NCAT Legal Bulletin Issue 3 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, Court of Appeal of Queensland and the Supreme Court of New South Wales published in May and June 2024. | Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17: The High Court dismissed an appeal from Cessnock City Council in relation to the measure of damages awarded to the respondent following a breach of contract by the Council. The High Court held that when determining the sum of damages in circumstances where there is uncertainty about the position of a plaintiff following a defendant’s breach of contract, there is an assumption in favour of the innocent party that, had the contract been performed, that party would have recovered the expenditure that they reasonably incurred in relying on the contract.
| Balasingham v Health Care Complaints Commission [2024] NSWCA 100: The Court of Appeal refused to grant leave to appeal from a decision of the Occupational Division of NCAT which had found Mr Balasingham guilty of both unsatisfactory professional conduct and professional misconduct. The Court of Appeal held that, at its highest, Dr Balasingham had established an arguable case of error, though this was in respect of a relatively minor error in just one aspect of NCAT’s reasoning. This was not sufficient to warrant a grant of leave.
| McMillan v Coolah Home Base Pty Ltd [2024] NSWCA 138: The Court of Appeal dismissed an appeal with costs following a string of disputes which had arisen in the context of a caravan park established for people who are retired or semi-retired to live. The Court of Appeal found no error in relation to the primary judge’s findings, stating that the appellants were not promised ownership of the sites, and that claims relating to oppressive and unconscionable conduct, as well as harassment and coercion, could not be made out against the Directors.
| Shapkin v The University of Sydney [2024] NSWCA 156: The Court of Appeal dismissed a summons seeking leave to appeal in circumstances where the applicant had brought concurrent appeal and judicial review proceedings in the Supreme Court in relation to decisions of NCAT. The Court of Appeal found that there were insufficient prospects to warrant a grant of leave, holding that it was open to the primary judge to exercise its discretion under s 34(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to decline to grant relief. Mr Shapkin had failed to identify any issue sought to be raised by him in the judicial review proceedings which could not have been raised in the Supreme Court appeal proceedings.
| Willmott v Carless [2024] QCA 115: The Queensland Civil and Administrative Tribunal (QCAT) referred a question of law to the Queensland Court of Appeal which resolved uncertainty about the nature of a review under s 219Q(1) of the Crime and Corruption Act 2001 (Qld). Whilst the text of s 219Q(1) refers to a hearing occurring in this context as being a “review” rather than an “appeal”, which could suggest that the nature of such a review was intended to be a fresh hearing on the merits consistent with s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), this was not determinative. The Court found that the text of s 219Q supported the proposition that a “review by way of rehearing” was akin to an appeal by way of rehearing which necessitates that the party bearing the onus must demonstrate that the original decision was affected by legal, factual or discretionary error.
| The Owners – Strata Plan No 2661 v Selkirk [2024] NSWSC 760: The Supreme Court allowed an appeal from a decision originating in the Consumer and Commercial Division of NCAT. Importantly, the Court held that a mitigation defence is available in answer or partial answer to a claim for damages under s 106(5) of the Strata Schemes Management Act 2015 (NSW) (SSMA).
| Lazicic v Rossi [2024] NSWSC 777: The Supreme Court allowed an appeal from the Local Court, remitting the proceedings, on the basis that the Magistrate’s reasons for the decision were inadequate. The Magistrate had upheld a claim for the cost of a rental car in circumstances where the evidence suggested that the amount the claimant had accepted for renting the car was greater than the value of the car itself. The Supreme Court held that the Magistrate’s reasons failed to address why his Honour had rejected the appellant’s argument that the claimant did not act reasonably when accepting such a high rate from the rental car company, as well as why his Honour found the claimant acted reasonably when he failed to make any enquiries or conduct any internet searches as to other available cars and rates.
| | | Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17 8 May 2024 - Gageler CJ; Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
In sum: The High Court unanimously dismissed an appeal from a decision of the New South Wales Court of Appeal which concerned the measure of damages for a breach of contract. Cessnock City Council entered into an agreement with the respondent as part of the development of Cessnock Airport, but the Council later breached that agreement. By the time of the breach, the respondent had spent considerable money in anticipation of, or reliance on, the agreement, and the respondent’s business failed. The respondent commenced proceedings in the Supreme Court seeking damages for its wasted expenditure. The primary judge awarded the respondent only nominal damages, and the respondent then appealed to the Court of Appeal which allowed the appeal. The Council then appealed to the High Court. | The High Court dismissed the appeal, holding that where a defendant’s breach of contract has resulted in uncertainty about the position that the plaintiff would have been in had the contract been performed, there is an assumption in favour of the innocent party that, had the contract been performed, they would have recovered the expenditure that they reasonably incurred in anticipation of, or reliance on, the performance of the contract. | Catchwords: Contract – Breach of contract – Remedies – Damages – Reliance damages – Recoupment presumption – Where dispute arose from plan to develop airport at Cessnock – Where applicant operated as both commercial party and relevant planning authority – Where applicant lodged development applicant for consolidation of airport land into lots 1 and 2 – Where respondent was company that hoped to build hanger on lot 2 – Where on 26 July 2007, applicant executed agreement whereby it promised to grant respondent lease of part of airport – Where respondent spent around $3.7 million constructing hangar – Where on 29 June 2011, applicant told respondent that it would not be proceeding with subdivision of airport as it could not afford to connect proposed lots to sewerage system – Where primary judge held applicant breached parties' agreement by not committing funds to connect proposed lots to sewerage, but only awarded nominal damages – Where primary judge distinguished case from Amann Aviation and McRae v Commonwealth Disposals Commission (1951) 84 CLR 377, such that recoupment presumption did not arise, and even if such presumption had arisen, applicant had rebutted it – Where Court of Appeal held recoupment presumption was engaged, and presumption had not been rebutted – Whether Court of Appeal erred in concluding presumption arose that respondent would have at least recouped its wasted expenditure if contract had been performed – Whether presumption arises where contract has inherent contingency that no net profit would be made. | Held (dismissing the appeal): (i) Link to the High Court’s case summary is here. | Court of Appeal of New South Wales | Balasingham v Health Care Complaints Commission [2024] NSWCA 100 9 May 2024 - Ward P; Leeming JA
In sum: The Court will not intervene to correct immaterial error. Under r 51.53 of the Uniform Civil Procedure Rules 2005 (NSW), to obtain orders allowing an appeal, setting aside a decision made by NCAT and ordering a rehearing, it would be necessary to establish that “some substantial wrong or miscarriage has been thereby occasioned”.
Facts: Dr Balasingham sought leave to appeal from a decision of the Occupational Division of NCAT which found him guilty of both unsatisfactory professional conduct and professional misconduct. This decision followed a “Stage 1” hearing. At the time of the appeal in the Court of Appeal, no “Stage 2” hearing had taken place. NCAT had made several findings including that Dr Balasingham asked inappropriate questions regarding a patient’s sexual history, no informed consent had been obtained prior to performing a vaginal examination on the patient, and Dr Balasingham’s records fell significantly below the requisite standard.
On appeal, Dr Balasingham focused on a specific aspect pertaining to the appropriateness of the vaginal examination. Putting aside the informed consent aspect of the examination, NCAT at first instance had also found issue with the fact a vaginal examination had been conducted at all. Dr Balasingham stated that his reasoning for conducting the examination was that he suspected the patient may have had an ectopic pregnancy.
In support of a grant of leave, Dr Balasingham submitted that NCAT’s reasoning had materially misstated the evidence of an expert witness called by the Commission, Dr Jalota. The evidence of Dr Jalota indicated that a vaginal examination could neither confirm nor exclude the possibility of an ectopic pregnancy, and that the most appropriate course was to conduct an ultrasound instead. However, Dr Balasingham submits that Dr Jalota conceded this point when she acknowledged that although a vaginal examination could neither rule in nor rule out an ectopic pregnancy, it might shed light on its possibility, which in turn might inform whether or not the patient should immediately attend a hospital emergency department.
Held (refusing the grant of leave to appeal): (i) On a fair reading of the cross-examination in its entirety, it seems probable that Dr Jalota was conceding that there might be clinical utility in conducting a vaginal examination. This is so particularly given NCAT’s reasons do not appear to explain or otherwise address this specific aspect of Dr Jalota’s evidence. However, more is required to justify a grant of leave, and it is quite clear that success on this point does not undermine the findings of unsatisfactory professional conduct made in relation to other particulars. Dr Jalota’s concession only applies to circumstances where a medical practitioner then also proceeds to refer a patient to the emergency department or some other place where they may have an ultrasound. There was no suggestion Mr Balasingham referred the patient to emergency, and it therefore follows that there was no material error in the reasoning of NCAT at first instance (at [20]-[22]).
(ii) To obtain an order allowing an appeal, setting aside the decision at first instance and ordering a rehearing before NCAT, the facts would need to establish that “some substantial wrong or miscarriage has thereby been occasioned” (Uniform Civil Procedure Rules 2005 (NSW), r 51.53). The Court will not intervene to correct immaterial error. At its highest, Dr Balasingham has established an arguable case of error in respect of a relatively minor error in one aspect of the reasoning. This falls well short of establishing a case that a substantial wrong or miscarriage has occurred (at [26]-[28]). | McMillan v Coolah Home Base Pty Ltd [2024] NSWCA 138 5 June 2024 - Ward P; Leeming and Stern JJA
In sum: The Court of Appeal held that the appellants in this case did not obtain a legal estate or interest in land, but an entitlement to exclusive use and occupation deriving from their shares in Coolah Home Base Pty Ltd. Where the appellants then sought relief in the form of specific performance of their respective agreements which would mean selling each plaintiff an agreed allotment of land, the Court of Appeal noted that the sale of a particular allotment of land to any one or more of the appellants would have required the subdivision of the park into separate titles. The appellants sought to overcome this difficulty by arguing that there could be a transfer of a fractional interest in the whole of the land (to be held as tenants in common) to each appellant proportionate to the size of the individual appellant’s allotment. However, this is not what was promised to the appellants. The appellants’ response to this was, in effect, to suggest it was incumbent on the primary judge to fashion the best relief possible to give them the closest to that which they were promised. The Court of Appeal stated that that would come dangerously close to invoking palm tree justice (the framing of relief by idiosyncratic notions of fairness or good conscience).
Facts: The Directors (the third and fourth respondents) sought to establish a place in western NSW for “grey nomads” to reside, being people who are retired or semi-retired and live out of a caravan or motorhome. To achieve this, the Directors incorporated Coolah Home Base Pty Ltd (CHB, the first respondent) to purchase and hold park land, and Home Base Solutions (HBS, the seventh respondent) to operate the park. Residents would then buy a share in CHB which granted them the exclusive right to occupy a specific site in the park.
Several disputes arose over several years between residents (several of the appellants) and the Directors, before CHB was placed into voluntary administration. Among CHB’s creditors were the Directors themselves along with CHB’s professional advisors. A deed of company arrangement prepared by the Directors (the DOCA) provided for the sale of the park to Coolah Tourist Park Ltd (CTP, which was again owned by the Directors) and CTP then owned and operated the park. Further disputes then arose as to the nature of the appellants’ ownership of the sites, the transfer of the park to CTP, whether the appellants were required to enter into new site arrangements with CTP, and various allegations regarding the Directors breaching director duties and engaging in unconscionable conduct, harassment and coercion.
The primary judge dismissed most the appellants’ claims, but did find that certain conduct was oppressive. The only relief deemed appropriate was the making of an order that CHB be wound up which was granted. The appellants also sought relief in NCAT which ordered that CTP was bound by the terms of the previous arrangements between CHB and the appellants. On appeal, the appellants alleged several errors in the primary judge’s findings.
Held (dismissing the appeal): (i) There was no error in the primary judge’s finding that the appellants were not promised ownership of the sites as land. The appellants had not obtained a legal estate or interest in the land, but rather a contractual entitlement to exclusive use and occupation which derived from their shares in CHB. Similarly, the primary judge correctly identified that the appellants had not sought relief which would overcome the practical difficulties associated with specific performance being that the sale of a particular allotment of land to any of the appellants would have required the subdivision of the park into separate titles (at [87], [236], [238], [282]).
(ii) The primary judge did not err in finding that the sale of the park did not constitute oppressive conduct, as it was not the Directors that caused the sale, but the administrators (who were not bound by CHB’s constitution; Re Smith (2006) 58 ACSR 410; [2006] NSWSC 780). There was no error in the failure to order recission of the transfer of the park (at [297]-[308]).
(iii) Allegations of misleading or deceptive conduct based on representations must identify with particularity the representations alleged. There was no error in the primary judge’s approach to addressing the claim by reference to the stated particulars. In any event, there was no challenge to the primary judge’s findings that the appellants had not established reliance on the alleged representations (at [335], [343]).
(iv) The behaviour of the respondents over several years could not be classified as a course of “conduct” for the purposes of s 21 of the Australian Consumer Law, nor could it be classified as a “system” of conduct under s 21(4)(b). The allegations regarding unconscionable conduct, as well as instances of harassment and coercion, could not be made out (at [428]-[434]). | Shapkin v The University of Sydney [2024] NSWCA 156 27 June 2024 - Meagher JA; Griffiths AJA
In sum: Under s 34(1)(c) of the NCAT Act, the Supreme Court may refuse to conduct a judicial review of a decision of NCAT if an internal appeal or an appeal to a court could be, or has been, lodged against the decision. Section 34 should be understood not as an 'ouster provision' but one that confers on the Court a discretion to refuse to conduct a judicial review of NCAT decisions made at first instance and of decisions made by an Appeal Panel of NCAT.
Facts: Mr Shapkin (the applicant) commenced proceedings in NCAT against the University of Sydney (the University, the respondent) in relation to a dispute which arose regarding a student accommodation agreement. He was unsuccessful at first instance and appealed that decision to an Appeal Panel of NCAT, which dismissed the appeal.
Mr Shapkin then appealed that decision to the Supreme Court. Separately, Mr Shapkin also commenced additional proceedings against the University and NCAT by filing a judicial review summons, which challenged both the decision of NCAT at first instance and the decision of the Appeal Panel (together, the judicial review proceedings). The appeal to the Supreme Court and the judicial review proceedings were then heard together. The primary judge reserved his judgment on the appeal proceedings but found that the judicial review proceedings should not progress and should be stayed.
In relation to the application for a judicial review of the first instance decision, the primary judge considered that he was bound to decline to conduct a judicial review of the first instance decision based on 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, the primary judge exercised his discretion to refuse to conduct judicial review proceedings pursuant to s 34 of the NCAT Act which states that the Supreme Court may refuse to conduct a judicial review of a NCAT decision “if an internal appeal or an appeal to a court could be, or has been, lodged against the decision” (s 34(1)(c)). Mr Shapkin then sought leave to appeal from the orders made by the primary judge.
Held (refusing to grant leave to appeal): (i) The primary judge correctly understood s 34 of the NCAT Act not as an 'ouster provision', but as a provision which confers on the Court a discretion to refuse to conduct a judicial review. In Fong BHNF Fong v Weller [2024] NSWCA 46, Kirk JA observed at [29] that it was open to a Court to decline to grant relief in judicial review cases where there is an equally effective and convenient remedy which could be pursued. Mr Shapkin has not identified any issue sought to be raised by him in the judicial review proceedings which could not be raised in the appeal proceedings (at [40], [43]).
(ii) The reference to “Tribunal” in s 34(1)(c) refers to both a Tribunal at first instance and an Appeal Panel (see Allen v TriCare (Hastings) Pty Ltd [2015] NSWSC 416; Makowska v St George Community Housing Ltd [2022] NSWCA 5 at [28]-[30]). Whilst the primary judge did not expressly rely on s 34(1)(c) when refusing to conduct a judicial review of the first instance NCAT decision, it was open for him to do so. Any argument raised by Mr Shapkin that the primary judge erred in misapplying Wishart v Fraser (1941) CLR 470; [1941] HCA 8 does not need to be determined as there was an alternative basis for the refusal to conduct a judicial review, being s 34(1)(c). There are insufficient prospects to warrant a grant of leave to appeal in relation to the exercise of the Court’s discretion under s 34(1)(c) (at [44]-[47]).
(iii) The primary judge did not err in staying the judicial review proceedings. Again, this also involved an exercise of the primary judge’s discretion, such that Mr Shapkin needs to establish on a more than merely arguable basis that the discretion miscarried by reference to one or more of the kinds of error identified in House v The King (1936) 55 CLR 499; [1936] HCA 40. No such error has been identified (at [48]). | Court of Appeal of Queensland | Willmott v Carless [2024] QCA 115 14 June 2024 - Mullins P; Flanagan and Boddice JJA
In sum: QCAT referred a question of law to the Queensland Court of Appeal in circumstances where there appeared to be an inconsistency between two decisions in relation to provisions which were either identical or very similar to s 219Q of the Crime and Corruption Act 2001 (Qld). The proceedings arose in the context of the Assistant Commissioner of the Queensland Police Service imposing a disciplinary sanction on the appellant, a police officer, after finding that a disciplinary charge had been substantiated. The police officer then applied to QCAT for review, and the Crime and Corruption Commission elected to become a party to the review proceedings. QCAT then referred a question to the Court of Appeal seeking clarification as to whether, on the proper construction of s 20 of the QCAT Act and s 219Q of the Crime and Corruption Act, QCAT is bound to make its own decision based on the evidence then before it, or is its power to review predicated on there first being shown an error in the decision below. The Court of Appeal stated that QCAT’s review power under s 219Q is predicated on there being first shown legal, factual or discretionary error in the decision below.
Catchwords: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – CASES STATED AND REFERENCE OF QUESTION OF LAW – where the appellant was a sergeant of the Queensland Police Service – where the Assistant Commissioner made a decision under the Police Service Administration Act 1990 (Qld) in a disciplinary proceeding finding the charge against the appellant was substantiated and imposed a disciplinary sanction – where the appellant applied for review of those decisions to the Queensland Civil and Administrative Tribunal (the Tribunal) – where the Crime and Corruption Commission elected to become a party to the review pursuant to the Crime and Corruption Act 2001 (Qld) (CC Act) – where the Tribunal member made the referral order because there appeared to be inconsistent decisions of the Court of Appeal on the nature of the Tribunal’s review of a decision on a police disciplinary matter – where the reference involved a question of statutory construction concerning whether there was inconsistency between the nature of the hearing under s 219Q of the CC Act and under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether the Tribunal’s review under s 219Q(1) of the CC Act is predicted on there being first shown legal, factual or discretionary error in the decision below
Held (answering the question of law proposed by QCAT): (i) Link to the Queensland Court of Appeal’s case summary is here. | Supreme Court of New South Wales | The Owners – Strata Plan No 2661 v Selkirk [2024] NSWSC 760 21 June 2024 - Leeming JA
In sum: A mitigation defence is available in answer or partial answer to a claim for damages under s 106(5) of the SSMA which imposes on an owners corporation a duty to repair and maintain common property. It is open to an owners corporation to seek to establish that all or part of a lot owner’s claimed damages are not damages for foreseeable losses as a result of the owners corporation’s breach of duty, including by establishing that the lot owner has behaved unreasonably in failing to mitigate loss.
Catchwords: LAND LAW – strata title – duties of owners corporation – duty to maintain and repair common property – claims for rectification works and damages by lot owner under Strata Schemes Management Act 2015 (NSW), s 106(5) and 232(1) following breach of duty – whether entitlement of owners corporation to apply for orders to inspect and perform works on lot owner’s property an answer to resistance by lot owner to accessing her property – whether open to owners corporation to rely on unreasonable conduct by lot owner in failing to mitigate her loss in partial defence to claim for damages – consideration of nature of duty owed by owners corporation and statutory right to damages under s 106 | Lazicic v Rossi [2024] NSWSC 777 25 June 2024 - Kirk J
In sum: Despite the burden placed on Magistrates in the Local Court to manage significant caseloads, there remains a duty to provide reasons which consider and address the core matters of law or fact in dispute between parties. The judicial duty to give reasons does not extend to the requirement that every argument or piece of evidence is referred to. However, the reasons should be sufficient for it to be apparent to parties that those core matters have been grappled with, such that they can consider the merits of any appeal. An appeal court should be able to understand the essence of why a judicial officer came to such conclusions in relation to those core matters.
Facts: Mr Lazicic (the appellant) crashed into a vehicle owned and driven by Mr Rossi (the claimant). The claimant’s vehicle was written off by his insurer and he was required to hire a rental car until his insurer provided him with a replacement car. A dispute arose as to the amount claimed as payment for the rental car in circumstances where the rental car company charged the claimant $29,684.16 for a rental period of less than three months. The claimant had never made any other enquiries as to comparable prices or other options. The evidence indicated this amount was greater than the purchase price of the car. When the appellant’s insurer, the NRMA, declined to pay that sum, the claimant instituted proceedings in the Local Court which upheld his claim in full, ordering that the appellant pay the sum claimed along with interest and costs. The appellant then appealed to the Supreme Court pursuant to s 39(1) of the Local Court Act 2007 (NSW), which grants a party the right to appeal a judgment or order of the Local Court to the Supreme Court on a question of law. The appellant raised several grounds of appeal, including submitting that the reasons provided by the Magistrate at first instance were inadequate, and that there was a constructive failure to exercise jurisdiction.
Held (allowing the appeal, setting aside the judgment of the Local Court, and remitting the proceedings to the Local Court for determination according to law): (i) The Magistrate’s approach, that the “true question” is “whether the cost incurred was outside the range”, has the potential to mislead if taken out of context. That is not the legal test. The test is whether or not the claimant acted reasonably in acting as they did to incur the cost for which they are claiming reimbursement. The decision in Stocovaz v Fung [2007] NSWCA 199 should not be taken as authority for the proposition that a claimant will win simply by pointing to a range of market prices and declaring the rate chosen was not the most expensive one. However, neither excessive diligence nor perfection is required of a claimant (see, Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 at [187]) (at [29]-[31]).
(ii) Whilst it would be unrealistic and unfair to expect magistrates to produce judgments analysing the law and facts with the thoroughness that might be expected of higher courts with smaller caseloads, there remains a duty to provide reasons which consider and address the core matters of law or fact in dispute. The reasons should be sufficient for parties to conceive that those core matters have been grappled with, in a reasoned way, and they should be adequate for the exercise of an appeal (at [37]-[38]).
(iii) The Magistrate’s reasons fail to address why he was rejecting the appellant’s arguments that the claim should not be allowed because the claimant did not act reasonably in accepting the rental car company’s rates. His Honour did not address why it was reasonable to accept that rate when it was significantly higher than other available cars. Additionally, his Honour did not explain why the claimant acted reasonably when he failed to make any enquiries or conduct any internet searches as to other available cars and rates. It was not sufficient to summarise the evidence of either side, refer to the law, and then state a conclusion. His Honour thereby failed to comply with his duty to provide reasons for his conclusion, and such an error is sufficient to uphold the appeal. This error overlaps significantly with another ground raised by the appellant, that the Magistrate failed to exercise his jurisdiction. The process of decision-making has not validly been completed, and this ground is also made out (at [52]-[55], [57]-[58]). | | 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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