NCAT Legal Bulletin Issue 5 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 Tasmania published in September, October and November 2024. | Capic v Ford Motor Company of Australia Pty Ltd ACN 004 116 223 [2024] HCA 39: The High Court allowed an appeal, and dismissed a cross-appeal which was heard immediately after the decision in Williams v Toyota Motor Corporation Australia Ltd [2024] HCA 38 (Williams). In that case, the High Court held that in assessing damages under s 272(1)(a) of the Australian Consumer Law (ACL), later acquired knowledge of a defect in the goods, including the effectiveness, cost, inconvenience and timing of any repair of the defect, is to be attributed to a hypothetical reasonable consumer with full knowledge of the "state and condition of the goods" at the time of supply. The reasoning of the Full Court of the Federal Court in its assessment of damages could not be sustained in light of Williams such that the assessment of damages was remitted to the primary judge to undertake that task in accordance with Williams.
| Tsolis v Health Care Complaints Commission [2024] NSWCA 284: The NSW Court of Appeal dismissed an appeal which sought to appeal from an order made in NCAT that the inquiry regarding the appellant’s conduct as a psychologist should be continued and a determination made by the remaining members of the Tribunal, in circumstances where one of the Members could no longer participate. The Court of Appeal found that where there have been findings of guilt, but orders remained outstanding, the inquiry generated by the complaint has not been completed, and so the power under s 165C of the Health Practitioner Regulation National Law 2009 (NSW) (National Law) was available.
| Owners Corporation SP6534 v Elkhouri; Owners Corporation SP6534 v Perpetual Corporate Trust Ltd [2024] NSWCA 279: The Court of Appeal substantially allowed an appeal, brought by the Owners Corporation, and in part allowed a cross-appeal brought by the first and second respondents. The Court of Appeal disagreed with the primary judge and found that a by-law passed by the Owners Corporation was not ‘unjust’. The by-law was limited in nature and scope, and there was nothing intrinsically unjust in granting a right only upon the satisfaction of certain reasonable conditions. In relation to the cross- appeal, it was necessary to identify defects and connect them with the costs or liabilities claimed by the Owners Corporation. The primary judge erred in upholding and quantifying the Owners Corporation’s economic claims without making the necessary findings.
| Dokas v Gallagher (No 2) [2024] NSWCA 236: The Court of Appeal dismissed a summons which sought to appeal from a decision by an Appeal Panel of NCAT which dismissed an appeal against an earlier NCAT decision. The summons also sought relief in the form of certiorari. The dispute related to the termination of a residential tenancy for non-payment of rent. The Court of Appeal was not satisfied that any question of law had been clearly identified, and were not satisfied that leave should be granted to appeal.
| Mai v Nguyen [2024] NSWCA 215: The Court of Appeal dismissed an appeal from a decision of the District Court which had dismissed the appellant’s claims that he was falsely imprisoned and assaulted by the respondent. Importantly, the Court found that the reasons given by the primary judge were adequate to discharge the judicial duty to give reasons despite not addressing some of the appellant’s evidence. It was relevant that the reasons were delivered promptly in an ex tempore judgment. Additionally, the Court reiterated that it has warned of the dangers of judges reasoning as though they have medical expertise which, however experienced they may be in litigation involving such matters, does not render them an expert.
| Crystele Designer Homes Pty Ltd v Wood [2024] NSWSC 1438: The Supreme Court dismissed a summons which sought leave to appeal from a decision of an Appeal Panel regarding a dispute which arose under the Home Building Act 1989 (NSW) (HBA). The dispute arose in respect of defects that did not constitute a ‘major defect’, and were purportedly made after the period stipulated by s 18E of the HBA. Alternatively, the plaintiff sought judicial review of the Appeal Panel decision. The Court held that any question of law raised should not succeed, and leave to appeal was refused on the remaining grounds, and the summons dismissed.
| Hawkins v Wimbledon 1963 Pty Ltd [2024] NSWSC 1465: The Supreme Court allowed an appeal from a decision which originated in NCAT regarding a dispute which arose in relation to a residential tenancy. The Court found that NCAT had made orders in excess of its power as the orders exceeded NCAT’s monetary limit of $15,000 as provided for in s 187 of the Residential Tenancies Act 2010 (NSW) and reg 40(b) of the Residential Tenancies Regulation 2019 (NSW).
| Makowska v St George Community Housing Limited [2024] NSWSC 1243: The Supreme Court dismissed a summons which sought leave to appeal from a decision which refused to make remediation orders and enforce a rent reduction. After NCAT at first instance dismissed Ms Makowska’s application, the Appeal Panel refused to grant an extension of time to Ms Makowska to appeal, finding that the matter lacked merit. Ms Makowska then appealed to the Supreme Court, which held that Ms Makowska failed to demonstrate any error of law nor provide any basis to grant leave to appeal.
| | | | Capic v Ford Motor Company of Australia Pty Ltd ACN 004 116 223 [2024] HCA 39 6 November 2024 - Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
In sum: The High Court allowed an appeal, and dismissed a cross-appeal from a judgment of the Full Court of the Federal Court regarding the proper construction of s 272(1)(a) of the Australian Consumer Law (ACL). The primary judge had found that vehicles with transmission issues were supplied in breach of the guarantee of “acceptable quality” under s 54(1) of the ACL. Section 271(1) of the ACL provides that if the guarantee under s 54 is not complied with, an affected person may recover damages from the manufacturer, and s 272(1)(a) provides that an affected person may recover damages for “any reduction in the value of the goods, resulting from the failure to comply with the guarantee to which the action relates”. The primary judge awarded the appellant damages under s 272(1)(a) but did not have regard to whether the adverse consequences of each defect materialised in the appellant’s vehicle or the fact that some of the defective components were replaced after the date of supply, as these factors were deemed irrelevant to assessing the value of the vehicle at the date of acquisition. The Full Court dismissed an appeal by the respondent, upheld a cross-appeal by the appellant and remitted the assessment of damages to be reassessed in accordance with Toyota Motor Corporation Australia v Williams (2023) 296 FCR 514. However, that case was later overturned by Williams v Toyota Motor Corporation Australia Ltd [2024] HCA 38 (Williams). Given the later decision, on appeal, the High Court held here that the reasoning of the Full Court could not be sustained. Consistent with Williams, the High Court held that in assessing damages under s 272(1)(a), later acquired knowledge of a defect in the goods, including the effectiveness, cost, inconvenience and timing of any repair of the defect, is to be attributed to a hypothetical reasonable consumer with full knowledge of the "state and condition of the goods" at the time of supply. The assessment of damages was again remitted to be undertaken in accordance with Williams.
Catchwords: Damages – Assessment – Consumer law – Where appellant brought representative proceedings against respondent on behalf of persons who acquired motor vehicles fitted with "DPS6" transmission – Where vehicles had at least one of five defects – Where primary judge concluded vehicles did not comply with guarantee of "acceptable quality" in s 54(1) of Australian Consumer Law ("ACL") at time of supply – Where s 271(1) of ACL provides that if guarantee under s 54 is not complied with, "an affected person in relation to the goods may . . . recover damages from the manufacturer" – Where s 272(1)(a) provides that "an affected person in relation to goods is entitled to recover damages for . . . any reduction in the value of the goods, resulting from the failure to comply with the guarantee to which the action relates" – Where primary judge assessed damages payable under s 272(1)(a) – Where primary judge did not consider whether adverse consequences of each defect materialised in appellant's vehicle and fact that some defective components were replaced after date of supply – Where Full Court of Federal Court of Australia followed decision of Full Court in Toyota Motor Corporation Australia Ltd v Williams (2023) 296 FCR 514 – Where Full Court held subsequent events were capable of bearing on assessment of damages under s 272(1)(a) and primary judge erred in not considering information known at time of trial and appellant's use of vehicle up until time of trial – Whether Full Court erred in finding that assessment of damages under s 272(1)(a) may require departure from time of supply or adjustment to avoid "over-compensation" – Whether Full Court erred in finding that assessment of damages under s 272(1)(a) required having regard to events after time of supply.
Words and phrases – "assessment of damages", "consumer", "damages", "defect", "guarantee of acceptable quality", "loss-based damages", "materialisation of risks", "over-compensation", "performance-based damages", "reduction in value", "repair", "state and condition of the goods", "time of supply", "time of trial".
Competition and Consumer Act 2010 (Cth) – Sch 2 (Australian Consumer Law), ss 54(1), 271(1), 272(1)(a), 272(1)(b).
Held (allowing the appeal): (i) Link to the High Court’s case summary is here. | Court of Appeal of New South Wales | Tsolis v Health Care Complaints Commission [2024] NSWCA 284 29 November 2024 - Leeming, Kirk and Stern JJA
In sum: In circumstances where a complaint has been referred to NCAT under the National Law, “inquiry” for the purposes of s 165C refers to the whole of the processes by which that complaint is adjudicated and resolved. Therefore, where there have been findings of guilt but orders remain outstanding, the inquiry generated by the complaint has not been completed, and the power under s 165C is available in the event of a vacancy.
Facts: Mr Tsolis, a psychologist, engaged in an inappropriate relationship with one of his patients. Following a complaint of this conduct, the respondent made an application initiating disciplinary proceedings in the Occupational Division of NCAT which proceeded to find Mr Tsolis guilty of unsatisfactory professional conduct and professional misconduct. The Tribunal was constituted by a legally-qualified senior member, two senior members who were psychologists, and one lay member, in accordance with s 165B of the National Law. Order 7 made by NCAT was that “[t]he matter be listed for directions in relation to the Stage 2 hearing and, if necessary, the redaction of these reasons”. Mr Tsolis then sought to appeal the decision which was dismissed by the Supreme Court. While that appeal was reserved, one of the psychologists who had been appointed as an “occasional member” of NCAT was appointed to the Psychology Council of NSW as a professional member. The view was taken that she should not continue to participate in the proceedings. There had not been a “Stage 2” hearing yet. Following an exchange of submissions, a Deputy President of NCAT made the order that the inquiry should be continued and a determination made by the remaining three members of the Tribunal as originally constituted. Mr Tsolis sought to appeal from that order here contending that the powers under s 165(1) of the National Law which would authorise the continuation and determination of the proceedings, were not available.
Section 165(1) states that: “If one of the members (other than the presiding member) constituting the Tribunal for the purpose of conducting a hearing under this Law vacates office for any reason before an inquiry or appeal is completed or a decision is made in respect of an inquiry or appeal, the inquiry or appeal may be continued and a determination made by the remaining members of the Tribunal.”
Mr Tsolis submitted that the “inquiry” for the purposes of s 165(1) was confined to either the five day hearing of the “Stage 1” proceedings, or alternatively the hearing and determination of that stage of the proceedings. A decision had been made in respect of that inquiry, namely the “Stage 1” determination. Accordingly, he submitted that none of the preconditions to the power conferred by s 165C(1) to continue an inquiry constituted by a legal member and two non-legal members, as opposed to the default of one legal member and three non-legal members, was made out.
Held (granting leave to appeal, dismissing the appeal): (i) An “inquiry” for the purposes of s 165C is the word used to denote dealing with a complaint. On its natural reading, the power in s 165 is available where a member other than the presiding member vacates office for any reason, either before an inquiry or appeal is completed, or before a decision is made “in respect” of an inquiry or appeal. However, it seems odd to regard an inquiry or appeal to have been “completed” if decisions are still to be made in respect of that inquiry or appeal. In order to answer what is encompassed by an “inquiry”, and in particular to consider when it will have been “completed”, it is necessary to turn to the provisions governing how NCAT deals with complaints, because it was the referral of a complaint to NCAT that gave rise to the occasion for the exercise of the power under s 165C. A consideration of these provisions suggests that a complaint which has been referred to NCAT gives rise to an inquiry which will not be completed until a decision has been made whether to impose any, and if so which, of the various sanctions available to NCAT (at [19], [24]-[27]).
(ii) The Court is to prefer a construction which promotes the purpose or object of the statute: National Law, Sch 7, cl 7. The purpose is to prevent the need to appoint a new non-legal member in the event of death, incapacity or any other vacation of position. That has benefits to the public, as well as to the health practitioner. That purpose would be frustrated were Mr Tsolis’ narrow construction adopted, and would be promoted by the construction propounded by the respondent (at [34].
(iii) After considering the text, context and purpose of the relevant provisions, the Court found that the Deputy President was correct, and that “inquiry” for the purposes of s 165C means, where a complaint has been referred to NCAT, the whole of the processes by which that complaint is adjudicated and resolved. Where as here there have been findings of guilt but orders remain outstanding, the inquiry generated by the complaint has not been completed, and the power under s 165C is available. | Owners Corporation SP6534 v Elkhouri; Owners Corporation SP6534 v Perpetual Corporate Trust Ltd [2024] NSWCA 279 27 November 2024 - Ward P; McHugh JA; Griffiths AJA
In sum: Mr Elkhouri was the was a lot owner in a strata title apartment building. The appellant was the owners corporation for that building. Mr Elkhouri and the Owners Corporation had various claims against each other, which were solved by a deed of settlement which stated the Owners Corporation could pass a by-law which would grant the owner of the relevant lot the right of exclusive use and enjoyment of certain parts of the common property. By par 30.3 of the by-law, the continuation of the exclusive rights after the sunset date was conditional on various matters, including the owner of the lot completing certain works in the exclusive use areas. Mr Elkhouri then passed away.
In proceedings in the Supreme Court, the primary judge declared that par 30.3 was “unjust” within the meaning of s 149(1)(c) of the Strata Schemes Management Act 2015 (NSW) (SSMA). The Owners Corporation appealed the declaration regarding par 30.3, and the executors of Mr Elkhouri’s estate (the first and second respondents) cross-appealed based on the primary judges findings that the Owners Corporation was entitled to various sums of money in damages.
The Court of Appeal substantially allowed the appeal, and in part allowed the cross-appeal, finding that the jurisdiction of the Supreme Court to make declarations is wide such that it had jurisdiction to declare that par 30.3 was unjust. However, the Court of Appeal held that par 30.3 was not unjust within the meaning of s 149(1)(c) of the SSMA. The grant of rights under by-law 30 was limited in nature and scope, and there was nothing intrinsically unjust in granting a right only upon the satisfaction of certain reasonable conditions. In relation to the cross-appeal, in order to establish the Owners Corporation’s entitlement to recovery under the provisions of par 30.7 on which it relied, it was necessary to identify defects and connect them with the costs or liabilities claimed. The primary judge erred in upholding and quantifying the Owners Corporation’s economic claims without making the necessary findings.
Catchwords: COURTS AND JUDGES – Supreme Court – Jurisdiction – Whether Supreme Court lacked jurisdiction to make declaration that condition of by-law unjust – Where statute conferred function of finding condition unjust on NSW Civil and Administrative Tribunal
LAND LAW – Strata title – By-laws – Whether condition of by-law that exclusive use rights cease unless obligations complied with unjust – Whether condition harsh, oppressive or unconscionable – Whether respondents liable in damages under by-law for failure to comply with obligations under by-law – Whether respondents liable for reasonable costs and expenses incurred in recovering outstanding levies – Whether respondents liable for costs and expenses incurred in claiming damages under by-law
Held (allowing the appeal, in part allowing the cross-appeal): (i) Link to the Court of Appeal’s case summary is here. | Dokas v Gallagher (No 2) [2024] NSWCA 236 25 September 2024 - Kirk JA; Griffiths AJA
In sum: A dispute arose under a residential tenancy agreement pursuant to which the tenants (the applicants) leased a property from the landlord (the respondent). After issuing a notice of termination for non-payment of rent, the landlord commenced proceedings in NCAT seeking orders for termination and possession on the basis of the rental arrears. The applicants then commenced separate proceedings in NCAT, which they subsequently withdrew, and the order recording the withdrawal was expressly stated to have been by consent.
NCAT made various orders at first instance, including an order terminating the residential tenancy agreement, and an order suspending the order for possession until a later date. The tenants then appealed that decision to an Appeal Panel of NCAT. The Appeal Panel granted the applicants leave with respect only to the issue of whether NCAT was in error in failing to conclude either that the rent increase or the rent itself was excessive so as to justify an order under s 44(1)(b) of the RTA. The Appeal Panel then dismissed the appeal on those matters. The Appeal Panel refused leave to appeal in respect of the other four issues raised by the applicants. The appeal was otherwise dismissed.
On appeal to the Court of Appeal, the Court was not satisfied that the applicants had clearly identified any question of law as required by s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), nor were they satisfied that leave to appeal should be granted. The Court of Appeal found that the applicants’ grievance was of a personal nature and did not give rise to any question of general importance. The Court was also not persuaded that leave should be granted to address any injustice arising from any error on the part of the Appeal Panel. There was also a very real question concerning the utility of the proceedings, in circumstances where the tenants were evicted more than a month ago. | Mai v Nguyen [2024] NSWCA 215 2 September 2024 - Mitchelmore and Kirk JJA; Griffiths AJA
In sum: The appellant, Mr Mai, claimed that the respondent, Ms Nguyen, falsely imprisoned him in one of the restaurants that he owned, and that she assaulted and battered him in that restaurant. His claims were dismissed by the District Court, and he proceeded to appeal with respect to the dismissal of the claims for assault and battery. The Court of Appeal dismissed the appeal, finding against the appellant on each of the eight grounds of appeal raised.
Importantly, in relation to ground 7 where the appellant alleged the primary judge failed to give adequate reasons for rejecting his claims, the Court of Appeal noted that it is relevant that the reasons were delivered promptly in an ex tempore judgment. In this context, the Court found the reasons were adequate to discharge the judicial duty to give reasons. However, the Court earlier noted in its consideration of grounds 1 and 2 that the primary judge should have addressed the fact that the assault claim was a distinct claim for a distinct tort. The Court found this error did not result in a substantial wrong or miscarriage and so was not considered a sufficient basis to order a retrial.
Additionally, the Court reiterated that it has warned of the dangers of judges reasoning as though they had medical expertise which, however experienced they may be in litigation involving such matters, does not render them an expert: Strinic v Singh (2009) 74 NSWLR 419; [2009] NSWCA 15 at [59]. Basing a conclusion on such a basis may constitute a breach of the requirements of procedural fairness: Strinic v Singh at [64]. That being said, finders of fact are entitled to bring some degree of practical judgment and the Court was not satisfied here that the primary judge’s assessment exceeded permissible bounds, despite his Honour rejecting the medical evidence. This was because he had based his assessment on, amongst other things, evidence provided by the Police.
Catchwords: APPEALS – Adequacy of reasons – Brief ex tempore reasons – Distinct claim in tort not addressed – No substantial wrong or miscarriage occurred due to failure to address – Appellant not deprived of possibility of successful outcome
APPEALS – From findings of fact – Finders of fact entitled to degree of practical judgment with respect to certain matters – Limits of judicial notice – No substantial wrong or miscarriage – Failure to address claimed tendency to violence – Not necessary in every case for judge to determine whether to accept version of events given by party not bearing the onus | Supreme Court of New South Wales | Crystele Designer Homes Pty Ltd v Wood [2024] NSWSC 1438 25 November 2024 - Rothman J
In sum: The Supreme Court dismissed a summons which sought leave to appeal from a decision of an NCAT Appeal Panel. The Appeal Panel had found that NCAT had jurisdiction to adjudicate a claim under the HBA in respect of defects that did not constitute a ‘major defect’, purportedly made after the period stipulated by s 18E of the HBA. Alternatively, the plaintiff sought judicial review of the Appeal Panel decision.
The Court found that there was no jurisdictional error on the part of NCAT either at first instance or on appeal. In dealing with the defects raised by the Points of Claim and not included in the initial Application, NCAT did not err, and it was found no question of law raised should succeed. Leave to appeal was refused on all remaining grounds, and the summons was dismissed.
Importantly, the Court accepted that there was one cause of action in relation to major defects, regardless of the number of defects that resulted or were claimed (at [107-[126]). In relation to extending the statutory time limit for a pleading or raising any non-major defects arising under the same cause of action, the Court found that s 41 of the NCAT Act confers the same power on NCAT as s 65 of the Civil Procedure Act 2005 (NSW) (at [129]-[130]). | Hawkins v Wimbledon 1963 Pty Ltd [2024] NSWSC 1465 19 November 2024 - Griffiths AJA
In sum: Where on an application to NCAT a landlord seeks an order for the payment of an amount of money representing rental arrears, the monetary limit of $15,000 applies to cap the total amount which NCAT can order for that particular claim in that particular application. Additionally, where NCAT consciously breaks down two separate orders so as to avoid exceeding the $15,000 limit, these orders will have been made beyond power.
Facts: A dispute around between Mr Hawkins (the appellant) and his landlord (the first defendant), which leased a residential property to him. The rent was in excess of $15,000 per month. Mr Hawkins fell behind in rent payments, and contended that the landlord was delinquent in remedying multiple defects. The landlord commenced proceedings in NCAT seeking possession of the property and payment of rental arrears. Mr Hawkins then lodged an application in NCAT seeking compensation in the amount of $45,000 (representing a 50% reduction of rent) having regard to identified defects with the property. He sought an order that the rent payable was excessive, as well as an order reducing the rent payable because the property was unusable, uninhabitable or destroyed. Mr Hawkins contends that this application, which he describes as an off-setting claim, remains to be heard and determined by NCAT. In contrast, the landlord contends that the application was disposed of as a result of consent orders made by NCAT. Mr Hawkins challenges whether the orders were made by consent. Mr Hawkins also challenged several orders made by NCAT alleging they were beyond NCAT’s jurisdiction as they were in an amount in excess of $15,000.
The landlord later obtained a certificate under s 78(1) of the NCAT Act in respect of NCAT money payment orders. This certificate was then filed with the registrar of the Local Court under s 78(3) of the NCAT Act. The Local Court gave judgment in the total amount of $47,911.02. Mr Hawkins filed a Notice of Motion in the Local Court seeking to have the Local Court Judgment set aside on the basis that there was no NCAT order in the amount of $47,709.02 and, even if there were, it would be ultra vires and unenforceable because it exceeded the $15,000 monetary limit. The Local Court Registrar dismissed Mr Hawkins’ Motion on the ground that the Local Court lacked jurisdiction.
Mr Hawkins now seeks to set aside the Local Court Judgment and several orders made by NCAT. The Court was satisfied that the orders were made with consent, but proceeded to consider the question of monetary limits.
Held (allowing the appeal): (i) The statutory limits of NCAT’s powers to make orders fall to be determined by an exercise of statutory construction. That task requires close consideration to be given to the text, context and purpose of the relevant provisions. Interpreting the terms of s 187 of the Residential Tenancies Act 2010 (RTA) attracts several difficulties, though these do not need to be resolved in these proceedings and there remains a need for the legislature to clarify these matters (at [74], [82], [107]-[108]).
(ii) Under s 187 and reg 40 of the Residential Tenancies Regulation 2019, the monetary limit “of jurisdiction” of NCAT to make orders in proceedings under the RTA is $15,000 (except for orders with respect of a rental bond, which is $30,000). Unlike the position in some other jurisdictions, the monetary limits on NCAT’s jurisdiction apply to the orders which NCAT is empowered to make, as opposed to an application, which seeks NCAT to make one or more orders. Accordingly, an application which on its face seeks orders in excess of the monetary limit, would not itself be invalid (at [83], [84], [86]).
(iii) Some of the orders made by NCAT were beyond power. Any individual order will attract the monetary limit of $15,000. Where on an application to NCAT a landlord seeks an order for the payment of an amount of money representing rental arrears, the monetary limit of $15,000 applies to cap the total amount which NCAT can order for that particular claim in that particular application. The clear legislative intention of s 187(4) of the RTA and reg 40 is to impose monetary limits on NCAT’s power to make an order which involves the payment of money as set out in s 187(1). That intention is subverted if NCAT makes an order for rental arrears in excess of $15,000. Several orders made by NCAT here explicitly required Mr Hawkins to pay a monetary amount for rental arrears in excess of $15,000. Each order was beyond NCAT’s power and should be set aside (at [110]).
(iv) The legislative intention to cap any single order made by NCAT for rental arrears in any individual application before NCAT is equally subverted if the Tribunal breaks down the amount of the rental arrears to sums which are $15,000 or below and consequently makes multiple orders for payment of rental arrears, none of which individually exceeds $15,000. Accordingly, where NCAT had consciously broken down two separate orders to as to avoid exceeding the $15,000 limit, these orders were beyond power (at [111]).
(v) If a landlord wishes to recover more than $15,000 in rental arrears in a single proceedings, they have the option of bring a proceedings in an appropriate court. Alternatively, it might be open to the landlord to bring more than one application in NCAT seeking an order for payment of an amount of money for rental arrears not exceeding $15,000 in each application (at [113]). | Makowska v St George Community Housing Limited [2024] NSWSC 1243 8 October 2024 - Adams J
In sum: The Supreme Court dismissed a summons which sought leave to appeal from a decision of an Appeal Panel of NCAT. Ms Makowska had applied to NCAT for a further rent reduction pursuant to s 44(1)(b) of the RTA and an order pursuant to s 187(1)(b) that the lawns that form part of the common property of the premises be remediated. The application was dismissed by NCAT at first instance on the basis that it was not satisfied the landlord had withdrawn amenities or facilities from the tenant as alleged. On appeal, an Appeal Panel of NCAT refused to extend the time to lodge the internal appeal, finding that the appeal lacked merit. The decision made by NCAT at first instance was not unreasonable, and the Member correctly applied the provisions of the RTA.
Ms Makowska then appealed that decision to the Supreme Court which held that Ms Makowska failed to demonstrate any error of law nor any basis to grant leave to appeal. | Supreme Court of Tasmania | Moorilla Estate Pty Ltd v Lau [2024] TASSC 49 27 September 2024 - Marshall AJ
In sum: An exception to direct discrimination under s 16(e) of the Anti-Discrimination Act 1998 (Tas) is set out in s 26 which provides that a person may discriminate in a project, plan or arrangement which is designed to promote equal opportunity for a group of people who are disadvantaged or have a special need because of a prescribed attribute. A prescribed attribute includes gender. An art installation which only permitted entry from people who identified as female, while constituting direct discrimination under s 16(e), fell within the exception under s 26.
Facts: The appellant owns MONA in Tasmania. In 2020, MONA opened an exhibition known as the ‘Ladies Lounge’ which was a private lounge that only permitted entry from people who identified as female. The Ladies Lounge was referred to as a participatory installation. The process of being admitted or refused admission and the participation in the Ladies Lounge was part of the art itself.
Mr Lau (the respondent) attended MONA and sought entry into the Ladies Lounge but was denied entry as a male. Mr Lau lodged a complaint with Equal Opportunity Tasmania about MONA’s refusal of his entry stating that he was discriminated against on account of his gender, contrary to the Anti-Discrimination Act. The complaint was referred to the TASCAT which held that refusal to permit Mr Lau entry was direct discrimination which is prohibited under the Anti-Discrimination Act. The appellant appealed that decision to the Tasmanian Supreme Court. It was not in dispute that the exclusion of Mr Lau involved direct discrimination against him on the basis of his gender contrary to s 16(e) of the Anti-Discrimination Act 1998. What was in contention was whether the exclusion fit within an exception under s 26 of the Anti-Discrimination Act. Section 26 states that: “Any person may discriminate against another person in any project, plan or arrangement designed to promote equal opportunity for a group of people who are disadvantaged or have a special need because of a prescribed attribute.”
Held (allowing the appeal, remitting the matter for reconsideration): (i) Section 26 is not to be read in a narrow or restrictive way (Anti-Discrimination Commissioner v White [2023] TASSC 26). It is noteworthy that the Explanatory Memorandum to the Anti-Discrimination Act refers to reducing disadvantage and structural inequality and not their elimination. There is no need to import into s 26 a requirement that the purpose of the arrangement must be for achieving substantive equality between men and women. It is sufficient that the arrangement promotes equal opportunity for women who as a gender are disadvantaged in society because of that gender. It was not the intention of the appellant in establishing the Ladies Lounge to achieve substantive equality. Rather, its intention was to promote equal opportunity by drawing attention to present and past societal disadvantage to women (at [13]-[14]).
(ii) TASCAT mischaracterised the evidence. The evidence was clear that ultimately the Ladies Lounge had nothing to do with providing an art space for female artists, and the “opportunity” referred to in s 26 was not identified as having artwork displayed. Rather, the evidence as to the opportunity being provided by the Ladies Lounge was to highlight societal gender discrimination and thereby promote equality of opportunity by women engaging in a rare experience where they have the privilege of discrimination in their favour. TASCAT’s findings on this point were not open on the evidence and thereby reveal an error of law. In failing to consider this evidence in the context of ‘current disadvantage’, TASCAT also failed to take into account a relevant consideration and thereby erred in law (at [28]-[32]).
(iii) TASCAT asked itself the wrong question by considering whether the relevant disadvantage for the purposes of s 26 was the disadvantage experienced by women artists in the context of work displayed, and made an error of fact by categorising the disadvantage claimed as past disadvantage only and also past disadvantage merely regarding access to spaces. The disadvantage addressed by the arrangement was ongoing gender disadvantage. Equal opportunity was promoted by highlighting the disadvantage by providing women with a rare reverse experience where they were advantaged and men disadvantaged (at [33]).
(iv) The correct approach to s 26 is firstly, to ask whether the arrangement's purpose was to promote equal opportunity. On the evidence, the unequivocal answer is yes. The second question is to ask whether it was reasonable for the appellant to believe that such a purpose could promote equal opportunity. Having regard to the evidence, it was objectively reasonable for the appellant to believe that equal opportunity could thereby be promoted. The answer to that question is also yes. Finally, the third question to ask is whether the group of people sought to be advantaged have a special need because of a prescribed attribute. The answer to that question is again yes. The attribute concern is gender (see Anti-Discrimination Act 1998, s 16(e)). The special need is the need to have disadvantage redressed and addressed on an ongoing basis by having the Ladies Lounge open to women only (at [38]-[40]). | | 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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