| | NCAT Legal Bulletin Issue 4 of 2020
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| 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, Supreme Court of New South Wales and the New South Wales Court of Appeal, including: - Moore v Scenic Tours Pty Ltd [2020] HCA 17 – where the High Court held that, although s 275 of the Australian Consumer Law picks up and applies s 16 of the Civil Liability Act 2002 to proceedings regarding breaches of consumer guarantees in federal jurisdiction, s 16(1) does not apply to preclude recovery of damages for disappointment and distress arising from a breach, if not resulting from any physical or psychiatric injury.
- Hanson v Metricon Homes Pty Ltd [2020] NSWSC 401 – where the Supreme Court allowed an appeal from an Appeal Panel decision in NCAT on the basis that that the appellants were denied procedural fairness by the Senior Member in the first instance proceedings.
- Herbert v NSW Land and Housing Corporation [2020] NSWCA 80 – where the Court of Appeal refused leave to appeal from an Appeal Panel decision in NCAT on the basis that (a) the cancellation of a rent rebate does not, as a matter of law, increase the rent payable in the sense described in s 41 of the Residential Tenancies Act 2010, and (b) although the termination notice served on the appellant tenant may have been defective, the tenant had not raised this in the proceedings before the Tribunal, and was bound by the way he had conducted those proceedings.
- Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62 – where the Court of Appeal granted leave to appeal on a question of law, being whether the Tribunal has power to make costs orders in proceedings involving federal jurisdiction which are transferred to an authorised court on that basis.
This issue also contains summaries of significant first instance decisions in NCAT's Guardianship Division which relate to the current COVID-19 pandemic. |
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| Moore v Scenic Tours Pty Ltd [2020] HCA 17
24 April 2020 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In sum: The High Court unanimously allowed an appeal from a decision of the New South Wales Court of Appeal concerning damages for disappointment and distress caused by breaches of consumer guarantees in the Australian Consumer Law (the ACL). The High Court held that, although s 275 of the ACL picks up and applies s 16 of the Civil Liability Act 2002 (NSW) (the CLA) to proceedings in federal jurisdiction, s 16(1) of the CLA does not apply to preclude the recovery of damages for disappointment and distress not consequential upon physical or psychiatric injury.
Facts: The appellant, Mr Moore, booked a holiday cruise tour in Europe for himself and his wife, supplied by the respondent, Scenic Tours Pty Ltd (Scenic). The tour was severely disrupted by adverse weather conditions ([1], [7]).
Representative proceedings were commenced against Scenic in the Supreme Court of New South Wales by Mr Moore on his behalf and that of approximately 1,500 passengers of 13 Scenic cruises which were scheduled around the same time ([8]).
The primary judge held that Scenic had failed to comply with the consumer guarantees in ss 60 and 61 of the ACL (respectively, guarantees as to due care and skill and fitness for a particular purpose). Mr Moore claimed damages for loss suffered as a result of Scenic's breaches. The alleged loss included disappointment and distress for breach of a contract to provide a pleasant and relaxed holiday. It was not alleged that any physical injury or psychiatric illness resulted from the breach ([9]).
Section 275 of the ACL provides that, where there is a failure to comply with a consumer guarantee that applies to a supply of services, and the proper law of the contract is a law of a State or Territory, "that law applies to limit or preclude liability for the failure, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of any liability, for a breach of a term of the contract for the supply of the services". It was undisputed that the proper law of the contract between Mr Moore and Scenic was the law of New South Wales, which includes the CLA ([15]-[16]).
Section 16(1) of the CLA precludes, in relation to personal injury, the awarding of damages for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. It was common ground that Mr Moore's loss did not meet this threshold, and accordingly, if s 16(1) applied, it would preclude his claim ([20]-[21]).
The primary judge awarded Mr Moore damages for disappointment and distress arising from Scenic’s breaches of the consumer guarantees in the ACL. His Honour held s 275 of the ACL picks up and applies s 16(1) of the CLA to proceedings in federal jurisdiction and that a claim for damages for disappointment and distress relates to personal injury. His Honour held, however, that s 16 of the CLA has no application to loss suffered outside of NSW, and so Mr Moore's claim for damages for disappointment and distress was unaffected ([24]-[26]).
On appeal, the Court of Appeal upheld the primary judge's conclusions that s 275 picks up and applies s 16 and that Mr Moore’s claim related to personal injury. However, the Court of Appeal held that s 16 applies to non-economic loss sustained outside of NSW, and therefore precluded Mr Moore's claim for damages of that kind. By grant of special leave, Mr Moore appealed to the High Court ([27]-[30]).
Held (allowing the appeal):
(i) Section 275 of the ACL picks up and applies s 16 of the CLA. The High Court rejected Mr Moore’s argument that s 275 is directed to State and Territory laws that limit or preclude liability for breach of contract, but is not concerned with laws that limit the assessment of damages once liability has been established. Such a construction sits uneasily with the ordinary meaning of the text of s 275, and with other provisions in the ACL (in particular, ss 267(3) and (4), 281 and 285). Contrary to Mr Moore’s submissions, the legislative history of the ACL provides no support for such an “artificially constricted understanding” of s 275 ([32]-[38]).
(ii) Mr Moore’s claim for damages compensating disappointment and distress fell outside Part 2 of the CLA, because it did not relate to any personal injury, and did not constitute “non-economic loss” under that Part ([40], [46], [56]-[57]).
(iii) Accordingly, s 16 of the CLA did not apply to preclude Mr Moore from recovering damages for disappointment and distress ([60]).
(iv) The text and structure of Part 2 of the CLA are clear that non-economic loss in that context is a head of loss associated with personal injury as pain and suffering ([46]).
(v) Section 11A of the CLA provides that Part 2 applies to and in respect of an award of personal injury damages. Section 11 of the CLA defines “injury”, meaning “personal injury”, as including “impairment of a person’s mental or physical condition” ([17]-[18]).
(vi) Disappointment at a breach of a promise to provide recreation, relaxation and peace of mind is not an "impairment" of the mind or a "deterioration" or "injurious lessening or weakening" of the mind: New South Wales v Corby (2010) 76 NSWLR 439 at 444. Rather, frustration and indignation as a reaction to a breach of contract under which the promisor undertook for reward to provide a pleasurable and relaxing holiday is, of itself, a normal, rational reaction of an unimpaired mind ([41]).
(vii) In Baltic Shipping Co v Dillon (1993) 176 CLR 344, the High Court unanimously accepted that disappointment and distress "caused by the breach of a contract ... the object of the contract being to provide pleasure or relaxation" is a compensable head of loss separate and distinct from “injured feelings compensable under the rubric of pain and suffering and loss of amenities of life associated with personal injury” ([42]-[43]).
(i) Given its conclusion that s 16 does not apply to damages for disappointment and distress unrelated to personal injury, the Court found it unnecessary to decide whether s 16 applies to loss suffered outside of NSW ([60]).
Read the decision on the High Court of Australia website.
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| Supreme Court of New South Wales
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| Hanson v Metricon Homes Pty Ltd [2020] NSWSC 401
16 April 2020 - Hamill J
In sum: The Supreme Court allowed an appeal from an Appeal Panel decision in NCAT, holding that the Appeal Panel erred in finding that the Senior Member below did not deny the appellants procedural fairness. Hamill J held that the appellants were denied procedural fairness in circumstances where their lawyer withdrew from representing them at the beginning of the proceedings, the Senior Member did not enquire why, and required the appellants to present their own case, despite their protestations that they were unprepared, and particularly ill-equipped to deal with the contents of a complex expert report.
Facts: The appellants, Mr and Mrs Hanson, and respondent, Metricon Homes Pty Ltd (Metricon) are parties to a home building contract. In December 2016, Metricon brought a claim against the Hansons for payment of approximately $170,000 which it claimed was still owing under the contract ([1], [2]).
The Hansons filed a defence alleging, amongst other things, that “the build is incomplete and the work done is of poor quality”, that they had been treated disrespectfully by Metricon employees, and that “there was delay after delay with no explanation” ([3]).
Subsequently, the Hansons also filed a cross-claim against Metricon, which had substantial cross-over with the matters raised in the defence. The Tribunal determined that the two claims should be heard together ([4]-[5]).
Prior to the hearing, the Tribunal directed that an independent expert report (the Zakos report) be prepared, and made “seemingly contradictory” directions to the following effect ([7]-[10]):
1. The Tribunal notes that the parties agree to be bound by the determination of the independent building expert; and 2.To the extent that the Hansons claim not to rely on the Zakos report, they are to ensure that their own expert witness is present at the Tribunal hearing.
The Zakos report was not received by the parties until the Friday before the hearing. At the commencement of the hearing, the Hansons’ lawyer asked the Senior Member’s leave to withdraw from the proceedings, which the Senior Member granted. The Hansons later advised the Senior Member that this was because the late service of the Zakos report gave their lawyer limited opportunity to prepare ([11], [14], [16]).
After the Hansons’ lawyer withdrew, the Senior Member asked the Hansons if they were reading to proceed with the hearing. Both replied: “not really” ([15]).
The Hansons repeated a number of times throughout the hearing that they were unfamiliar with the case materials, had had “very little time to digest” the Zakos report, were “grossly unprepared”, felt they were “not getting a fair hearing” or a “fair chance to present [their] best case”, and wanted an opportunity to seek legal advice ([16], [21], [25]-[27]).
However, the Senior Member declined to postpone hearing the matter, citing the guiding principle of the Tribunal in s 36 of the NCAT Act ([19]).
In addition, the Senior Member did not allow the Hansons an opportunity to examine their own expert witness, on the basis that in his view, they had already agreed to be bound by the Zakos report ([25]).
The Hansons expressed confusion over whether or not they should withdraw their own cross-claim, which they eventually elected to do on the second day of the hearing ([28]).
The Senior Member appeared to treat the Hansons’ defence to Metricon’s claim as also having been effectively withdrawn, or as being “basic” and inconsequential, and decided in favour of Metricon ([30]-[34]).
The Appeal Panel refused the Hansons leave to appeal, and dismissed the appeal, rejecting their claims that (a) they were denied procedural fairness by not being granted an adjournment or a reasonable opportunity to present their case, and (b) the Senior Member failed to consider their assertions (contained in their defence) that Metricon was not entitled to payment due to allegations of incomplete and poor quality work ([37]).
Held (granting an extension of time, granting leave to appeal and allowing the appeal):
Whether the Hansons were denied procedural fairness in the hearing before the Senior Member – YES
(i) The Tribunal failed to comply with its statutory obligations and the common law requirements of procedural fairness. The failure of the Appeal Panel to recognise this constituted an error of law ([67], [69]).
(ii) In particular, Hamill J was satisfied that ([68]):
(a) The Senior Member applied the wrong test in determining whether to grant the adjournment.
(b) The Senior Member granted leave for the Hansons’ solicitor to withdraw without having an understanding of why he was withdrawing.
(c) The Hansons misunderstood the status of the Zakos report or, alternatively, the Senior Member erroneously prevented them from challenging aspects of it, including by calling evidence. This situation arose because of the ambiguity surrounding the directions made prior to the hearing. The delay in service of the Zakos report coupled with the fact that the Hansons were unrepresented meant that they were ill equipped to present their case.
(d) The Appeal Panel did not grapple in any meaningful way with the fact that the Hansons were denied the opportunity to call their expert or with the Tribunal’s earlier direction that they have their expert available.
(e) The Hansons did not understand that the Senior Member was proceeding on the basis that “effectively [their] defence was [their] cross-application”, and had therefore been withdrawn. This misunderstanding meant that the Hansons were again denied the opportunity to put the case of incomplete work as it was formulated in their initial defence.
(f) It was not explained to them when they withdrew their cross-claim that they could later be estopped (as Metricon sought to do in its response to the appeal) from re-instituting that claim or challenging the findings of the Zakos report.
(g) Although there was no doubt that the Senior Member made some efforts to comply with s 38(5) of the NCAT Act, upon reading the transcript in its entirety, Hamill J was satisfied that the Hansons were denied procedural fairness in the first instance proceedings.
(iii) Hamill J also did not agree with the Senior Member’s statement to the Hansons that the Zakos report was a “simple report”, saying: “It may be simple for those who practice in the area of building and construction law, but it was not likely to be simple to an unrepresented litigant… [it] was around 100 pages in length and was served well out of time… on the last working day before the hearing” ([12]).
(iv) Further, his Honour was satisfied that, had the Senior Member taken into account the Hansons’ defence or allowed the opinion of their expert to be heard, there was a chance that the Hansons might have achieved a different and more favourable outcome. Accordingly, the Tribunal’s denial of procedural fairness might have resulted in a serious miscarriage of justice, and the Appeal Panel should have granted leave to appeal on this basis ([77]).
Whether the Appeal Panel erred in law by failing to adequately (or at all) consider the ground of appeal challenging the Tribunal’s finding that the Hansons “had not raised incomplete work” as a defence to Metricon’s claim – YES
(v) In light of the finding that the Hansons were denied procedural fairness, it was unnecessary to go into great detail in relation to this ground [79].
(vi) This ground might not have warranted a grant of leave on its own, because the Hansons’ allegation of incomplete work was argued in a very limited fashion before the Tribunal. However, Hamill J observed that this issue was “difficult to disentangle from the more serious assertion that there was a denial of procedural fairness”, in circumstances where the Hansons’ defence was “dealt with in a peremptory manner because the Hansons withdrew their cross-claim” ([83]).
(vii) Accordingly, Hamill J said he would also uphold this grant of appeal ([84]).
(viii) In addition, Hamill J held that the Hansons should be granted an extension of time for bringing their appeal, because ([85]-[88]):
(a) the delay in filing (five weeks) was a relatively small portion of the overall delay;
(b) the delay was explained satisfactorily by reference to Mrs Hanson’s serious illness (as she was undergoing chemotherapy in the period following the Appeal Panel’s decision); and
(c) the ground of appeal asserting a denial of procedural fairness was a matter of real substance that should be upheld.
Read the decision on the NSW Caselaw website. |
| New South Wales Court of Appeal
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| Herbert v NSW Land and Housing Corporation [2020] NSWCA 80
30 April 2020 - Macfarlan JA, Meagher JA
In sum: The Court of Appeal dismissed an appeal from a single judge in the Supreme Court (Adamson J), which in turn was an appeal from an Appeal Panel decision in NCAT relating to termination of a residential tenancy agreement. In doing so, the Court of Appeal upheld Adamson J’s finding that the cancellation of a rent rebate under s 56 of the Housing Act 2001 (NSW) does not, as a matter of law, increase the rate payable in the sense described in s 41 of the Residential Tenancies Act 2010 (NSW) (the RT Act) ([11]). Although it was arguable that the initial termination notice was inaccurate and defective, the appellant did not press this issue in the appeal, and in any case, could not have raised it in circumstances where it was not argued in the Tribunal below.
Facts: The appellant, Mr Herbert, lives with his wife and adult children in social housing in Woolloomooloo, leased by the first respondent. The first respondent had previously granted Mr Herbert a rental rebate under s 56 of the Housing Act, however, this rebate was cancelled in May 2019. From that date, Mr Herbert was required to pay full weekly rent without the rebate, a significantly higher amount than he was previously paying ([1], [5]-[7]).
In March 2019, the Tribunal ordered under s 87(4) of the RT Act that the residential tenancy agreement be terminated because Mr Herbert had breached it by failing to pay rent ([1]).
Mr Herbert’s appeal from that order was dismissed by an Appeal Panel in July 2019. He then appealed to the Supreme Court, where Adamson J granted leave to appeal on one ground, but dismissed the appeal ([2]).
Mr Herbert then sought leave to appeal to the Court of Appeal ([3]).
Held (dismissing the summons seeking leave to appeal):
(i) Mr Herbert repeated his argument made before the Supreme Court that the termination notice he received, and the Tribunal’s termination order confirmed by the Appeal Panel, were invalid because his rental rebate could not be cancelled, so as to result in a rent increase, unless he was first given 60 days written notice under s 41 of the RT Act. Accordingly, he argued that the increase in rent was not valid, that he had paid all the rent due under the agreement, and that he was therefore not in breach ([8]).
(ii) The Court of Appeal affirmed Adamson J’s reasons for rejecting this argument. The cancellation of Mr Herbert’s rent rebate did not, as a matter of law, increase the rate payable ([11]).
(iii) None of the other grounds put forward by Mr Herbert, some of which were “difficult to follow”, constituted “arguable grounds” in support of the appeal ([14]).
(iv) The Court of Appeal also adverted to a ground which was argued before Adamson J, but not pressed in the appeal. This was that the termination notice served on Mr Herbert was defective because it overstated the amount of rent owing, and so did not inform Mr Herbert of the amount that he needed to pay in order to avoid being required to vacate the premises (cf RT Act, s 88(3)) ([9]).
(v) The Court of Appeal accepted it was “arguable” that the Tribunal’s failure to identify that the termination notice was defective involved an error of law, which led to a further error of law in taking into account an irrelevant consideration when addressing whether Mr Herbert’s breach was sufficient to justify termination of the agreement under s 87(4). In doing so, the Tribunal may have committed a jurisdictional error ([14]).
(vi) However, Adamson J was correct in concluding that Mr Herbert was not permitted to raise these matters for the first time in the Supreme Court, when they had not been raised in either of the Tribunal proceedings. The general principle is that parties are bound by the way they conduct proceedings, and therefore disallowed from raising new matters on appeal, especially where they would have affected the course of evidence, were deliberately not raised, or would not have made a difference to the outcome had they been raised ([15]-[16]).
(vii) Leave to appeal was refused, because “[t]he only arguable errors [were] not relied on by Mr Herbert in his proposed appeal” and were “in respect of matters which would have been addressed by further evidence before the Tribunal, and which in any event were not likely to have been material to its decision” ([17]).
Read the decision on the NSW Caselaw website. |
| Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62
16 April 2020 - Leeming JA, White JA
In sum: The Court of Appeal granted leave to appeal from a decision of a single judge in the Supreme Court (Harrison AsJ), which in turn was an appeal from an Appeal Panel decision in NCAT. Leave was confined to the questions of whether the Tribunal (at first instance and on appeal) has power to make costs orders in proceedings where a matter is transferred to a court of competent jurisdiction because it involves an exercise of federal judicial power. The appeal was set down for hearing in due course.
Facts: Mr Stephen Wilson sought leave to appeal from a decision of Harrison AsJ dismissing two separate proceedings brought by him seeking (a) to appeal from, and (b) judicial review of, certain orders made by NCAT. The orders challenged by Mr Wilson included costs orders made against him in proceedings at first instance and before the Appeal Panel of NCAT ([2]).
In the former proceedings, the Senior Member held that Mr Wilson’s claim had been brought out of time, and that the Tribunal did not have the jurisdiction to hear and determine the dispute, as it required application of federal legislation – namely, the Superannuation Industry (Supervision) Act 1993 (Cth) and its associated regulation. Nonetheless, the Senior Member ordered that Mr Wilson pay the respondents’ costs of the Tribunal proceedings. This decision was not published.
In the latter proceedings, the Appeal Panel again held that the Tribunal lacked jurisdiction to determine the matter, and ordered that the proceedings be transferred to the Local Court. The Appeal Panel similarly ordered that Mr Wilson pay the respondents’ costs of the appeal proceedings.
Mr Wilson acknowledged that he had not taken the point, either before NCAT or before Harrison AsJ, that NCAT lacked power to make those costs orders ([3]).
Mr Wilson submitted that, given the matter involved federal jurisdiction, which could not be heard and determined by NCAT, NCAT lacked power to make the costs orders. He also submitted that s 34C(4)(g) of the NCAT Act confirmed the absence of power on the part of NCAT, as opposed to the authorised court to which a proceeding is transferred, to make orders as to costs ([3]).
Held (granting leave to appeal on a question of law):
(i) In matters of this kind, pursuant to ss 82 and 83 of the NCAT Act, an appeal to the Supreme Court on questions of law lies from decisions of the Appeal Panel but not from first instance decisions ([2]).
(ii) In many cases, leave would not be granted to raise a point not taken at first instance. However, the respondent conceded, and the Court of Appeal agreed, that this was an important and generally applicable question of principle to cases involving federal jurisdiction in which NCAT makes costs orders. It is a pure question of law, which does not turn on evidence: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35 ([4]).
(iii) Given that the issue, “if not decided now w[ould] likely arise between the parties at some stage”, the Court of Appeal observed there was “much to be said for that question being determined now, in proceedings pending in this Court, rather than having the parties incur time and expense enforcing costs orders which on one view are beyond power” ([4]).
(iv) For that reason, the Court of Appeal considered that there should be a grant of leave in order to resolve the issue ([5]).
(v) Leave was also granted to answer the question of what order(s) should be made if the Tribunal did not in fact have the power to make the costs orders. This would permit consideration of whether Mr Wilson’s appeal from the first instance costs order was rightly dismissed by Harrison AsJ, on the basis that Mr Wilson did not seek to challenge that costs order before the Appeal Panel ([1], [6]).
(vi) The remainder of Mr Wilson’s grounds were underdeveloped, would not have any practical consequences for the parties, or did not raise any question of general principle, public importance, or injustice going beyond the merely arguable warranting any broader grant of leave to appeal ([7]-[10]).
Read the decision on the NSW Caselaw website.
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| Decisions of Interest Bulletin
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| | Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News [2020] NSWCA 56CIVIL PROCEDURE — Court of Appeal — Leave to appeal – whether appeal incompetent – notice of appeal – application filed out of time – where no application has been made for an extension of time or explanation given – no evidence appeal involves matter at issue of value of $100,000 or more
DEFAMATION — whether denial of procedural fairness – whether conclusions open to be drawn by primary judge in absence of cross-examination – whether appellant had adequate opportunity to explain his position – where trial judge did not notify the appellant of her doubts concerning his evidence
DEFAMATION — Defences — honest opinion — whether defamatory matter was statement of fact or opinion/comment – where matters of opinion intermingled with statements of fact – whether defamatory matter or defamatory meaning as found focus of inquiry
DEFAMATION — Defences — honest opinion – whether fairness or honesty of comment must be responsive to the defamatory meaning as found or the defamatory matter – whether comment or opinion based on proper material
DEFAMATION — Defences — fair report – whether defamatory matter a fair report where it is a substantially accurate report in fact – where not a substantially accurate report of the meaning conveyed by the report
DEFAMATION — Defences — statutory qualified privilege – whether failure to seek comment from the appellant was not reasonable – where Royal Commission proceedings were a matter of public interest – where evidence of the appellant was ongoing – where appellant contacted through a conduit and published a statement in same publication as appeared the defamatory matter |
| QSuper Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55CONSTITUTIONAL LAW – Judicial power of the Commonwealth – Australian Financial Complaints Authority (AFCA) given powers to determine superannuation complaints – AFCA determined that superannuation trustee’s decision not to refund money to member operated unreasonably or unfairly in its operation in relation to that member – decision alleged to be or to involve an impermissible exercise of judicial power because it was “in effect” a determination of existing rights of the parties in relation to the operation of s 1017B of the Corporations Act – AFCA’s determination did not involve any determination of rights under s 1017B – entitlement of non-judicial body to determine rights of parties as a step “along the way” to a non-judicial decision discussed – ability of non-judicial body to determine rights of parties where other aspects of judicial power not present – application dismissed
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| Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65EVIDENCE – expert evidence – trial judge rejected expert report as beyond witness’ expertise and not disclosing reasoning process – Evidence Act 1995 (NSW), s 79 – no error established
NEGLIGENCE – personal injury – plaintiff’s horse fell while warming up before competing in equestrian events – plaintiff’s horse “spooked” by noise made by children near warm-up area – whether plaintiff participating in dangerous recreational activity – whether plaintiff’s harm resulted from materialisation of obvious risk – appropriate level of generality or particularity of “obvious risk of harm” and “dangerous recreational activity” – Civil Liability Act 2002 (NSW), ss 5F, 5K and 5L considered - whether plaintiff had established a reasonable person in defendant’s position would have taken precaution of stationing marshals in warm-up area - significance of risk warning signed by plaintiff as a precaution – Civil Liability Act s 5B(1)(c) considered – appeal dismissed |
| Klewer v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 69ADMINISTRATIVE LAW – judicial review – applicant subject to vexatious proceedings order – whether applicant required leave under the Vexatious Proceedings Act 2008 (NSW) to institute an appeal to the District Court against her convictions and sentences in the Local Court - whether applicant required leave under the Vexatious Proceedings Act to commence judicial review proceedings in the Court of Appeal in circumstances where she did not require leave to commence proceedings in the court whose decision was the subject of the application for judicial review.
VEXATIOUS PROCEEDINGS – applicant subject to vexatious proceedings order – whether applicant required leave under the Vexatious Proceedings Act 2008 (NSW) to institute an appeal to the District Court against her convictions and sentences in the Local Court – whether applicant required leave under the Vexatious Proceedings Act to commence judicial review proceedings in the Court of Appeal in circumstances where she did not require leave to commence proceedings in the court whose decision was the subject of the application for judicial review. |
| Bax v Legal Practitioners Admission Board [2020] QCA 71
PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – FIT AND PROPER PERSONS – where the appellant previously struck off the roll of solicitors for professional misconduct for backdating documents and persistent dishonesty – where over 20 years later the appellant applied to the Legal Practitioners Admissions Board for a declaration under s 32 of the Legal Profession Act 2007 (Qld) that without more, the striking off would not adversely affect the assessment of whether he is a fit and proper person for admission as a legal practitioner – where the appellant held a number of licences and registrations in connection with debt collecting, taxation advice, administration of Commonwealth debt agreements, superannuation advice and as a real estate agent – where the appellant expressed remorse for the misconduct that resulted in his striking off – where the Board refused to make the declaration – whether the Board erred in refusing to make the declaration – whether application for early consideration of suitability was appropriate for a person seeking re-admission after being struck off as a legal practitioner |
| Kariko v Korua [2020] PGSC 29APPEAL – Judicial Review Application – termination of employment – grounds for judicial review – grant of application –review of – appeal grounds – whether in compliance with proper grounds of appeal – decision making process – whether in compliance with right to remain silent – caution against self-incrimination – lack of – whether in breach of Constitution s. 37 – reasons for decision – lack of – means no reasons for decision – Appeal dismissed. |
| NCAT Guardianship Division
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| | The following summaries are of significant first instance decisions in NCAT's Guardianship Division which relate to the current COVID-19 pandemic. Each case title is hyperlinked to the full decision available on the NSW Caselaw website. |
| GZK [2020] NSWCATGD 5
23 April 2020 - M Schyvens, Deputy President; J Newman, General Member (Community)
In this matter the Tribunal developed a new function of guardianship that relates specifically to COVID-19, and is limited in its operation for the duration of restrictions on public movements caused by the pandemic ([2]).
The Tribunal held that an additional function was required to protect and promote GZK’s welfare, health and general well-being, due to his diminished insight as to how continuing to move freely in the community might put him at risk of contracting COVID-19, or of having services withdrawn which allow him to continue living in his own home ([2]).
In summary, the function:
- has the characteristics of a combination of the traditional “coercive accommodation function” and the “restrictive practices function” but without the requirement of a behaviour support plan ([42]);
- is directly linked to public health orders restricting the public’s normal freedom to leave their homes due to the COVID-19 pandemic ([42]); and
- can only be exercised ([3]):
- as a last resort;
- while a relevant public health order is in force; and
- to ensure that the subject person complies with the public health order.
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| UZX [2020] NSWCATGD 33 April 2020 - C Fougere, Principal Member; J Newman, General Member (Community)
In this matter the Tribunal considered the operation of the Public Health Act 2010 more broadly in relation to guardianship.
The applicant in this matter, UZX’s clinician, sought a variation of UZX’s guardianship order to add an additional authority so that UZX could be placed in emergency respite accommodation, and kept there during the COVID-19 pandemic. This additional authority would give the Public Guardian the authority to authorise others, including members of NSW Police and Ambulance Service, to take UZX to a place approved by the guardian, keep her at that place, and return her to that place should she leave it ([6]).
In deciding whether to vary the guardianship order as requested, the Tribunal had regard to the practicability of services being provided to UZX without the need for making the amended order: s 14(2)(d), Guardianship Act 1987 (NSW) ([13]).
At the hearing, the evidence suggested that UZX might meet the requirements of s 62(1)(b) of the Public Health Act 2010 as a result of the COVID-19 pandemic and could therefore be a person for whom a public health order might be made pursuant to that section ([14]).
Section 62 relevantly provides ([18]):
- An authorised medical practitioner may make a public health order in respect of a person if satisfied, on reasonable grounds, that the person has been exposed to a contact order condition (including COVID-19), is at risk of developing that condition and, because of the way the person behaves, may be a risk to public health: s 62(1)(b).
- A public health order may authorise the person subject to the order to be detained at a specified place for the duration of the order: s 62(4).
- In considering whether or not to make a public health order, the authorised medical practitioner must take into account the principle that any restriction on the liberty of a person should be imposed only if it is the most effective way to prevent any risk to public health: s 62(6).
In relation to the variation of the guardianship order sought by the applicant, the Tribunal noted at [30] that, “[i]n examining the need for coercive powers of guardianship to provide services to a person, the Tribunal must conduct such examination being mindful of the principles provided in s 4 of the Guardianship Act”: NIQ [2014] NSWCATGD 28 at [51]-[52]; NQC [2019] NSWCATGD 24 at [30]-[31].
Given the mandatory consideration under s 14(2)(d) of the Guardianship Act as to whether it is practicable for services to be provided without the variation sought, the Tribunal had to consider whether the provisions of the Public Health Act, in particular s 62, provided an alternative pathway by which UZX’s welfare and interests could be met in the context of the public health risk of COVID-19 and its possible consequences ([31]-[32]).
The objects in s 3 of the Public Health Act make clear its focus on managing risk to the community and that the “protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act” ([41]).
In this case, the Tribunal was satisfied that the issues concerning UZX did not appear to have public health concerns as their focus, such that an authorised medical practitioner might make a public health order in respect of UZX under s 62 ([42]).
However, the Tribunal observed that “exceptional” or “extreme” circumstances in which a threat is posed to public health do not appear to be required before a public health order can be made under s 62 ([43]).
In these circumstances, the Tribunal accepted that there did not appear to be any other avenue by which UZX’s welfare and interests could be promoted, and for services to be provided to her, without the requested authority being included in the order: Guardianship Act, s 14(2)(d) ([46]).
In reaching this decision, the Tribunal gave greater weight to the need for UZX to be protected from neglect than to the other principles in s 4 of the Guardianship Act requiring the Tribunal to restrict UZX’s freedom as little as possible, to take account of her views, and to encourage her to be self-reliant in her personal affairs ([47]).
Accordingly, the Tribunal varied the order as requested ([48]). |
| GMI [2020] NSWCATGD 629 April 2020 - M D Schyvens, Deputy President; Dr M J Wroth, Senior Member (Professional)
The Tribunal consented to medical treatment being provided to GMI, who was a crew member on the Ruby Princess cruise ship and a foreign national. GMI was first intubated on board the cruise ship, before being transferred to a Sydney hospital to be treated for severe respiratory failure secondary to COVID-19 infection. He could not consent to medical treatment himself, having been in an induced coma for 30 days, and his family members could not be contacted. The Tribunal gave its consent under s 44 of the Guardianship Act 1987 for the applicant to perform a percutaneous tracheostomy on GMI under general anaesthetic, being an optimal means of removing ventilation and aiding GMI’s recovery. |
| STC3141 – An Open Label, Multi-Centre Study to Determine the Safety and Efficacy of STC3141 Administered as an Infusion for up to 5 Days in Subjects with COVID-19 Respiratory Distress Syndrome Requiring Intensive Care [2020] NSWCATGD 1624 April 2020 - M D Schyvens, Deputy President; Dr M J Wroth, Senior Member; J L Newman, General Member
The Tribunal approved a clinical trial involving new medication for the treatment of COVID-19 Acute Respiratory Distress Syndrome (ARDS). This trial was to be conducted at Liverpool Hospital and involve 160 adult ICU patients with confirmed COVID-19 infection and ARDS ([15]).
STC3141 is a new medication designed by researchers at the Australian National University as a potential treatment for patients with ARDS ([16]). It is not intended to cure COVID-19, but to improve respiratory function in patients experiencing ARDS as a result of COVID-19 ([30]).
The Tribunal emphasised the “the public interest in conducting clinical trials to developing a greater understanding of this virus, its prevention and treatment” ([6]).
The Tribunal found that the clinical trial met the criteria in s 45AA of the Guardianship Act 1987, and thus exercised its discretion to approve the trial ([47]). It was satisfied that:
- STC3141 is intended to alleviate symptoms of COVID-19 ([32]);
- the clinical trial does not involve any substantial risk to patients ([35]);
- the drug has reached a stage at which safety and ethical considerations make it appropriate that it be made available to patients suffering from COVID-19 even though they are unable to consent to taking part in the trial ([41]); and
- on balance, it is in the best interests of patients who suffer from COVID-19 and meet the clinical trial criteria to be able to take part in the trial ([45]).
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| | 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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