NCAT Legal Bulletin Issue 4 of 2023 | 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 Court of Appeal of New South Wales, the Court of Appeal of Victoria, the Federal Court of Australia, and the New South Wales Supreme Court published in July and August 2023. | Gan v Xie [2023] NSWCA 163: The Court of Appeal upheld a challenge to the primary judge’s findings of fact and credit, where the primary judge rejected the evidence of witnesses as unreliable and without probative value because those witnesses only recalled the gist, rather than the exact words, spoken. The primary judge misused her advantage as trial judge and her findings were necessarily impugned. Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners – Strata Plan No 64807 [2023] NSWCA 188: The Court of Appeal granted leave to appeal but dismissed an appeal from a decision of the Appeal Panel. The Appeal Panel’s reliance on s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) to reopen a decision by issuing a second substantive decision was an immaterial error warranting a grant of leave to appeal. However, the Appeal Panel was correct to reopen its earlier decision where it had failed to deal with issues raised before it. That power fell within the broad procedural powers conferred on NCAT by s 38 of the NCAT Act. Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191: The Court of Appeal made a declaration 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 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. The Court otherwise dismissed the appeal. Norkin v University of New England [2023] NSWCA 194: The Court of Appeal refused leave to appeal from a decision of the Supreme Court, which had refused leave to appeal from the Appeal Panel. The Court held there was a direct relationship between the University’s lawful purpose of determining the likelihood of prospective students obtaining a student visa and the function or activity of teaching overseas students, such that the exception in s 8(1)(a) of the Privacy and Personal Information Protection Act 1998 (NSW) applied. Krongold Constructions (Aust) Pty Ltd v Thurin [2023] VSCA 191: The Victorian Court of Appeal determined that a referral of a matter by VCAT to the Supreme Court under s 77 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) invoked the Court’s jurisdiction, without the need for the filing of a fresh application. However, s 77 cannot give legal effect to an invalid exercise of federal judicial power. Where VCAT had invalidly joined parties to VCAT proceedings by an invalid exercise of judicial power, it could not make an incidental order to transfer a matter concerning those parties to the Supreme Court. Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020: The Federal Court held that a judge of the Circuit Court was not protected by the judicial immunity afforded to inferior court judges at common law and thus was liable to the applicant for the tort of false imprisonment. The distinction at common law between the judicial immunity of superior and inferior court judges has not been abolished – the scope of immunity of an inferior court judge is limited. Mourched v Chief Commissioner of State Revenue [2023] NSWSC 668: The Supreme Court dismissed an appeal from the Appeal Panel concerning a land tax assessment notice. The Court held that the Commissioner is able to assess the land tax payable on any parcel of land entered into the Register by the Valuer-General, even if it is less than a single lot of land. Further, the appellants had failed to satisfy the Tribunal at first instance that the land in the second lot was used solely for a septic system indispensable to childcare services provided in the first lot. Any appeal from this finding was on a question of fact, not law, and the Appeal Panel was correct to refuse leave in circumstances where the appellants adduced no further evidence to prove what the parcel was used for. Trustees of the Roman Catholic Church v NSW Department of Education [2023] NSWSC 800: The Supreme Court held that the issue of a new compliance notice after an internal review was amenable to a fresh internal review for the purpose of s 190 of the Children (Education and Care Services) National Law 2010 (NSW), in circumstances where the new notice particularised breaches in different terms and required entirely different steps to achieve compliance. Quader v Nguyen [2023] NSWSC 815: The Supreme Court dismissed a summons for leave to appeal as incompetent where the plaintiff was not a party to the Appeal Panel decision below. Merely claiming to be affected by the decision of the Appeal Panel does not give a non-party a right to appeal. Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940: The Supreme Court granted leave to appeal and allowed an appeal from the Appeal Panel. The Court found that the Appeal Panel had failed to provide any, or any adequate, statement of its reasoning process that led to its conclusions on the appeals, and thus had failed to comply with the requirements of s 62(3) of the Civil and Administrative Tribunal Act 2013 (NSW). The Court remitted the matter for determination.
| | | Soulis v R & A Henry Auto Repairs Pty Ltd [2023] HCASL 103 3 August 2023 - Gordon and Steward JJ In sum: The High Court refused to grant an extension of time and dismissed an application for special leave to appeal from a decision of the Court of Appeal, which refused an application for leave to appeal from a decision of the Supreme Court, which had summarily dismissed an application for leave to appeal from a decision of the Appeal Panel. There was no arguable ground of appeal, and any appeal would have no prospects of success. | Court of Appeal of New South Wales | Gan v Xie [2023] NSWCA 163 17 July 2023 - White JA, Simpson and Basten AJJA In sum: Witnesses are not required to recount the exact words alleged to be said by a party. Where a witness only professes a recollection of the substance or gist of what was said, the witness’ evidence is not to be rejected as unreliable and without probative value solely for that reason. The Court of Appeal found that the primary judge palpably misused her advantage as a trial judge; the primary judge’s treatment of evidence and credit findings necessitated a new trial. Facts: The appellant (Ms Gan) alleged that she was induced to invest approximately $305,150 in a platform called MFC in 2016, following a series of misrepresentations made to her by the respondent (Ms Xie), said to have been made orally at a meeting on 29 August 2016. Shortly after Ms Gan’s investment in the scheme, MFC collapsed. Ms Gan brought proceedings against Ms Xie asserting that MFC was a pyramid scheme within the meaning of s 45(1) of the Australian Consumer Law (ACL), that Ms Xie had participated in a pyramid scheme in contravention of s 44(1) of the ACL by making the alleged misrepresentations, and seeking damages under s 236 of the ACL. At the hearing, Ms Gan sought to lead tendency evidence from other investors in MFC, who deposed to similar misrepresentations made to them by Ms Xie. The primary judge refused to admit the tendency evidence, finding that the inability of those witnesses to recall the exact words spoken to them undermined the reliability and probative value of their evidence. The primary judge dismissed the claim, finding that none of the representations alleged had been made by Ms Xie and that Ms Gan was an unreliable witness. Held (allowing the appeal): (i) Whilst the primary judge enjoyed an advantage in assessing the credibility of the witnesses, the Court of Appeal determined to set aside the primary judge’s credit findings which were adverse to Ms Gan. This was a result of the primary judge’s palpable misuse of her advantage as trial judge, rather than an instance where the primary judge’s conclusions were contrary to incontrovertible facts, uncontested evidence or compelling inferences (at [24]). (ii) The Court of Appeal held that the primary judge erred in requiring that she be satisfied that the two investors and Ms Gan recalled the words spoken by Ms Xie, rather than the gist of what she conveyed. The primary judge had rejected their evidence on the basis that they had no separate and specific recollection of exact words said by Ms Xie in specified conversations and so found that their evidence was unreliable and had no probative value. It does not follow that because a person only remembers the gist of a what was said that their account must be rejected. The Court agreed with Jackman J’s observations on this issue in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [223] FCA 381 at [121]-[129]. The Court found that the primary judge had not engaged with whether Ms Gan and the two investors should be accepted as accurately recounting the gist, rather than the actual words, of Ms Xie (at [25], [118]-[122]). (iii) Ms Gan’s successful challenge to the primary judge’s credit findings that were adverse to her necessarily impugned the reliability of the primary judge’s findings that none of the representations were made by Ms Xie and as to lack of reliance. Further, the two investors’ evidence, if accepted, made it more probable that Ms Xie made the alleged representations to Ms Gan, which is relevant to an assessment of Ms Gan’s credibility. The Court of Appeal set aside the judgment and orders of the primary judge and remitted the matter to the District Court, differently constituted (at [21], [124]-[125]). (iv) The two investors deposed to being fluent in both English and Mandarin. Their affidavits were in English and deposed to the effect of the words spoken to them by Ms Xie in Mandarin. The primary judge rejected those affidavits and subsequent affidavits because the two investors did not depose to the words said in Mandarin with those words translated by an accredited translator. The Court of Appeal held that there was no proper reason for the primary judge to have rejected the first affidavits where the two investors were fluent in English. Whilst an accredited translation is preferred where witnesses claim to recall the actual words spoken (agreeing with Emmett AJA in Szeto v Situ (No 2) [2019] NSWSC 1312 at [8]), the two investors did not purport to recall the exact words said (at [83]-[93], [96]-[99]). | Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners – Strata Plan No 64807 [2023] NSWCA 188 14 August 2023 - Meagher and Stern JJA, Basten AJA In sum: The Appeal Panel’s second decision did not purport to alter its first decision – it was a new decision involving the determination of grounds of appeal going to jurisdiction which had not been addressed in the first decision. Basten AJA (Meagher JA agreeing) noted a number of factors which suggest that s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) should not be treated as wide enough to permit reopening a decision to address substantive issues not previously addressed, and distinguished the provision’s operation from r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW). Section 63 provides for the Tribunal to direct the Registrar to alter the text of a statement of reasons; it is not consistent with a potential change to the outcome of a determination. Thus, the Appeal Panel was in error to the extent it considered it was exercising power under s 63 of the NCAT Act. However, there will be circumstances in which the Tribunal may reopen a decision, where it is satisfied that it has failed to address a real issue in the proceedings, to give effect to the guiding principle in s 36 of the NCAT Act. That power falls within the breadth of procedural powers conferred by s 38 of the NCAT Act. In the present case, the power to reopen was not only available, but the appropriate course. Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – powers of NCAT – correction under slip rule – proceedings remitted by Appeal Panel without considering fundamental jurisdictional issue – power to vary order and issue second decision LAND LAW – strata title – caretaker agreements – power to terminate – agreement entered into prior to statutory power to terminate – application by owners corporation to NCAT – power under Strata Schemes Management Act 2015 (NSW), s 72 to terminate agreement STATUTORY INTERPRETATION – amendment and repeal – caretaker agreement entered into in 2001 – effect of transitional provisions – whether transitional provision applying to one class of earlier agreements by implication excluded other agreements Held (granting leave to appeal; dismissing the appeal): (i) Link to the Court of Appeal’s case summary is here. | Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 17 August 2023 - Mitchelmore and Kirk JJA, Griffiths AJA In sum: NCAT does not exercise judicial power when determining claims under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) and so its jurisdiction is not restricted by the principle set out in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 where the proceedings are of a kind falling within ss 75-76 of the Constitution. Similarly, 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 and when damages are sought under s 55(2)(a), NCAT exercises judicial power, and the Burns v Corbett restriction will apply where the proceedings are of a kind falling within ss 75-76 of the Constitution. Facts: In various NCAT proceedings, the applicant (Ms Wojciechowska) sought review of decisions made on behalf of the Commissioner of the NSW Police Force and the Secretary of the Department of Communities and Justice. The proceedings involved applications to review reviewable decisions under s 80(a), (c), (d), (e), (f) and (i) of the GIPA Act (the GIPA Act claims) as well as applications alleging contravention of ss 8-14 and 16-18 of the PPIP Act, seeking damages pursuant to s 55(2)(a) of that Act (the PPIP Act claims). Ms Wojciechowska challenged NCAT’s jurisdiction in those proceedings by invoking Burns v Corbett, 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. Held (declaring that NCAT had and has no jurisdiction to determine the PIPP Act claims; otherwise dismissing the appeal): (i) Ms Wojciechowska’s argument that Burns v Corbett prevents State tribunals from exercising any power in a dispute that appears to fall within the matters in ss 75 and 76 of the Constitution was misconceived. The Court held that there are three core issues in determining if the Burns v Corbett restriction applies: (1) Is the proceeding of a kind potentially falling within ss 75-76 of the Constitution (e.g. because it is between residents of different States)? (2) If so, would resolution of the claim or dispute involve exercise of the judicial power of the Commonwealth? (3) If so, is the decision-maker a court in the relevant sense? The restriction will only apply where the first two questions are answered “yes”, and the third question is answered “no”. The respondents accepted that in this case, the answer to the first question was “yes” – as the dispute was between a State and a resident of another State (s 75(iv)) – and the answer to the third question was “no”. As a result, the Court was required to determine whether NCAT was exercising judicial power in purporting to determine the GIPA Act and PPIP Act claims (at [40], [42]-[43, [45], [49]). (ii) The impugned decisions in the GIPA Act claims were all decisions about whether or not to allow access to information held by agencies or persons operating as part of the State. The functions exercised by NCAT are aspects of governmental administration and NCAT is bound to give effect to relevant government policy; the criteria applied are, to a significant extent, bureaucratic or evaluative, being factual assessments. To the extent that some consideration of legal criteria is required, this is a common feature of administrative schemes and is not inherently judicial. Giving effect to statutory information access regimes is not traditionally a task undertaken by courts. These factors point strongly towards characterising NCAT’s decision-making functions as involving the exercise of non-judicial power (at [71]-[87]). (iii) Regarding NCAT’s nature and processes in considering the GIPA Act (and also PPIP Act) claims, it was relevant that the functions under the GIPA Act (and PPIP Act) had been given to a non-judicial body. This was significant but not determinative. Further, NCAT is not bound by the rules of evidence in the relevant proceedings and is required to act with as little formality as the circumstances of the case permit. The Court noted that some aspects of NCAT processes overlap with judicial processes. However, the Court stated that the most pertinent factor is that decision-makers in NCAT largely do not need to be lawyers – this was “far from determinative” but militates in favour of characterising the process and exercise of power as administrative (at [89]-[96], [135]). (iv) The outcome of the Tribunal’s decision in the GIPA Act claims is, at most, a decision varying or substituting the decision of the administrator, where the Tribunal’s decision is treated as a decision of the administrator and the burden of the decision falls on the administrator. Such characteristics point strongly towards a non-judicial characterisation. Alongside the nature of NCAT’s decision-making functions and its processes, which also point strongly to involving the exercise of non-judicial power, the Court held that none of the impugned functions in the GIPA Act claims involved an exercise of judicial power (at [97]-[104], [105]). (v) The Court found many features in its consideration of the nature of the decision-making functions exercised by NCAT in the PPIP Act claims that similarly pointed to the exercise of non-judicial power. The PPIP Act scheme operates as a form of governmental administration and the criteria involved – particularly the information protection principles – are evaluative and administrative in nature. Further, the rights at issue are not independent, pre-existing rights and enforcement of PPIP Act norms is not historically exercised in courts. NCAT’s remedies under the PPIP Act, other than s 55(2)(a), are of a kind that may be exercised by an administrative decision-maker. However, the power in s 55(2)(a), which provides for an order requiring an agency to pay damages, is of a kind characteristically exercised by the courts and points to the exercise of that power as judicial (at [122]-[134]). (vi) When NCAT makes orders under s 55(2), it does not stand in the shoes of the decision-maker. Instead, NCAT makes orders directed to the agency. More significantly, an order made under s 55(2)(a) is for the payment of money. Under s 78 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), such an order can be certified by the Registrar, then filed in the registry of a court, after which the certificate operates and is enforceable as a judgment of the relevant court. The effect of s 78 of the NCAT Act on an order under s 55(2)(a) of the PPIP Act means that NCAT exercises judicial power if and when such an order is sought. Where the claim otherwise is of a kind that falls within federal jurisdiction, the matter will be outside NCAT’s jurisdiction. Section 78 of the NCAT Act otherwise does not apply to other orders made under s 55(2) of the PPIP Act and this conclusion only arises so far as relief is sought under s 55(2)(a) (at [136]-[144]). | Norkin v University of New England [2023] NSWCA 194 22 August 2023 - Leeming JA, Basten and Griffiths AJJA In sum: In determining whether the exception under s 8(1)(a) of the Privacy and Personal Information Protection Act 1998 (NSW) applies, it is necessary to determine: (1) whether there is a lawful purpose for which the collection is occurring directly related to a function or activity, and (2) whether the collection is reasonably necessary for that purpose. The purpose is the end, objective or goal in furtherance of which the information is collection; there may be more than one purpose. The function or activity is something that the agency does. Function and purpose must not be conflated, and the relationship between the two must be direct, as opposed to indirect, tangential or incidental. Whether the relationship is direct will turn on the size and nature of the agency and the purpose of the collection. The general rule, as set out in Taikato v The Queen (1996) 186 CLR 454 at 460; [1996] HCA 28, provides that “lawful purpose” should not be construed as requiring express authorisation by primary or secondary legislation; it is sufficient if it is not forbidden by law. Such a construction aligns with a body of NCAT decisions. Catchwords: HUMAN RIGHTS – Privacy and Personal Information Protection Act 1998 (NSW) – personal information collected by university – application for postgraduate study by overseas student – university participated in Simplified Student Visa Framework – whether university collected personal information on behalf of Commonwealth – whether university collected personal information in order to form a view on likelihood of applicant being granted a student visa – whether direct relationship between lawful purpose of collecting personal information and one of university’s functions or activities – whether lawful purpose required express authorisation or merely meant something not prohibited APPEALS – leave to appeal – where decisions favourable to university in NCAT and in the Supreme Court were based on a misapprehension of facts – where that misapprehension not corrected by university until hearing in Court of Appeal – where concurrent hearing granted on basis of misapprehension – significance of misapprehension of facts for grant of leave and making of special costs orders Held (refusing leave to appeal): (i) Link to the Court of Appeal’s case summary is here. | Federal Court of Australia | Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 30 August 2023 - Wigney J In sum: The applicant had made out his case for false imprisonment against the first respondent (Judge), where the order imprisoning the applicant for contempt was infected by a number of serious and fundamental errors, the cumulative effect of which was that the order was invalid and of no legal effect from the outset. The Federal Court held that the Judge was not protected by the judicial immunity afforded to inferior court judges (being a judge of the Circuit Court) at common law and noted that he was also not protected by any statutory immunity. The Court, tracing the line of authority, held that no Australian case had authoritatively determined that the distinction at common law between the judicial immunity of superior and inferior court judges had been abolished. A superior court judge is not liable for anything done while acting judicially – generally taken to mean when acting bona fide in the exercise of his or her office and under the belief that he or she has jurisdiction, even though that belief may be mistaken. The scope of judicial immunity afforded to inferior court judges is more limited. When the Judge imprisoned the applicant, the gross and obvious irregularity of procedure that infected the Judge’s purported exercise of contempt powers meant that he acted without or in excess of jurisdiction. Whilst the order may have been made on the basis of a mistaken belief, the Judge had the means to ascertain and should have been aware that there had not been any finding that the applicant was in contempt. The Judge was also guilty of a gross denial of procedural fairness and breaching the rules of natural justice. As a result, the Judge was liable in respect of the tort of false imprisonment. Note: A member of NCAT, in the exercise of functions performed as a member, has the same protection and immunities as a Judge of the Supreme Court: Civil and Administrative Tribunal Act 2013 (NSW), Sch 2, cl 4. Catchwords: TORTS – false imprisonment – where applicant imprisoned for contempt in matrimonial proceeding in Federal Circuit Court of Australia for purported non-compliance with disclosure orders – where judge’s contempt declaration and imprisonment orders were set aside for invalidity – consideration of whether imprisonment order was valid until set aside and provided lawful justification for imprisonment – consideration of whether the judge exercised superior court powers to punish for contempt which meant orders remained valid until set aside – found that judge’s orders, being of an inferior court and vitiated by jurisdictional error, were void ab initio and of no legal effect – found that no lawful justification for imprisonment TORTS – collateral abuse of process – whether the judge had an improper purpose or motive to coerce settlement of matrimonial proceeding – found it was not established that the judge’s purpose in making the contempt declaration and imprisonment order was other than to punish for non-compliance with court order – found that it was not established that the judge’s predominant purpose was “improper” – found that tort not made out TORTS – judicial immunity – whether common law judicial immunity protected inferior court judge from liability for tort of false imprisonment – consideration of scope of common law judicial immunity afforded to inferior court judges – consideration of circumstances where inferior court judges may lose that immunity – consideration of whether common law distinction between immunity of superior and inferior court judges remains in place – where judge made orders for which there was no proper foundation in law and was guilty of a gross irregularity of procedure and denial of procedural fairness – found that the judge lost the protection of judicial immunity afforded to inferior court judges because he acted without or in excess of jurisdiction Held (finding that the Judge was not immune from the suit on the basis of his status as an inferior court judge): (i) Link to the Federal Court’s case summary is here. | Supreme Court of New South Wales | Mourched v Chief Commissioner of State Revenue [2023] NSWSC 668 7 July 2023 - Davies J In sum: The Appeal Panel did not err in determining that land in a parcel of a lot could be separately assessed from another parcel in a lot under the Land Tax Management Act 1956 (NSW) (LTMA). Land tax may be assessed on, and exemptions may be applied to, a parcel of land contained in the Valuer-General’s Register even though it is less than a single lot of land. The Court held that if it was established that Parcel B was used solely for a septic system (which was said to be indispensable to the operation of the childcare centre on Parcel A), then the exemption under s 10(1)(u) of the LTMA would apply because of its connection with the building on Parcel A. However, the Court held that the Appeal Panel was correct in refusing leave to appeal from the Tribunal’s finding at first instance that it was not satisfied that Parcel B was solely used as a “place where children are educated or cared for”. This was a question of fact, not law, and the appellants only had a right to appeal on a question of law. Catchwords: TAXES AND DUTIES – land tax – appeals – appeal against land tax assessment notice – exemption under Land Tax Management Act 1956 (NSW) – plaintiff operates approved education and care service – land divided into two parcels of the one registered lot – childcare centre situated on one parcel of land and septic system situated on second parcel of land – whether second parcel of land containing ancillary services necessary for the operation of the land being exempted is also entitled to land tax exemption – whether commissioner entitled to assess individual parcels as designated by Valuer-General – whether septic system was the sole use of the parcel of land is a question of fact – question of fact not appellable – appeal dismissed STATUTORY INTERPRETATION – definitions – Interpretation Act 1987 (NSW) s 21 – “land” – whether same word has the same meaning in different parts of an Act APPEALS – right of appeal – scope of right – error of law – leave to appeal – principles for grant of leave Held (dismissing the appeal): (i) Link to the Supreme Court’s case summary is here. | Zepinic v Attorney-General of NSW [2023] NSWSC 785 7 July 2023 - Harrison AsJ In sum: In circumstances where 2008 and 2010 proceedings had already been further litigated in NCAT and the Supreme Court, the Supreme Court found that the claims brought by the plaintiff were out of time and an abuse of process. In any event, the defendants were not liable for the claims brought. The Court dismissed the proceedings and noted that the Attorney General may consider bringing proceedings to declare the plaintiff vexatious. Catchwords: JUDICIAL REVIEW – Appeal from NCAT – reinstatement order – psychologist’s registration – abuse of process – summons dismissed | Trustees of the Roman Catholic Church v NSW Department of Education [2023] NSWSC 800 7 July 2023 - Fagan J In sum: Section 191(7)(b) of the Children (Education and Care Services) National Law 2010 (NSW) (National Law), which provides for “any other decision that the Regulatory Authority thinks appropriate”, requires a substantive source of power elsewhere in the National Law – it is not an unconstrained and free-standing source in itself. Where an internal review culminates in the issue of a new compliance notice in substantially altered terms, the source of that decision is to be regarded as a decision under s 177, and thus the decision is amenable to a fresh internal review. Facts: The plaintiff is an approved provider under the National Law; the Secretary of the Department of Education (Secretary) is the Regulatory Authority for the purposes of the National Law. In May 2022, authorised officers of the Secretary inspected centres operated by the plaintiff and subsequently a delegate of the Secretary issued a compliance notice under s 177 (2 June Decision). On 16 June 2022, the plaintiff applied for internal review. On 19 August 2022, the application for internal review was determined under s 191(2)(b) of the National Law by a second delegate who purported to confirm the original compliance notice but identified entirely different alleged failings of the plaintiff and directed entirely different “Steps to be taken” that she required the plaintiff to undertake to achieve compliance (19 August Decision). The plaintiff sought a declaration that the 19 August Decision was a reviewable decision for internal review for the purposes of s 190 of the National Law. Held (declaring that the decision was a reviewable decision for internal review): (i) The 19 August Decision, in particularising breaches in different terms and directing different steps for compliance went well beyond confirmation pursuant to s 191(7) of the National Law. Consequently, the decision was properly to be characterised as “any other decision that the Regulatory Authority thinks appropriate” pursuant to s 191(7)(b). The Court interpreted this provision to require a source of power in another enabling provision of the National Law, finding that s 191(7)(b) could not be a substantive source of power for the Regulatory Authority to unconstrainedly make any decision it elected to make. To find otherwise would attribute a free-standing source of unlimited power to s 191(7)(b) as the provision does not otherwise contain any words of restriction (at [39]-[40]). (ii) The scope and limits of “any other decision” must consequently be found in the substantive sources of power elsewhere in the National Law. The Court rejected the submission that the issue of a new compliance notice following internal review must be regarded as a decision made under s 191 and not under s 177 for the purposes of applying s 190(h) of the National Law. The 19 August Decision, being materially different to the 2 June Decision, represented a fresh exercise of power conferred by s 177(2) of the National Law, so fell within s 190(h) and thus was amenable to internal review under s 191 (at [40], [42]). (iii) The Court also rejected the notion that its construction could give rise to the “unpalatable”, “inconvenient, improbable or irrational” consequence that there could be a “potentially infinite” “chain of internal review applications”. In circumstances where what was effectively a new compliance notice was issued, no inconvenience or absurdity flowed from a construction of the National Law which permitted an application for internal review of that new notice. The construction acknowledges the plaintiff’s right to one internal review of the two distinct exercises of the s 177 power on 2 June and 19 August (at [43], [46]). | Quader v Nguyen [2023] NSWSC 815 10 July 2023 - Fagan J In sum: The right to appeal to the Supreme Court from a decision of the Appeal Panel under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) is not conferred on a party merely because he or she claims to be affected by the Appeal Panel’s decision. The proceedings were incompetent from inception because the plaintiff was not a party to the Appeal Panel decision. The material date from which an appeal must be commenced was the date that orders and oral reasons were given in the presence of the parties, rather than the subsequent date on which the same written orders were sent to the parties. Facts: On 10 December 2020, the defendant (landlord) entered into a lease of a property with the plaintiff’s (Mr Quader) two sons (the tenants) for a term of six months. On 16 July 2022, the landlord issued a termination notice under s 85 of the Residential Tenancies Act 2010 (NSW); the tenants did not vacate the property. The landlord commenced proceedings in NCAT seeking termination and possession orders, which the Tribunal made on 20 January 2023. The tenants appealed and on 28 March 2023, the Appeal Panel dismissed the appeal. Mr Quader had represented the tenants at first instance and before the Appeal Panel. Mr Quader filed a summons in the Supreme Court seeking leave to appeal. On 25 April 2023, the parties to the Supreme Court proceedings signed consent orders, the purported effect (amongst others) being Mr Quader had agreed on behalf of the tenants that they be allowed to remain in the property until 7 June, by which date the tenants would vacate. On 2 June 2023, Mr Quader filed a notice of motion that the consent orders be stayed and some of the consent orders set aside. Held (dismissing the appeal): (i) The Court found that the “material date”, for the purpose of filing a summons for leave to appeal within 28 days pursuant to r 50.12 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and s 84(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), was the date on which the Appeal Panel made its orders and delivered oral reasons in the presence of Mr Quader. That was the date on which the decision was “pronounced or given” (UCPR, r 50.2), rather than the day after, when the orders were communicated to the tenants in writing (at [10], [8]). (ii) The summons for leave to appeal was dismissed as incompetent. The right to appeal from an Appeal Panel decision is conferred by s 83 of the NCAT Act solely on the parties to the internal appeal. The right to appeal is not conferred on persons who merely claim to be affected by the Appeal Panel’s decision. The consent orders that had not already expired or ceased to have effect were also vacated. The consideration from Mr Quader in entering the consent orders was wholly ineffective because the orders could not be made with legal effect in proceedings that were incompetent from inception (at [24], [27], [28]-[30]). | Commissioner of Police v Ritson (“DVT”) (No 2) [2023] NSWSC 854 21 July 2023 - Dhanji J In sum: The Supreme Court granted leave to appeal but dismissed an appeal from an Appeal Panel decision, which had dismissed an appeal from the Tribunal’s orders in favour of the first defendant (Mr Ritson) in relation to his application to the plaintiff (Commissioner) seeking access to his personal information pursuant to the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). The Court held that the Commissioner had not been denied procedural fairness by the Tribunal and that the Appeal Panel did not err in dismissing the Commissioner’s claim to that effect. It was not open to the Commissioner to assume that her argument, limited to the question of “excessive delay”, would be accepted, and to then complain that things would have been done differently if not – it was forensically unwise to proceed on the basis that she would be successful in this regard. To the extent that the Commissioner intended to rely on any other argument, she had the opportunity to do so. The Tribunal was entitled to regard the Commissioner as an experienced litigant with an understanding of the adversarial process, and this impacted on what was required of the Tribunal. There was no denial of procedural fairness, independent from the question of whether s 60(1)(a) of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) applied to Mr Ritson’s requests under the PPIP Act. In any event, the Court also found that s 60(1)(a) of the GIPA Act is not picked up by s 20(5) of the PPIP Act and so was not available to the Commissioner. Catchwords: ADMINISTRATIVE LAW – Judicial review – appeal from NCAT Appeal Panel – requirement of leave – meaning of “on a question of law” – procedural fairness – whether Commissioner of Police denied procedural fairness by Appeal Panel – where plaintiff sought to narrow the scope of Tribunal’s jurisdiction – where it was not open to plaintiff to assume argument would be accepted by the Tribunal – nature of relationship between parties considered – no denial of procedural fairness – whether Tribunal had an obligation to supervise plaintiff’s consideration of the request for information – not for the Tribunal to positively satisfy itself that plaintiff had considered legislation – where ample time had elapsed – plaintiff had obligation to be familiar with obligations under legislation – plaintiff experienced in litigation – adequate reasons in refusing to allow fresh evidence on appeal – whether the failure to admit evidence on appeal so unreasonable or plainly unjust – content of reasons – reasons given were adequate – appeal dismissed STATUTORY INTERPRETATION – Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and Government Information (Public Access) Act 2009 (NSW) (GIPA Act) – whether 60(1)(a) of the GIPA Act is picked up by s 20(5) of the PPIP Act – whether s 60(1)(a) of the GIPA Act imposes a “condition or a limitation” – not picked up by the PPIP Act | Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 11 August 2023 - Wright J In sum: A statement of written reasons, even where there has been no request for reasons, must comply with the requirements set out in s 62(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The standard of adequacy for compliance with the matters set out in s 62(3) may depend on the function being performed, the power being exercised and the subject matter of the proceeding. There is an argument that in certain cases, the Appeal Panel will be held to the same standard of adequacy as a court. Facts: A dispute arose regarding home building work performed by the plaintiff (builder) for the defendants (owners). The builder and the owners made claims arising from a building contract and work done or not done. The Tribunal made a finding against the builder regarding variations but awarded outstanding payments, a finding that the owners lawfully terminated the contract, and a finding for the owners on their defects claim and claim for incomplete costs. The amount owed to the builder was set off against the sum awarded to the owners and the builder was ordered to pay $114,557.17 and the owners’ costs. The builder and the owners appealed. The Appeal Panel allowed the appeals, found that the Tribunal erred in its calculation of the sum to be paid to the owners, and ordered that the builder pay $178,965.59. The builder sought leave to appeal to the Supreme Court. Held (granting leave to appeal; allowing the appeal): (i) The builder appealed on the ground that the Appeal Panel failed to provide proper, or adequate, reasons as to why an invoice was deducted from the value of the completed work and excluded in any contract reconciliation. The builder argued that the Appeal Panel did not articulate why the owners’ submissions, which it accepted, were correct or to be preferred; did not articulate why the invoice could be used to establish the value of works carried out or why the value of works claimed in the invoice should be deducted; and did not address seeming inconsistencies with its findings and the findings of fact at first instance. The builder contended that these matters and necessary related findings should have been explained and justified by the Appeal Panel (at [6], [49]). (ii) The Court held that the Appeal Panel’s published decision constituted a “written statement of reasons … [which had] already been provided” within the meaning of s 62(2) of the NCAT Act and thus s 62(3) applied as the relevant requirements for the Appeal Panel’s reasons. Regarding the standard for compliance with s 62(3) of the NCAT Act, the Court noted that the standard may vary depending on the function being performed, the power being exercised and the subject matter of the proceeding. The Court, distinguishing between the Appeal Panel and the Tribunal at first instance, commented that it may be appropriate for the Appeal Panel to be held to a higher standard of “adequacy” than that which might apply to the Tribunal. Such a standard may be that required of a court in matters such as this: an exercise of internal appeal jurisdiction relating to a claim under the Home Building Act 1989 (NSW) up to a value of $500,000 and where the legislature has provided for the Tribunal to be primarily responsible for such claims (at [58]-[59], [60]-[61], [62]). (iii) It was open to the Appeal Panel to accept and incorporate reference to the owners’ submissions regarding the award for completion costs, but it was required to make clear what was accepted and explain why the builder’s case was rejected – the Appeal Panel failed to do so. There is a potential for confusion where the identification of relevant reasons and calculations in the owners’ submissions is left to the reader rather than being stated in the Appeal Panel’s reasons. Further, for readers without access to those submissions, there is no way to know what submissions, reasons or calculations the Appeal Panel purported to adopt. The Appeal Panel failed to provide any statement of its relevant reasoning process in adopting the owners’ submissions and calculations and its reasons did not amount to an adequate statement of the reasoning process as required by s 62(3) of the NCAT Act. The Court also identified other unexplained and apparently incongruous conclusions and was satisfied that the Appeal Panel failed to provide any, or any adequate, statement of its reasoning process that led to its conclusions as to the appeals (at [66], [71], [72], [85]-[86]). (iv) The Court granted leave to appeal on the basis that there was an injustice which was reasonably clear, arising from the substantial basis for a conclusion that the Appeal Panel’s decision could not be justified by reference to either its reasoning or the unchallenged findings of fact at first instance. The Appeal Panel’s failure to provide reasons in compliance with s 62(3) of the NCAT Act effectively precluded the Court from considering the builder’s other two grounds of appeal, which also led to an injustice which was reasonably clear. The Court set aside the Appeal Panel’s decision and remitted the matter for consideration by the Appeal Panel (at [89], [91]). | | 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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