NCAT Legal Bulletin Issue 4 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, the Supreme Court of New South Wales and the Supreme Court of Victoria published in July and August 2024. | | Reimers v Medical Board of Australia [2024] NSWCA 164: The Court of Appeal dismissed an appeal from a decision of the Occupational Division of NCAT which refused Dr Reimers’ application for reinstatement of his registration as a specialist anaesthetist. Dr Reimers appealed on five grounds, and the Court of Appeal found in his favour on ground 2, finding that NCAT erred by conflating “suitability” for practice with whether the applicant was a “fit and proper person” to be registered to practise. Despite this finding, the Court of Appeal found NCAT’s decision was still justified in light of the finding that Dr Reimers was unable to practise competently and safely.
| Medical Council of New South Wales v Mooney [2024] NSWCA 180: The Court of Appeal dismissed an appeal from a decision of NCAT’s Occupational Division, which made a reinstatement order in favour of the respondent, subject to conditions being placed on his registration. The Court of Appeal held that it was open to NCAT to treat Mr Mooney’s dishonesty concerning the events of his arrest as significantly different from, and less blameworthy than, his premediated and sustained misleading conduct which led to his deregistration. Further, the Court also held that NCAT had made no error in considering the evidence of certain medical practitioners whom Mr Mooney misled, because NCAT deployed the evidence in a limited way. Critically, the Court of Appeal also discussed the importance of precision in setting out grounds of appeal. Whilst the appellant purported to appeal as of right on a question of law, several grounds raised failed to be framed as questions of law.
| Julie (a pseudonym) v John (a pseudonym) [2024] NSWSC 964: The Supreme Court allowed an appeal which originated in NCAT regarding a financial management order (FMO) made in respect of an elderly woman. The Supreme Court found that NCAT had failed to consider, form and express an opinion regarding the standing of the respondent who had applied for the FMO. Once the standing issue had been raised in NCAT, NCAT was obliged to address the matter and make a finding, that finding being the “gateway” to NCAT possessing the power to make a FMO.
| Dr N Kalokerinos Pty Ltd v Jain [2024] NSWSC 1069: The Supreme Court dismissed an appeal and allowed a cross-appeal from a decision which originated in the Consumer and Commercial Division of NCAT. The Supreme Court found that the Appeal Panel had correctly understood the terms of the Retail and Other Commercial Leases (COVID-19) Regulation 2021 (2021 Regulation) which imposed an obligation on a lessee to provide certain information to a lessor, but only in circumstances where the lessor had specifically requested it. However, the Supreme Court found the Appeal Panel erred in making an order for the cost of making good damage to tiles in the restaurant kitchen in circumstances where there was no obligation to make such repairs as the kitchen did not form part of the common property under the lease agreement.
| Rahman v Zeaiter [2024] NSWSC 1082: The Supreme Court refused leave to appeal from a decision of the Consumer and Commercial Division of NCAT, and dismissed a summons regarding a termination of a residential tenancy agreement finding there was no error made by NCAT. An Appeal Panel of NCAT had refused to grant an extension of time to appeal in circumstances where the tenant had no reasonable prospects of success. The Supreme Court found the tenant had failed to demonstrate something more than that NCAT was arguably wrong.
| Shapkin v The University of Sydney [2024] NSWSC 1091: The Supreme Court granted leave to appeal on several grounds, but ultimately dismissed the appeal, holding that the appellant had failed to demonstrate an Appeal Panel of NCAT had made any error of law. The Appeal Panel had agreed with the decision made by NCAT at first instance that Mr Shapkin’s agreement with the University was one under which he was a lodger for the purposes of s 8(1)(c) of the Residential Tenancies Act 2010 (NSW) (RTA), and that the agreement between Mr Shapkin and the University was exempt from the RTA by virtue of reg 31 of the Residential Tenancies Regulation 2019 (NSW).
| An & Ors v Australian Broadcasting Corporation [2024] VSC 518: The Victorian Civil and Administrative Tribunal (VCAT) referred several questions to the Victorian Supreme Court including asking whether the ABC is ‘the Commonwealth’ for the purposes of s 75(iii) of the Commonwealth Constitution, and whether the mere raising of this question deprives VCAT of jurisdiction to hear the matter because determining jurisdiction involves a “matter” arising under the Commonwealth Constitution, or involving its interpretation. The Victorian Supreme Court held that the ABC is not the Commonwealth for the purposes of s 75(iii), and that the proceedings did not constitute a “matter” falling within federal jurisdiction.
| | | Productivity Partners Pty Ltd v Australian Competition and Consumer Commission; Wills v Australian Competition and Consumer Commission [2024] HCA 27 14 August 2024 - Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
In sum: The ACCC alleged that the appellants (the College, and Mr Wills who was the Chief Operating Officer of Site Group International Ltd (Site) which was the entity which owned the College) engaged in a system of conduct, or a pattern of behaviour, that was unconscionable in contravention of s 21 of the ACL. The relevant conduct involved the College changing its process for enrolment by removing controls which had previously ameliorated known risks of unwitting or unsuitable persons being enrolled at the date on which fees became claimable by the College from the Commonwealth in respect of enrolment. Students would thereby incur debts without receiving any corresponding benefit. The primary judge and a majority of the Full Court of the Federal Court on appeal found that the College had engaged in conduct which was unconscionable in contravention of s 21 and that Mr Wills, and through him, Site, were knowingly concerned in the College’s unconscionable conduct and also liable for that conduct. The High Court agreed, holding that the system of conduct engaged in by the College was, in all the circumstances, unconscionable in contravention of s 21. Further, Mr Wills was knowingly concerned in, or party to, the College's contravention, it having been proved that he knew the essential matters which together made up the conduct characterised as unconscionable and that he participated in that contravention. By reason of Mr Wills' knowledge and conduct being attributed to Site, Site was also knowingly concerned in the College's contravention.
Catchwords: Trade practices – Consumer protection – Unconscionable conduct – Where s 21 of Australian Consumer Law ("ACL") relevantly provided that persons must not, in trade or commerce, in connection with supply of services, "engage in conduct that is, in all the circumstances, unconscionable" – Where s 224(1) of ACL relevantly provided that Court may order person to pay pecuniary penalty when that person "knowingly concerned in, or party to, the contravention" of provisions including s 21 – Where Productivity Partners Pty Ltd ("College") offered vocational education and training ("VET") courses funded through Commonwealth loan program – Where College altered enrolment process to remove safeguards ameliorating known risks of unwitting or unsuitable persons becoming and remaining enrolled at date on which VET fees became claimable by College from Commonwealth – Where Mr Wills was Chief Operating Officer of parent company of College and, for part of relevant period, acting Chief Executive Officer of College – Whether College engaged in unconscionable conduct in contravention of s 21 of ACL – Whether Mr Wills knowingly concerned in or party to that contravention.
Words and phrases – "accessorial liability", "community expectations", "community standards", "conscience", "corporate systems liability", "ecclesiastical", "essential elements", "essential facts", "essential matters", "intentionally participated", "involved", "knowingly concerned", "moral obloquy", "normative standard", "offensive to conscience", "sharp practice", "societal norms of acceptable commercial behaviour", "unconscionable conduct", "values of Australian common law".
Competition and Consumer Act 2010 (Cth) – s 139B, Sch 2 (Australian Consumer Law), ss 21, 22, 224(1).
Held (dismissing the appeal): (i) Link to the High Court’s case summary is here. | Court of Appeal of New South Wales | Reimers v Medical Board of Australia [2024] NSWCA 164 10 July 2024 - Leeming and Kirk JA, Griffiths AJA
In sum: The appellant was registered as a specialist anaesthetist until has name was removed from the Register of Medical Practitioners in 2003 following proven complaints he had self-administered opioids. In particular, on one occasion, a patient died under his care when Mr Reimers had in the 24 hours prior to providing anaesthetic services, self-administered Pethidine and/or Fentanyl. He then misled a Medical Board Inquiry by stating he had taken certain drugs orally rather than by injection, and he was subsequently suspended from medical practice and found guilty of professional misconduct. In 2018, NCAT reinstated Dr Reimers’ general registration. In 2023, he also sought reinstatement of his specialist registration for anaesthesia which was refused by the Medical Board on the basis that, pursuant to s 55(1)(h)(i) and (ii) of the Health Practitioner Regulation National Law 2009 (NSW) (the National Law), the appellant was not a “fit and proper person” and was unable to practise “competently and safely”. This meant that Dr Reimers was not a “suitable person” for registration under s 55, and therefore not an “eligible person” for specialist registration by force of s 57(1)(c) of the National Law. The appellant then appealed from that decision on five grounds.
The second ground alleged that NCAT erred by eliding “suitability” for practice (which is determined by the joint operation of ss 55 and 60) and whether the applicant was a “fit and proper person” to be registered to practise (which refers only to the question posed by s 55(h)(i)). The Court of Appeal held that this ground was made out as NCAT had failed to distinguish “suitable person” and its subset notion of “fit and proper person” (at [73]-[77]). Whilst NCAT’s reasons conflated those two concepts explicitly and repeatedly, the Court of Appeal found that the decision was justified on an independent basis in that Dr Reimers was unable to practise competently and safely. All other grounds of appeal were dismissed.
Catchwords: PROFESSIONS AND TRADES – health practitioners – registration as specialist – practitioner formerly practised as specialist anaesthetist – practitioner deregistered following misconduct – practitioner subsequently registered as a medical practitioner – practitioner applied for specialist registration as an anaesthetist – Medical Board of Australia refused application – NCAT dismissed appeal – NCAT found applicant not a fit and proper person, and unable to practise as specialist anaesthetist competently and safely – whether material error of law in NCAT's decision – consideration of Health Practitioner Regulation National Law – consideration of Medical Board of Australia and NSW Board of Medical Board of Australia
Held (dismissing the appeal): (i) Link to the Court of Appeal’s case summary is here. | Medical Council of New South Wales v Mooney [2024] NSWCA 180 30 July 2024 - Leeming and Kirk JA, Price AJA
In sum: Mr Mooney (the respondent) was found guilty of professional misconduct by NCAT following deficiencies in the care and treatment of two patients, which resulted in their deaths, forming an inappropriate personal relationship with a patient, and misleading authorities. NCAT proceeded to make orders cancelling Mr Mooney’s registration as a medical practitioner and prohibiting him from having that order reviewed for 12 months. He subsequently sought review of those orders. In the period between his cancellation and the review hearing, Mr Mooney pleaded guilty to drug possession charges. In the review decision, NCAT found that Mr Mooney had attempted to mislead police during the events of his arrest and that he had been dishonest in his interactions with medical practitioners by not giving them an honest account of his arrest. However, NCAT held that it was appropriate to make a reinstatement order subject to conditions on Mr Mooney’s registration. The Medical Council appealed from that decision, finding issue with Mr Mooney’s subsequent conduct.
The Court of Appeal held that it was open to NCAT to treat Mr Mooney’s dishonesty concerning the events of his arrest as significantly different from, and less blameworthy than, the premediated and sustained misleading conduct which led to his deregistration. The Court also found that there was no error in NCAT taking into account the evidence of certain medical practitioners whom Mr Mooney had misled, because NCAT deployed it in a limited way. In those circumstances, it was open to NCAT to impose a reinstatement order subject to conditions.
Importantly, the Court of Appeal made various comments about the importance of “brevity and precision” in formulating grounds of appeal. Rule 51.18(1)(e) of the Uniform Civil Procedure Rules 2005 (NSW) requires a Notice of Appeal to state “briefly, but specifically, the grounds relied on in support of the appeal”. This appeal purported to be made as of right on a question of law, and yet the Medical Council raised grounds which failed to raise questions of law. For example, the Medical Council submitted there was a failure on behalf of NCAT to give less or no weight to some of the evidence and opinions, and failed to have regard to relevant considerations. None of the matters were mandatory considerations in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24; [1986] HCA 40 such that failing to have regard to them would not have vitiated the decision, therein amounting to a question of law. The Court stated the Medical Council’s Notice of Appeal fell short of the standards expected (at [86]-[98]).
Catchwords: PROFESSIONS AND TRADES – medical practitioners – application for reinstatement – deregistered medical practitioner applied for reinstatement order – NCAT made order – Medical Council appealed, purportedly as of right – appeal as of right confined to questions of law – notice of appeal failed to identify any questions of law – belated application for leave to appeal on other grounds – whether error of law in NCAT’s decision – whether any other error disclosed – appeal dismissed
Held (granting leave to appeal; dismissing the appeal): (i) Link to the Court of Appeal’s case summary is here. | Supreme Court of New South Wales | Julie (a pseudonym) v John (a pseudonym) [2024] NSWSC 964 9 August 2024 - Meek J
In sum: Where an application for a FMO is made under s 25I(1)(b) of the Guardianship Act 1987 (NSW), NCAT must be satisfied that the person applying has a genuine concern for the welfare of the person who is the subject of the application. Therefore, where this issue is raised and the specified state of satisfaction or opinion has not been achieved before jurisdiction is exercised, the necessary precondition to the exercise of that power (or jurisdictional fact) does not exist and the purported exercise of the power is unauthorised.
Facts: The Guardianship Division of NCAT made a FMO in respect of the affairs of the third defendant, an elderly woman (Olivia), pursuant to the provisions of Guardianship Act. NCAT considered that there was a need to appoint someone to manage Olivia’s affairs “to ensure that her resources are well managed and used for her welfare and benefit”. Julie (the appellant) and John (the respondent) are two of Olivia’s three children. John is estranged from both his mother and Julie. Julie contends that in making the FMO, NCAT erred in several respects, and appealed from that decision to the Supreme Court.
A FMO may be made by NCAT on the application of the NSW Trustee and Guardian or the person who is the subject of the application (Guardianship Act, ss 25I(1)(a)-(a1)). Relevantly, an application for a FMO may also be made by any person who, in the opinion of NCAT, has genuine concern for the welfare of the person who is the subject of the application (Guardianship Act, s 25I(1)(b)). Julie submits NCAT failed to consider the issue of whether John had a “genuine concern” for the welfare of Olivia and as such, failed to consider, form and express an opinion on the standing of John to bring the application for a FMO. She raised several other grounds of appeal including submitting that NCAT applied the wrong legal test.
Held (allowing the appeal; setting aside the orders): (i) What suffices to constitute a “genuine concern” for the purposes of the Guardianship Act does not appear to have been considered in detail in the Supreme Court. However, without considering any case law, ss 9(1)(d) and 25I(1)(b) require NCAT to make an assessment as to whether the applicant has (at the time of making the application) a concern (that is, as a state or mind or belief) and whether that concern in “genuine”. Consistent with Lindsay J in C v W [2015] NSWSC 1774, an applicant might hold a genuine concern for a person’s welfare, but this does not go as high as requiring the applicant to be “motivated by a desire to advance the welfare of the person” (at [161]-[162], [166]-[167]).
(ii) Where s 25I(1)(b) expressly states that NCAT must form an opinion that the applicant has a genuine concern for the “welfare of the person the subject of the application”, the power to make a FMO under s 25F(c) is thus expressly conditioned upon the formation of that opinion by NCAT, which constitutes a jurisdictional fact. Thus, where the specified state of satisfaction or opinion has not been achieved before jurisdiction is exercised, the purported exercise of the power is unauthorised. Here, NCAT was required to form an opinion as to whether John held a state of mind or belief of “concern” in relation to the welfare of Olivia, the nature of which was “genuine”. Once the standing issue had been raised, NCAT was obliged to address the matter and make a finding, that finding being the “gateway” to NCAT possessing the power to make a FMO (Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 62(3)). There is no suggestion that NCAT here expressly addressed standing as an issue, nor is it “inherent” from the reasons simply because NCAT proceeded to hear and decide the application in John’s favour. Had NCAT considered the question of John’s standing, the decision that was in fact made could have been different, thereby resulting in a material error. This error was sufficient to allow the appeal, but the Court nonetheless proceeded to consider the remaining grounds (at [168]-[169], [184], [190]-[193], [199]).
(iii) In determining Olivia’s capability to manage her affairs under s 25G(a) of the Guardianship Act, NCAT considered that, while Olivia is able to manage her “day to day” needs, “her formal role as Director of two companies and substantial assets must be taken into account in considering whether or not she is able to manage her own finances in her own best interests”. The Tribunal was ultimately not satisfied that Olivia was capable of “weighing complex information”. In making this finding, the Tribunal applied a test which was more onerous than what is required by s 25G(a). Applying a test of “weighing complex information” applied an inappropriately high threshold to the statement of the test in terms of whether Olivia is “reasonably able” to manage her own affairs “in a reasonably competent fashion”, in particular having regard to the support systems available to her (at [216], [236]-[238], [243]).
(iv) NCAT’s finding that Olivia was not capable of managing her own affairs also lacks an evident and intelligible justification (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]). Similarly, NCAT’s finding that it was in Olivia’s best interests for a FMO to be made also lacked an evident and intelligible justification (at [302]). In relation to the first finding, it appears NCAT equated Olivia’s apparent lack of knowledge of certain matters relating to her finances and the companies as a lack of capability on her part to understand and deal with such matters. However, as a matter of logic, there is no such equivalence. Over the last 50 years or so, almost all decisions in relation to the company have been made by people other than Olivia, and she has had little involvement in running the business. Further, NCAT failed to identify the kinds of decisions Olivia was called upon to make. NCAT could not properly draw conclusions about Olivia’s capability without focusing upon exactly what she was not capable of doing (at [254], [257]-[258]). | Dr N Kalokerinos Pty Ltd v Jain [2024] NSWSC 1069 23 August 2024 - Campbell J
In sum: The obligation which arises under cl 6A(1) of the Retail and Other Commercial Leases (COVID-19) Regulation 2021 (2021 Regulation) for impacted lessees to provide specific information to a lessor, including a statement to the effect that the lessee is an impacted lessee, is only crystallised when requested by the lessor. The lessee would then be required to provide the requested information in a reasonable time.
Facts: Mr Jain (the defendant) leased a commercial premises from the plaintiff (DNK) for use as a restaurant for a period which included when COVID-19 Regulations were in place. DNK terminated the lease relying on various breaches including the failure to promptly pay rent and evicted Mr Jain. Mr Jain commenced proceedings in the Consumer and Commercial Division of NCAT claiming relief under the Retail Leases Act 1994 (NSW) including a declaration that DNK’s termination was unlawful. DNK then filed its own application in NCAT claiming compensation for loss or damages. NCAT dismissed the proceedings initiated by Mr Jain, and ordered that Mr Jain pay DNK the sum of $60,025.34 plus interest, and that DNK is entitled to claim the bond and any accrued interest. NCAT did not consider that the 2021 Regulation was applicable to Mr Jain. Mr Jain appealed and an Appeal Panel of NCAT allowed the appeal in part, awarded nominal damages in favour of Mr Jain, and varied the award of damages in favour of DNK to $18,418.25. DNK sought leave to appeal that decision to the Supreme Court, submitting that the Appeal Panel erred in several respects, including in its construction of the 2021 Regulation. Mr Jain also cross-appealed raising several grounds, including that the assessment of damages had wrongly awarded $14,383.72 (of the total $18,418.25) in respect of the replacement of tiling in the kitchen.
Under the 2021 Regulation, a lessee was an “impacted lessee” if the lessee qualified or could have qualified for the specified forms of governmental relief, and revenue was below a specific threshold. Under cl 5, the 2021 Regulation “applies to the exercise or enforcement of rights under an impacted lease in relation to a prescribed breach of the lease occurring during the prescribed period”. An “impacted lease” is one to which an impacted lessee is a party, and a prescribed breach includes where there has been a failure to pay rent (cl 3).
Clause 3 of the 2021 Regulation defines “prescribed action” as taking action under the provisions of a commercial lease, seeking orders, or issuing proceedings for the purposes of those actions listed at (a)-(l) which includes evicting a lessee from premises or exercising a right of re-entry. Under cl 6C, a lessor was prohibited from taking prescribed action against an “impacted lessee” on the grounds of the prescribed breach unless mediation had occurred under the Retail Leases Act and, if the lessee had so requested, the lessor had to comply with a request for re-negotiation under cl 6D. Importantly, the lessor was taken to have complied with cl 6D, “if the impacted lessee does not comply with Clause 6A” (cl 6D(4)). Clause 6A states that an impacted lessee must provide specific information to the lessor including a statement to the effect that the lessee is an impacted lessee (cl 6A(1)).
DNK argued that a lessee had an affirmative obligation to comply with cl 6A(1) as a condition precedent to the operation of the beneficial provisions of cll 6B, 6C and 6D which were protective of the position of the lessee. Counsel for Mr Jain accepted than an impacted lessee had an affirmative duty to provide the information specific in cl 6A, but that the real question was when that duty was required to be performed.
Held (allowing the appeal; allowing the cross-appeal): (i) In relation to the contents of a statement under cl 6A, DNK was only entitled to a statement from Mr Jain about whether he was an impacted lessee, and evidence of that status would have called for nothing more than evidence that he received one of the specified COVID-19 benefits in accordance with cl 4. Importantly, DNK was not entitled to be provided with “financial documents”. Additionally, in relation to when the duty arising under cl 6A should be performed, NCAT at first instance misstated the effect of cl 6A(2) by stating that information must be provided “as soon as practicable after a prescribed breach occurs”. Mr Jain was entitled to a reasonable time to respond before DNK could initiate any prescribed action (at [33]).
(ii) The Appeal Panel correctly found that the operation of cll 6B and 6C which are protective of the position of the lessee was conditional upon an impacted lessee giving the lessor the information referred to in cl 6A(1). Whilst an impacted lessee has an obligation to make a statement indicating its status as an impacted lessee and providing evidence, that obligation is not enlivened unless the information is requested by the lessor. The lessee would then have an obligation to provide the information, and within a reasonable time. This aligns with the main purpose of the 2021 Regulation which is the protection of the interests of small to medium enterprises as well as with the definition of financial stress and hardship outlined in the National Code of Conduct (at [38]).
(iii) The Appeal Panel was in error when it found that NCAT at first instance constructively failed to exercise its jurisdiction. The Appeal Panel had found there was a failure to address an argument advanced by Mr Jain at the first instance hearing that the question of his status as an impacted lessee was not open because DNK had in substance admitted that Mr Jain was an impacted lessee. However, the substance of Mr Jain’s claim was that he was an impacted lessee rather than simply that DNK admitted as much. That was merely the evidence upon which he relied. Whilst this ground raises a question of law, it does not vitiate the Appeal Panel’s decision as it was not material to the Appeal Panel’s decision (at [40]-[46]).
(iv) The Appeal Panel did not err in treating the phrase “generally admits” in a points of defence filed in NCAT, in the same manner as an agreed fact under s 191 of the Evidence Act 1995 (NSW). Whilst acknowledging s 38(2) of the NCAT Act provides that NCAT is not bound by the rules of evidence, the Appeal Panel perceived a strong analogy between the admission by DNK and agreed facts under s 191 of the Evidence Act. Had NCAT intended that the effect of the points of claim and the points of defence being read together was to be taken as a statement of agreed facts for the purpose of s 191 of the Evidence Act, the statement would go too far and would involve an error of law. However, the Appeal Panel made no such error. After referring to s 38(2) of the NCAT Act, and stating the admissions should be dealt with in the same manner as an agreed fact within s 191, NCAT did not say they were agreed facts under that provision. The Appeal Panel based its approach squarely on s 38(1) under which it was entitled to determine its own procedure (at [58]-[63]).
(v) In relation to the cross-appeal, whilst there were inconsistencies in some of the Appeal Panel’s reasoning regarding the award of damages, there had not been a constructive failure to exercise jurisdiction because the final order was amply explained. However, the Appeal Panel did err in making an order for the cost of making good damage to tiles in the restaurant kitchen, where the obligation to repair the tiles could only have arisen under cl 7.2 and cl 18.7.1.4 of the lease agreement. These clauses did not apply because the kitchen was not part of the common property. Mr Jain was therefore successful on the cross-appeal. | Rahman v Zeaiter [2024] NSWSC 1082 26 August 2024 - Harrison AsJ
In sum: Mr Rahman (the tenant) entered into a tenancy agreement with the landlord, Mr Zeaiter, but did not move into the premises after contending the property was not suitable for occupation. The tenant alleges he had an agreement with the landlord’s agent to waive the payment of rent until the unit was at a standard suitable for occupation. The agent denied these allegations. The tenant initiated proceedings in the Consumer and Commercial Division of NCAT seeking compensation for the landlord’s alleged failure to keep the residential premises in a reasonable state of repair and also sought orders that the landlord perform repairs. The tenant then filed appeal proceedings out of time, and the Appeal Panel found the tenant had failed to establish any arguable case which would warrant an extension of time to appeal acknowledging that the tenant had frequently failed to pay rent and evidence of any agreement between the tenant and agent indicating the tenant was not required to pay rent was not accepted by the Appeal Panel. The Supreme Court then refused leave to appeal from the Appeal Panel’s decision, finding there was no error made. The tenant had failed to demonstrate something more than that NCAT was arguably wrong. | Shapkin v The University of Sydney [2024] NSWSC 1091 27 August 2024 - Campbell J
In sum: Where s 8(1)(c) of the RTA states that the RTA will not apply to “an agreement under which a person boards or lodges with another person”, the expression “lodges with another person” does not only denote an agreement under which a person resides in the house or other dwelling of another person who also resides in the dwelling. This would restrict agreements to which s 8(1)(c) of the RTA applies to agreements only made between natural persons in circumstances where the RTA has not excluded the application of s 8(d) of the Interpretation Act 1987 (NSW) which prescribes that a reference to a person can include a reference to a corporation.
Facts: Mr Shapkin (the applicant) resided in student accommodation at the University of Sydney (the University, the respondent). Following complaints regarding Mr Shapkin’s conduct, the University sent Mr Shapkin a letter proposing to terminate the residential agreement. Mr Shapkin commenced proceedings in the Consumer and Commercial Division of NCAT seeking declaratory relief under s 11 of the RTA. The central issue in NCAT at both first instance and before the Appeal Panel was whether the residential agreement he had entered into with the University was a residential tenancy agreement to which the provisions of the RTA applied. Separately, Mr Shapkin had also sought judicial review of both the first instance NCAT decision and the decision of the Appeal Panel. In relation to the judicial review proceedings, the Supreme Court made an order refusing to conduct the proceedings. A summons for leave to appeal from that decision was then filed by Mr Shapkin in the Court of Appeal which was subsequently dismissed.
The question of whether the RTA applied to the residential agreement turned on whether Mr Shapkin was a lodger. The RTA will not apply to “an agreement under which a person boards or lodges with another person” (RTA, s 8(1)(c)). A second issue concerned whether the premises were exempt from the RTA by force of cl 31 of the Residential Tenancies Regulation 2019 (NSW) (the RT Regulation). This turned on whether the premises were a “hall of residence for students of an educational institution”.
Held (dismissing the appeal): (i)An agreement under which a person lodges with another person may well, but for its exclusion under s 8(1)(c), meet the definition of a residential tenancy agreement in s 13 of the RTA. However, one has to consider the text, context and purpose of the legislation, including the purpose of excluding certain agreements. While the right to exclusive possession is not an essential characteristic of the statutory concept of a residential tenancy agreement, the consideration that the right is wholly retained by the “landlord” is not an irrelevant consideration when characterising whether an agreement is one under which a person lodges with another person (at [41]).
(ii) The expression “lodges with another person” does not only mean an agreement under which a person resides in the house or other dwelling of another person who also resides in the dwelling. This would restrict agreements to which s 8(1)(c) of the RTA applies to agreements only made between natural persons. Such a restriction would fail to recognise that s 8(d) of the Interpretation Act 1987 (NSW) prescribes that a reference to a person does not exclude a reference to a corporation. Whilst the preposition “with” in the context of “an agreement under which a person … lodges with another person” is a word of connection or relationship, its meaning must be derived from its actual context. The Appeal Panel’s conclusion that the agreement was one under which Mr Shapkin was a lodger for the purposes of s 8(1)(c) was supported by the terms of the agreement. The Appeal Panel did not fall into error (at [42]-[43]).
(iii) Further, in addition to the grounds relating to s 8(1)(c) of the RTA, each of the grounds raised by Mr Shapkin relating to the construction of cl 31(1)(b) of the RT Regulation also fail to demonstrate any error of law. Ownership in cl 31(1)(b) of the RT Regulation relates to the right, title or interest of the University in the residential premises which is principally used as a hall of residence. At its simplest, the University acquired the residential premises by purchase in 1973, and Mr Shapkin’s submissions regarding the use of the premises are clearly and wholly erroneous. The premises provide for shared accommodation with some common areas, which no doubt would have provided an opportunity for communal living had the residents of the particular premises chosen to avail themselves of it. There was no error of law on the part of the Appeal Panel (at [44]-[50]). | Supreme Court of Victoria | An & Ors v Australian Broadcasting Corporation [2024] VSC 518 30 August 2024 - Harris J
In sum: The Australian Broadcasting Corporation (the ABC) is not ‘the Commonwealth or a person being sued on behalf of the Commonwealth’ for the purposes of s 75(iii) of the Constitution. In light of the nature of the activities undertaken by the ABC, considering the legal relationship between the ABC and the executive government, and giving particular emphasis to the provisions which limit the control which may be exercised by the Commonwealth executive over the ABC and its Board, these considerations have the effect that the ABC cannot be characterised as an entity through which the Commonwealth conducts its functions.
Facts: The applicants are practitioners of the religion known as Falun Gong or Falun Dafa. The applicants initiated proceedings in the VCAT alleging that several reports published by the ABC (the respondent) about Falun Gong breached s 8 of the Religious and Racial Tolerance Act 2001 (Vic). During the VCAT hearing, the ABC raised the question of whether it was ‘the Commonwealth’ for the purposes of s 75(iii) of the Commonwealth Constitution, such that VCAT would be deprived of jurisdiction to hear the matter. VCAT then referred questions of law to the Victorian Supreme Court by virtue of s 96 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) pertaining to the ABC’s characterisation as ‘the Commonwealth’ and whether the proceedings were nonetheless a “matter” within federal jurisdiction because they involved a matter arising under the Commonwealth Constitution, or involving its interpretation. The latter question requires consideration of whether, by reason only of the issue arising as to whether VCAT has jurisdiction, the entirety of the proceeding is to be regarded as a matter within federal jurisdiction.
Held (answering the questions referred by VCAT in the negative):
(i) The authorities are clear that the first question is to be determined by reference to the characteristics of the corporation as demonstrated by the legislation by which it was established. Additionally, it should be noted that the question of whether an entity is ‘the Commonwealth’ for the purposes of the Constitution is distinct from the question of whether it attracts privileges and immunities of the Crown in right of the Commonwealth so that any privilege or immunity under statute would not be determinative of the question. The consideration of whether a statutory corporation is ‘the Commonwealth’ involves considering firstly, the nature of the activities undertaken by the entity and whether they have a governmental character, and secondly, considering the legal relationship and control between the entity and the executive government (at [25]-[28]).
(ii) In light of these considerations, the ABC is not ‘the Commonwealth’ for the purposes of s 75(iii) of the Constitution. The functions of the ABC are outlined in s 6(1) of the Australian Broadcasting Corporation Act 1983 (Cth) (ABC Act) which sets out the ABC's Charter. It includes functions such as “broadcasting programs that contribute to a sense of national identity” and “encourage awareness of Australia and an international understanding of Australian attitudes on world affairs”. There is nothing in the nature of these services that makes them inherently governmental functions. Whilst the way in which some of the ABC’s functions are to be performed may distinguish them from activity undertaken in the private sector, identifying an entity as ‘the Commonwealth’ requires demonstration of more than a government policy of facilitating the creation of an entity to further some element of the public interest (at [36]-[44]).
(iii) Further, statutory provisions in the ABC Act as to the appointment of directors establish a significant degree of independence for the Board of the ABC from the Commonwealth executive. Employees of the ABC are not appointed as employees under the Public Service Act 1999 (Cth) and there is no provision for the ABC to be audited by the Auditor-General. The ABC also exercises a high degree of autonomy and independence in terms of the formulation of policy and decision-making. Additionally, the ABC is a ‘corporate Commonwealth entity’ for the purposes of the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act), and note 11 to the PGPA Act denotes that corporate Commonwealth entities are legally separate from the Commonwealth. However, it is important to recall that the reference to ‘the Commonwealth’ in s 75(iii) is wide enough to denote a corporation which is an agency or instrumentality of the Commonwealth. In determining whether an entity is ‘the Commonwealth’ for the purposes of s 75(iii), the fact of incorporation is inconclusive. What is more relevant is that the application of the PGPA Act to the ABC is qualified in material respects by the ABC Act (at [55]-[74]).
(iv) The entirety of the proceedings are not to be regarded as a matter falling within federal jurisdiction by reason only of the fact that determining whether VCAT has jurisdiction requires consideration and interpretation of the Commonwealth Constitution. Both parties referred to the Western Australia Court of Appeal decision in Hanssen Pty Ltd v Owners of Strata Plan 58161 [2024] WASCA 87 (Hanssen) which drew a distinction between the ‘substantive matter’ and the ‘jurisdictional matter’. The Court of Appeal concluded that the jurisdictional matter did not characterise the parties’ rights, duties liabilities at issue in the substantive matter, and they remained separate controversies, so that even when a jurisdictional issue involves a constitutional question, that will not be sufficient to characterise the substantive matter as a matter arising under the Constitution or involving its interpretation. The Court here was not persuaded that the decision in Hanssen was wrong, and held that the federal nature of the question to be resolved in determining the jurisdictional controversy does not have the effect of characterising the substantive controversy (at [102, [107]). | | 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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