and found guilty of offences – Where appellant sentenced to terms of imprisonment – Where appellant's visa mandatorily cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where delegate of Minister refused application to revoke cancellation – Where appellant applied to Administrative Appeals Tribunal to review delegate's decision – Where Tribunal required to comply with Direction given by Minister under s 499 of Migration Act in determining whether "another reason" why visa cancellation should be revoked – Where Direction required Tribunal engage in evaluative assessment of relevant mandatory considerations – Where Tribunal's decision involved error – Whether Tribunal's decision affected by jurisdictional error – Whether error was material.
Words and phrases – "another reason", "cancellation decision", "convicted", "criminal offending", "direction", "fanciful or improbable", "judicial review", "jurisdictional error", "materiality", "merits review", "protection of the Australian community", "realistic possibility", "threshold of materiality".
Migration Act 1958 (Cth) – ss 499, 501(3A), 501CA(4).
Held (allowing the appeal; issuing a writ of certiorari to quash the decision at first instance): (i) Link to the High Court’s case summary is here. | Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11 10 April 2024 - Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
In sum: The High Court unanimously allowed an appeal from the Full Court of the Federal Court which concerned whether the Minister, when personally exercising the power conferred by s 501CA(4) of the Migration Act 1958 (Cth) to revoke a decision made under s 501(3A) to cancel a visa granted to a person, is required to personally read the representations made by that person to the Minister, or whether the Minister may instead examine documents summarising those representations. The Minister had been provided with a summary of the respondent’s representations, a draft statement of reasons, and copies of all actual representations made by the respondent. The Minister decided not to revoke the cancellation decision and adopted the draft reasons provided to him as his reasons for decision. However, the Full Court of the Federal Court agreed with the primary judge, holding that the choice to exercise the power under s 501CA(4) personally obliged the Minister to “personally and directly consider the representations made in support of revocation”. The High Court disagreed, holding that a Minister may rely instead upon departmental briefs and submissions which accurately summarise the relevant material. If the representations made are appropriate to be summarised and the process of distillation is accurate and provides a full account of the essential content, it will be lawful for the Minister to read a summary and nothing more. The High Court did not accept that the summary in the departmental submission and draft reasons in this case was “deficient” and the Minister was therefore entitled to rely upon that departmental submission in making his decision.
Catchwords: Immigration – Visas – Cancellation of visa – Revocation of cancellation decision – Where respondent's visa mandatorily cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where respondent made representations seeking revocation of cancellation decision under s 501CA(4) – Where Minister provided by Department of Home Affairs with submission summarising respondent's representations, draft statement of reasons, copies of respondent's representations and other relevant material – Where Minister decided to personally exercise power under s 501CA(4) to revoke cancellation decision – Where Minister decided not to revoke cancellation decision – Where Minister read only departmental submission and draft statement of reasons – Where s 501CA(4) obliges Minister to "read, identify, understand and evaluate" representations – Whether Minister required to personally read some or all of respondent's representations to form state of satisfaction whether "another reason" existed to revoke cancellation of respondent's visa – Whether Minister entitled to rely upon summary of representations contained in departmental submission – Whether summary provided adequate and accurate.
Words and phrases – "another reason", "cancellation decision", "directly consider", "duty of consideration", "jurisdictional error", "personally examine", "personally exercise", "read, identify, understand and evaluate", "representation", "revocation", "submission", "summary", "visa".
Migration Act 1958 (Cth) – ss 501(3A), 501(6), 501CA(4).
Held (allowing the appeal; setting aside the orders of the Federal Court; dismissing the proceedings): (i) Link to the High Court’s case summary is here. | Court of Appeal of New South Wales | Trinh v Medical Council of New South Wales [2024] NSWCA 58 15 March 2024 - Mitchelmore JA; Basten AJA; Griffiths AJA
In sum: The Medical Council received two complaints regarding the applicant, a registered medical practitioner, and a panel appointed by the Council resolved to suspend the applicant’s registration and refer the complaints to the Health Care Complaints Commission for investigation. The applicant proceeded to lodge an appeal in NCAT under s 159 of the Health Practitioner Regulation National Law (NSW) 2009 (NSW) (the National Law), and later applied to the Council for a review of the suspension decision, pursuant to s 150A of the National Law. The review confirmed the original decision made by the Council. In relation to the NCAT proceedings, the applicant then filed an interlocutory application in her own NCAT appeal seeking to have NCAT dismiss the appeal on the basis that the first panel was invalidly appointed and its decision therefore void, such that there existed no valid decision to appeal from meaning NCAT no longer had jurisdiction in the matter. NCAT dismissed her application finding the Council had not acted invalidly in appointing the panel as she contended, nor in failing to refer the complaints against her to NCAT under s 145D(1) of the National Law. The applicant appealed to NCAT’s Appeal Panel, but later discontinued the appeal, and the proceedings were formally dismissed.
The applicant then filed both a summons seeking judicial review of the panel’s decision, and sought to appeal from the Tribunal’s decision. The Court of Appeal dismissed both the judicial review proceedings and the appeal, holding that the Council was not obliged to refer the complaints to NCAT for a disciplinary hearing, but was obliged to refer the complaints to the Commission for investigation, which it had done. The Council was then actually precluded from taking further action under the National Law, except under ss 150-150J (Health Care Complaints Act 1993 (NSW), s 14). Additionally, the Court held that the Council does have the power to delegate its functions to a person or group, being the panel in this case, under s 41J(3) of the National Law, and it did so correctly.
Catchwords: ADMINISTRATIVE LAW – functions conferred on professional council – power to delegate functions – no power to delegate power to delegate – delegation of function to persons appointed by Executive officer – whether delegation valid
OCCUPATIONS – medical practitioners –misconduct and discipline – power to suspend registration – delegation of power – delegation to panel appointed by Executive Officer – whether invalid subdelegation
OCCUPATIONS – medical practitioners – misconduct and discipline – obligation of Medical Council to refer complaint to Tribunal if grounds for suspension or deregistration – obligation of Medical Council to refer complaint to Health Care Complaints Commission – Commission to investigate – consideration of statutory scheme
STATUTORY INTERPRETATION – obligation of professional council under National Law to refer complaint to disciplinary tribunal – provisions of National Law to be read harmoniously with State law establishing Complaints Commission – inconsistency – State law to prevail – requirement for investigation prior to referral to disciplinary tribunal
Held (dismissing the application to set aside the suspension): (i) Link to the Court of Appeal's case summary is here. | Court of Appeal of Queensland | Orr v Director of Proceedings on behalf of the Health Ombudsman [2024] QCA 67 30 April 2024 - Mullins P; Bond JA; Fraser AJA
In sum: The Queensland Court of Appeal upheld a decision of the Queensland Civil and Administrative Tribunal (QCAT) which concerned a referral from the Health Ombudsman (the respondent) of a medical practitioner (the appellant) for disciplinary proceedings. In making that referral to QCAT, the Health Ombudsmen had relied on material which the appellant contended was obtained pursuant to defective search warrants and statutory notices, such that the appellant contended the impugned evidence itself was obtained without lawful authority. QCAT found that it did not have jurisdiction to rule on the validity of the Health Ombudsmen’s referral, as this amounted to a collateral attack on its jurisdiction, to which the Queensland Court of Appeal agreed, dismissing the appellant’s claim. In making this decision, the Queensland Court of Appeal distinguished the present matter from the decision of the NSW Court of Appeal in Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 [2020] NSWCA 327 on the basis that the NSW Court of Appeal had considered the jurisdiction issue in that case as not ‘truly collateral’, but rather the ‘central’ issue to be decided. Determining whether such an issue is collateral or central was deemed an exercise in statutory construction of the respective enabling statutes.
Catchwords: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS – where the appellant was a medical practitioner – where the respondent referred the appellant to the Queensland Civil and Administrative Tribunal (“the Tribunal”) for disciplinary proceedings for misconduct – where, in deciding to make the referral, the respondent relied upon material (“the impugned evidence”) which had been obtained in the course of a related investigation by the Health Ombudsman – where the appellant contended that the impugned evidence was obtained pursuant to search warrants and statutory notices which were defective, such that the impugned evidence itself was obtained without lawful authority – where the Tribunal found that it did not have jurisdiction to rule on the validity of the respondent’s referral, as this amounted to a collateral attack on its jurisdiction – where the appellant contends that the Tribunal erred in finding that it did not have power to rule on the validity of the referral – whether the Tribunal erred in finding that the appellant’s attack on the validity of the respondent’s referral was a collateral attack on its jurisdiction – whether the proper statutory interpretation of the relevant legislation requires that the Tribunal’s jurisdiction be subject to the making of a “valid” referral by the respondent
Held (dismissing the appeal): (i) Link to the Court of Appeal of Queensland's case summary is here. | New South Wales Supreme Court | Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority [2024] NSWSC 240 13 March 2024 - Schmidt AJ
In sum: Applications for extended trading authorisation are differently regulated to licensing under the Liquor Act 2002 (NSW). Under s 49 of the Liquor Act, the approval for extended trading can only be granted to a licensee, rather than it being possible to impose conditions which permit extended trading on a hotel’s licence. Any application for extended trading made by a previous licensee or by a current licensor cannot be granted, the only effective applicant being the current licensee. NCAT cannot make effective orders regarding a failed extended trading application where it is being pursued by a former licensee. This has the effect of rendering an appeal moot which originates from an extending trading application of a former licensee.
Facts: The appellant (Taphouse) was the licensee of a hotel when it unsuccessfully applied for an extended trading authorisation under the Liquor Act 2007 (NSW) which would have authorised Taphouse to trade for an additional 24 hours a week. Since the refusal of the application, Taphouse ceased being the licensee and several other licensees had succeeded it. Despite this, Taphouse has continued to pursue its application. The Administrative and Equal Opportunity Division of NCAT refused Taphouse’s review application at first instance. The Appeal Panel then dismissed the internal appeal concluding that it was moot on the basis Taphouse was no longer licensee. Taphouse appealed that decision to the Supreme Court on the basis it has the right to have its internal appeal determined, given the proper construction of the relevant legislative schemes, and submits extended trading authorisation ‘runs’ with the premises upon transfer to a new licensee. Taphouse also sought leave to amend its pleadings to appeal the Appeal Panel’s decision to refuse its belated application to join the current owner and then licensee (the hotel now having yet another licensee) as parties to the internal appeal.
Held (granting the extension of time; refusing leave to amend the pleadings; granting leave to appeal; dismissing the appeal): (i) Applications for authorisation of extended trading are regulated differently to licensing matters (at [100]). There is no provision empowering the authority to impose conditions on a hotel’s licence which permit extended trading at the hotel (at [78]). Instead, on the proper construction of s 49(2) of the Liquor Act, approval of extended trading hours can only be granted to an applicant licensee, rather than the authorisation being attached to a relevant premises (at [88]). After a hotel’s licensee has been granted an authority for extended trading, when an application is made to transfer the licence to a new licensee, the authority will have to consider the fitness of the proposed licensee, in the context of the extended trading authorisation. If not satisfied of fitness, the authority can refuse the transfer, or may revoke or vary the authorisation (at [120], [150]). No such transfer of authorisation occurred here because Taphouse’s application for authorisation was refused, and since it ceased to be the licensee, no other licensee has sought authority to trade during extended hours, nor have any sought to be heard on Taphouse’s application, the review or its appeals.
(ii) The internal appeal was moot. In Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 it was observed at [79] that the “essence of judicial power is the determination of disputes between parties”. By the time of the internal appeal, Taphouse no longer had any real dispute with the authority, being a former licensee and no longer had any interest in the hotel. It follows that the appeal was rendered moot because NCAT could no longer make effective orders in favour of Taphouse (at [92]-[94]). Taphouse’s right to challenge the refusal ceased once the licence was transferred to a successor (at [132]).
(iii) Additionally, the joinder of the current licensee or the current owner cannot be ordered on Taphouse’s application. The current owner cannot be joined as the Liquor Act does not contemplate circumstances where the owner of a licensed premises, in place of the licensee, can apply for extended trading hours, let alone seek review of the refusal of a licensee’s application. It also does not contemplate pursuing orders in favour of a subsequent licensee. If a successor licensee wishes to adopt extended trading hours, it should make a fresh application (at [25]).
(iv) The joinder power in section 44(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) should be read in conjunction with s 44(2) so that parties who are considered a “proper or necessary party” are joined to proceedings (Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327) (at [27], [31]). There exists no proper basis for the exercise of that discretion here (at [29]). In Fine, the Court of Appeal explained that a party “whose interests are affected by the decision, would usually be a proper party”, but that a “proper” party is not automatically a “necessary” party (at [31]). The new owner and then licensee are “not necessary parties as nothing depended on them or their attitude to [Taphouse’s] application” (at [33]). It is also not apparent that they were proper parties. While they were distinct from Taphouse in that they possessed the requisite commercial interest, they had otherwise shown no interest in Taphouse’s application, and nothing suggested they had been given notice about the proposed joinder (at [33]-[36]).
(v) In the time since the internal appeal took place, there is now yet another new licensee. If leave were to be given, the current owner and licensee would also need to be given an opportunity to be heard, resulting in further cost and delay at odds with the overriding purpose of the “just, quick and cheap resolution of the real issues” (Civil Procedure Act 2005 (NSW) s 56; NCAT Act s 36) (at [40]).
(vi) These findings regarding the exercise of joinder in an internal appeal would also hold up if the current owner or licensee made an application to be made a party to these proceedings, so that they could be heard regarding Taphouse’s external appeal. It is a party to an internal or external appeal who may, with leave, appeal the decision to the Supreme Court (NCAT Act s 83(1); see Quader v Nguyen [2023] NSWSC 815). Again, neither the current owner nor current licensee were parties to the internal appeal or this appeal, and there was no suggestion made that they were a “relevant person” under s 13A of the Gaming and Liquor Administration Act 2007 (NSW), which would have entitled them to be heard on the review.
(vii) Joinder of third parties to proceedings before the Supreme Court is regulated by the operation of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Under rule 6.24, joinder requires a finding that the current owner and licensee “ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute”. Given they had no right to appeal the decision of the internal appeal, and their joinder was not necessary, this conclusion cannot be reached. Additionally, UCPR r 6.25 provides that a “person is not to be joined as a plaintiff in any proceedings except with his or her consent”. No such consent has been provided (at [50]). | Lin v Commissioner of Victims Rights [2024] NSWSC 423 27 March 2024 - Schmidt AJ
In sum: The definition of “criminal proceedings” in s 3 of the Civil Procedure Act extends to “any” proceeding against a person for an offence, meaning it is not confined to committal proceedings, proceedings related to bail, proceedings related to sentence and proceedings on an appeal conviction or sentence. Restitution orders may still be made under s 59(2)(b) of the Victims Rights and Support Act 2013 (NSW) where the offender was not sentenced to imprisonment.
Facts: Ms Lin (the appellant) was convicted of assault occasioning actual bodily harm in 2017. She was given a two year good behaviour bond and made the subject of a 12 month apprehended violence order. In 2023, the Commissioner of Victims Rights made a restitution order against Ms Lin under s 59(2)(b) of the Victims Rights and Support Act 2013 (NSW), her victim being awarded $5,000 in respect of the prior assault. Ms Lin unsuccessfully challenged that order in the Administrative and Equal Opportunity Division of NCAT, and then again before an Appeal Panel of NCAT. Ms Lin now seeks to have the Appeal Panel’s order set aside and the Commissioner’s order reversed in the Supreme Court.
Ms Lin suggests the proceedings which led to her conviction were in fact civil rather than criminal proceedings meaning that the Commissioner was not empowered to make a restitution order against her under s 59(2)(b) and the order made was invalid. The term “civil proceedings” is not defined in the Victims Rights Act but is defined in s 3 of the Civil Procedure Act as “any proceedings other than criminal proceedings”. The term “criminal proceedings” is then defined as “proceedings against a person for an offence (whether summary or indictable), and includes the following”, before listing committal proceedings, proceedings relating to bail or to sentence, or proceedings on an appeal against conviction or sentence. Ms Lin contends that the definition of criminal proceedings here does not extend to “any” proceeding against a person for an offence, and is instead limited to those listed. In oral submissions, Ms Lin argued that “criminal proceedings” were only those in which an offender was sentenced to imprisonment.
Held (dismissing the proceedings): (i) Section 59 of the Victims Rights Act must be interpreted in light of the object of the Act, namely, to “recognise and promote the rights of victims of crime” (s 4). Crime is not defined in the Act but takes its ordinary meaning as defined in the Oxford English Dictionary being an “act or omission constituting an offence (usually a grave one) against an individual or the state and punishable by law”. This aligns with the offence Ms Lin committed being assault occasioning bodily harm under s 59(1) of the Crimes Act 1900 (NSW). Additionally, such criminal offences must be prosecuted in accordance with the provisions of the Criminal Procedure Act 1986 (NSW) and sentences must be imposed in accordance with the Crimes (Sentencing Procedure) Act 1999 (NSW). It follows that victims of such assaults fall within the provisions made in the Victims Rights Act, being victims of a crime.
(ii) The concept of a ‘sentence’ is not confined to imprisonment, as Ms Lin contended. As defined in s 3 of the Crimes (Sentencing Procedure) Act, a sentence refers to the imposition of a penalty for an offence. Importantly, imprisonment is not the only penalty which can be imposed when an offence attracts a maximum penalty of a term of imprisonment, as the offence of assault occasioning actual bodily harm does. Despite the penalty imposed on Ms Lin not involving imprisonment, it was recognised as one involving real punishment for the crime in question (at [17], [19]).
(iii) The Appeal Panel correctly concluded the 2017 proceedings were criminal proceedings rather than civil proceedings. That was because they concerned Ms Lin’s offence of assault occasioning actual bodily harm, which had been dealt with summarily by a Magistrate and thus fell within the definition of criminal proceedings (at [30]).
(iv) Additionally, it cannot be accepted that the definition of “criminal proceedings”, by its use of the word “includes”, without use of the word “any”, is restrictive. As discussed in Malek Fahd Islamic School Ltd v Minister for Education and Early Learning (2023) 111 NSWLR 585; [2023] NSWCA 143 at [30], the word “includes” is ordinarily non-exhaustive. The definition of “criminal proceedings” in s 3 of the Civil Procedure Act is an example of such a use of the word “includes”. That definition does not restrict the ordinary and natural meaning of the defined term (at [31]-[33]). | Choi v NSW Ombudsman [2024] NSWSC 352 5 April 2024 - Cavanaugh J
In sum: The plaintiff sought judicial review of two decisions made by NCAT which refused to appoint a guardian ad litem and refused leave to proceed with a disability discrimination complaint and a victimisation complaint made to the Anti-Discrimination Board. The Supreme Court dismissed the appeal finding the grounds of appeal were either unsupported by evidence, lacking in substance or trivial or non-sensical. Importantly, the Court noted that merely asserting a mental disability exists does not inevitably lead to a conclusion of discrimination on the grounds of that mental disability. The Tribunal in this case made no error in accepting that the plaintiff had disabilities at the time of her complaint, but was not satisfied discrimination had occurred.
Facts: Ms Choi has been pursuing her grievance since the termination of her enrolment in a Bachelor of Nursing degree at UTS in 2016. She continues to maintain that the termination was discriminatory in that she was suffering a “mental disorder”. Ms Choi sent an anonymous complaint to the NSW Ombudsman (the respondent) about UTS. The Ombudsman then sent her anonymous complaint to a Professor at UTS, thereby wrongly disclosing her name and email address, and UTS responded. The Ombudsman determined UTS’ response to the complaint to be adequate and resolved not to inquire any further. The plaintiff sought internal review. The review took place and what followed was several requests by the plaintiff for further review, each which was subsequently met with a statement that no further action would be taken in response to her complaint. She then lodged a complaint with the Anti-Discrimination Board who referred her complaint to NCAT. NCAT appointed a guardian ad litem in each of the two proceedings Ms Choi was pursuing. She sought internal review in NCAT and then judicial review in the Supreme Court where the Supreme Court proceedings were referred directly to the Court of Appeal. The Court of Appeal dismissed the plaintiff’s summons seeking judicial review but allowed her appeal in part in respect of the appointment of a guardian ad litem. The matter was remitted to the Tribunal for further consideration. NCAT found that although it was satisfied Ms Choi had disabilities at the time of her complaints, simply having a disability is not sufficient to prove a complaint of both disability discrimination and victimisation.
Ms Choi then appealed to the Supreme Court seeking a total of 23 orders be made including, inter alia, that orders made by NCAT be quashed, that she be granted leave to proceed with the disability discrimination complaint and the victimisation complaint under s 96(1) of the Anti-Discrimination Act 1977 (NSW), that orders be made to investigate and to publish an apology, as well as that she be awarded costs. She alleged she had been discriminated against when recipients of her complaints had not responded to every complaint she made and alleged the Ombudsman acted in bad faith when seeking to rely on s 35A of the Ombudsman Act 1974 (NSW) being a provision regarding the immunity of the Ombudsman.
Held (dismissing the summons, ordering that the plaintiff pay the defendant’s costs and dismissing several motions): (i) The Court found it difficult to ascertain the basis of the plaintiff’s claim for judicial review, which seemed to be based on a misunderstanding of the Ombudsman’s role and a misunderstanding generally regarding claims for judicial review. The Court clarified that by virtue of these proceedings being judicial review proceedings, it would not be determining whether the plaintiff suffered discrimination and would not be engaging in a fact-finding exercise as to the conduct of UTS or the Ombudsman. The Court would not be undertaking a hearing de novo (at [52]-[53]).
(ii) The Court did not accept Ms Choi’s submission that her constant emailing is a reflection of her mental disorders and therefore, a failure to respond to this conduct is in itself discriminatory. The Court acknowledged that this has nothing to do with the action Ms Choi is now pursuing (at [55]-[57]). Similarly, the Court found no basis for Ms Choi’s submission that the Ombudsman acted in bad faith in seeking to rely on s 35A of the Ombudsman Act (at [57]).
(iii) Relying on the Tribunal’s findings, the Court restated that merely asserting a mental disability does not lead to the conclusion of discrimination on the grounds of that mental disability (at [58]). Where the plaintiff has used terminology such as alleging an “error of law” has been made, the terminology is of no use where the plaintiff has failed to support this language with evidence or provide any foundation for such allegations. The plaintiff has merely referenced this terminology before proceeding to make submissions as if this is an ordinary appeal. For example, the plaintiff asserts that there was an error of law on the face of the record in that the Tribunal rejected her disabilities. However, the Senior Member was satisfied that the plaintiff had disabilities at the time of her complaint. This is not an error of law and is incorrect (at [61]-[62]). Similar reasoning was applied to several other errors of law alleged which were found to be unsupported by evidence, lacking in substance or trivial. | Sayar v Health Care Complaints Commission [2024] NSWSC 418 19 April 2024 - Campbell J
In sum: In an appeal regarding alleged errors of law, an appellant will fail unless it could also be demonstrated that the error is material. The Supreme Court was not satisfied here that any of the errors alleged were made out, and noted that if it is wrong on this point, the errors alleged would not have been material ones. Importantly, the Tribunal’s judgment needs to be read in the context provided by the whole of its reasons, NCAT here providing comprehensive reasons for its decision in what was a complicated case. Reading the entirety of the decision illustrated NCAT’s understanding of the appropriate standard of proof and its associated onus such that no error could be established.
Facts: The Health Care Complaints Commission initiated proceedings in the Occupational Division of NCAT relating to the appellant’s contravention of various provisions of the Health Practitioner Regulation National Law (NSW) 2009 (NSW) (National Law). Seven complaints were made against Mr Sayar who conceded in relation to the first 6 such that only complaint 7 was in issue. Complaint 7 was that Mr Sayar (due to his impairment consisting of an alcohol misuse disorder) was not competent within the meaning of s 144(c) of the National Law to practice as a pharmacist. Mr Sayar submitted that the existence of the impairment, without more, did not constitute incompetence and additionally, that conditions proposed to be imposed upon his registration were sufficiently stringent to ensure his sobriety when practicing his profession. Mr Sayar also alleged that NCAT at first instance failed to afford him procedural fairness, failed to apply the appropriate standard of proof under the National Law, reversed the onus of proof, failed to provide adequate reasons and also failed to exercise its jurisdiction by not disposing of a substantial and clearly articulated argument.
In relation to the procedural fairness ground, Mr Sayar submitted he was denied procedural fairness because he had not been informed during the hearing of the Tribunal’s finding that “in our view seeking a protective order that he be permitted to practise subject to conditions demonstrates a considerable lack of insight”. He submits that if he had been informed of the Tribunal’s intentions to treat the conditions in a way adverse to him, he may have brought further evidence regarding his insight. In relation to the ground relating to an alleged reversal of the onus of proof, Mr Sayar noted the Tribunal’s statement that: “We are not persuaded that the practitioner is competent to practise. Accordingly, we find complaint 7 established”. The appellant argued this implied he was required to persuade the Tribunal he was competent, when the onus should have been on the Commission. The Supreme Court found none of the grounds raised by the appellant were established and dismissed the appeal.
Held (refusing leave to raise factual questions; dismissing the appeal; ordering that the plaintiff pay the defendant’s costs): (i) The asserted errors, including errors which may in truth be errors of fact requiring leave, were not material to the Tribunal’s determination that cancellation and prohibition orders were necessary. An appellant will fail “to make the appeal good, unless he or she can also demonstrate that the error is material” (Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 at [50]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 353). In the related field of discourse of the exercise of the Court’s supervisory jurisdiction by judicial review, materiality is essential to a finding of jurisdictional error (Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at 133 [24], 143[62]).
(ii) In relation to Mr Sayar’s assertion that he was denied procedural fairness, the Court found that the question of Mr Sayar’s insight into his alcohol misuse disorder was squarely raised at the hearing and his counsel was given the opportunity to cross-examine the medical practitioner giving evidence on this point. It is also clear that the Tribunal was not referring to Mr Sayar’s insight into the nature of his impairment, but rather his lack of insight into the nature of his professional misconduct. It was those matters which persuaded NCAT that a cancellation order with a significant period of prohibition were the minimum protective orders necessary for the protection of the public. Mr Sayar continuing to focus upon the question of his competence portrayed a lack of insight as to the seriousness of the professional misconduct found against him. The Tribunal had made clear that complaint 7 did not necessarily require cancellation of Mr Sayar’s registration (cf Health Care Complaints Commission v Bolton [2021] NSWCATOD 160). Had Mr Sayar established the error contended, the error would not have been a material error (at [84]-[89]).
(iii) In relation to the ground relating to an alleged reversal of the onus of proof, the Court acknowledged that it is bound by the dictum of Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57;79 ALJR 1816 at [130] that because a judge must state the reasons for arriving at the decision reached, “the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result”. However, the Tribunal’s reasons are also to be read by the reviewing or appellate courts fairly, and as a whole, without an eye finely attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [271]-[272]. There is nothing in its reasons that suggests the Tribunal misunderstood the test or onus, and the fact that the Commission bore the onus of proof in respect of each complaint, and that the application of the ordinary civil standard of proof may be informed by Briginshaw considerations, was so obvious so as to go without saying in the Tribunal’s decision. Again, the Court found that had Mr Sayar established the error contended, the error would not have been a material one (at [90]-[96]).
(iv) The Court was otherwise satisfied there was sufficient evidence to justify the findings made by NCAT (at [103]). The Court also found that the Tribunal fairly and fully considered each argument raised and noted that the reasons were comprehensive and thorough in what was a complex case (at [114], [124]).
(v) Additionally, contrary to the submission advanced by the Commission, the Court clarified the statutory context in which the appeal and leave requirements arise. Under Sch 5, Pt 6, cl 29(2) of the NCAT Act, most decisions for the purposes of the National Law (NSW) are not internally appealable but instead lie directly, in this case, to the Supreme Court. By cl 29(4), appeals under the Legal Profession Uniform Law (NSW) are re-hearings under s 75A of the Supreme Court Act 1970 (NSW) rather than a hearing de novo. Subject to leave, the scope of an appeal relating to a profession, other than the legal profession, is potentially broader than one under the Legal Profession Uniform Law (NSW) by virtue of cll 29(7) and (8) where the Court may decide to deal with the appeal by way of a new hearing, may permit fresh evidence, and can make various orders confirming, varying, quashing, setting aside, or substituting the decision under appeal. It is not limited to an appeal by way of rehearing which would be subject to the more restrictive limitations upon the receipt of additional, further or fresh evidence found in s 75A of the Supreme Court Act. Having said that, Mr Sayar did not apply to have his appeal dealt with by way of a new hearing, and he did not seek to lead any fresh or additional evidence. Rather, the appeal proceeded as an appeal on questions of law (at [8]-[14]). | | 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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