| | | | | | | NCAT Legal Bulletin Issue 6 of 2021
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| The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
This issue features case summaries of recent decisions from the New South Wales Court of Appeal, Supreme Court of New South Wales, Victorian Court of Appeal and the Federal Court of Australia, including:
- Hassan v Sydney Local Health District (No 2) [2021] NSWCA 122 - In which the Court of Appeal dismissed the notice of motion filed by an appellant who sought various orders from several decisions of the Court. The Court found that the application was vexatious, and made comments on the duties of judicial decision-makers to consider evidence and provide reasons.
- Tanious v NSW Land and Housing Corporation [2021] NSWSC 807 - In which the Supreme Court refused leave to appeal and dismissed the appeal of the applicant, who was a tenant of the respondent, and sought to appeal from orders of the NCAT Appeal Panel that he give vacant possession of the subject residential property to the respondent.
- Dubow v Mid-Western Regional Council [2021] NSWSC 699 - In which the Supreme Court dismissed the summons of the plaintiff who sought judicial review of the respondent’s decision to impound and sell her alpacas.
- Chief Commissioner of Police v IHF [2021] VSCA 147 - In which the Victorian Court of Appeal dismissed the appeal of the Chief Commissioner of Police against a decision of the Supreme Court, which dismissed his application for judicial review of the decision of the Police Registration and Services Board, which had overturned the dismissal of the respondent police officer. The Court found that the Board did not err in making a finding that was not argued by either party, nor did it deny the Commissioner a reasonable opportunity to be heard by refusing to allow him to call a witness late in the proceedings.
- Kumar v Minister for Immigration [2021] FCA 713 - In which the Federal Court of Australia dismissed the appeal of the appellant from the Federal Circuit Court, which dismissed the appellant’s application for judicial review of the decision of the second respondent, the Administrative Appeals Tribunal, which confirmed the respondent’s dismissal of the appellant’s application for a visa because he failed to appear at his hearing, and failed to give sufficient reason for that failure.
This issue also provides links to a number of summaries published separately by the NSW Court of Appeal Decisions of Interest Bulletin.
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New South Wales Court of Appeal
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| Hassan v Sydney Local Health District (No 2) [2021] NSWCA 122
7 June 2021 - Bell P, Basten and Leeming JJA
In sum: The Court of Appeal dismissed the notice of motion filed by an appellant who sought various orders from several decisions of the Court. The Court found that the application was vexatious, and made comments on the duties of judicial decision-makers to consider evidence and provide reasons.
Facts: The appellant appealed from numerous proceedings in the Court, alleging bias and procedural unfairness, and sought referral of several Justices of the Court and the Registrar to the Commonwealth Director of Public Prosecutions and the Commonwealth Parliament. The appellant filed extensive submissions in support of her appeal ([1]-[3], [6], [9]).
Held (dismissing the notice of motion):
(i) Just because a judgment may not mention or refer to every piece of evidence relied upon or submission made does not mean that that evidence and/or those submissions have not been considered. This is especially so if and where the evidence or submissions in question are discursive, rambling and irrelevant to the precise issues before the decision-maker ([15]).
(ii) In such circumstances as this, there is no necessity for as busy a court as the Court of Appeal to refer in its interlocutory decisions to all evidence relied upon, or submissions made. Just as neither the need nor the appearance of justice require that reasons be given for every decision, so too not every argument raised will need to be addressed in the context of a decision on practice and procedure, or a decision reviewing such a decision. That is especially so where the submissions made are misconceived, repetitive or overly discursive, as is often the case with self-represented litigants ([16]).
(iii) This does not detract from the central importance of reasons for judgment. Considerations of proportionality and the Court’s obligation to give effect to its overriding purpose of facilitating the just, quick and cheap resolution of the real issues, call for discriminating judgment by the Court as to where and how to strike a balance in dealing with motions and voluminous evidence of the kind before the Court in the present proceedings ([17]).
(iv) Justice is a multi-faceted concept, and the limited nature of judicial resources, and the cost to litigants and the general public in requiring reasons on every argument raised by a self-represented litigant must also be weighed. “Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality.” The content and detail of reasons will vary according to the nature of the jurisdiction which the court is exercising, and the particular matter the subject of the decision ([18]-[19]).
Read the decision on the NSW Caselaw website. |
| | Supreme Court of New South Wales |
| Tanious v NSW Land & Housing Corporation [2021] NSWSC 80730 June 2021- Garling J
In sum: The Supreme Court refused leave to appeal and dismissed the appeal of the applicant, who was a tenant of the respondent, and sought to appeal from orders of the NCAT Appeal Panel that he give vacant possession of the subject residential property to the respondent.
Facts: The applicant sought to appeal from a decision of the NCAT Appeal Panel, which had ordered the applicant, who is a tenant of the respondent, give to the respondent vacant possession of the premises. Two potential questions of law were identified by the applicant: firstly, relating to the conclusion of the Tribunal and Appeal Panel to the effect that a special leave application brought by the applicant in the High Court had been “deemed to be abandoned”; second, whether the Member should have, but did not, contact the High Court to establish the true and accurate status of the applicant’s application for special leave to appeal in the High Court. The Appeal Panel was not requested to contact the High Court, but the request was put before the Supreme Court ([7], [14]-[15]).
Held (refusing leave to appeal and dismissing the summons):
(i) The issue of whether or not a special leave application was, or was not, current and on foot in the High Court at the time of the NCAT proceedings is a question of fact, not a question of law. The applicant provided no evidence to make the Supreme Court doubt the correctness of the decisions below, and there is no obligation on the Court to determine that question of fact afresh; any consideration of this issue is limited to considering whether there is any question of law arising from the Appeal Panel’s decision on this issue. No such question of law exists ([23]-[25]).
(ii) The Tribunal may determine its own procedures in circumstances where the relevant Act and the procedural rules do not otherwise make provision. The Tribunal is not bound by the rules of evidence, and may enquire to inform itself on any matter in such manner as it thinks fit ([31]).
(iii) Section 38(6) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) requires the Tribunal to ensure all relevant material is disclosed to it, to enable it to determine all of the relevant facts. There is no specific mandated obligation on a Tribunal Member to gather evidence for themselves, to make inquiries of third parties, or in any way participate as a fact gatherer in the dispute to be determined by the Member. The Member’s role is to adjudicate the dispute. The guiding principle of facilitating the just, quick and cheap resolution of the real issues under s 36(1) is not apt to require Members to undertake any factual enquiry for themselves about the issues in proceedings ([30], [32]-[33]).
(iv) The order sought by the appellant, for the Tribunal to contact the High Court, goes beyond the requirements of s 38(6). NCAT is not an inquisitorial tribunal designed or resourced to undertake independent investigations; NCAT is established to determine disputes between parties contained in the proceedings brought before it. It would not have been open to the Appeal Panel to make such an enquiry as the appellant suggests, even if it had been requested to do so ([34]-[35]).
(v) Insofar as the Supreme Court was asked to make enquiries with the High Court, it declined to do so. The Supreme Court has statutory power to affirm, vary or set aside the decision below, and remit it to NCAT if error is shown. The Supreme Court is not a fact-finding court, and it would be erroneous for it to undertake such enquiries as the appellant suggested ([39]).
Read the decision on the NSW Caselaw website.
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| Facts: The plaintiff owned several alpacas which she allowed to graze on and near public roads near her property. In May 2019 and February 2020 a number of her alpacas were impounded by the respondent, and later sold. After the first impounding, the plaintiff commenced proceedings at NCAT seeking a stay of the sale of the alpacas; the respondent refused to return the alpacas to the plaintiff unless she paid fees owed to the respondent for the impounding and holding of the alpacas. The stay was refused and the Tribunal found that it did not have jurisdiction to hear and determine her application and review the respondent’s decision; the alpacas were subsequently sold by the respondent. After the second impounding, the plaintiff commenced proceedings at the Local Court. The plaintiff sought relief at the Supreme Court on the basis that the impounding and sale did not comply with the relevant provisions of the Impounding Act 1993 (NSW) and Local Land Services Act 2013 (NSW) and was therefore unlawful ([1], [19]-[21], [28]-[29], [31]-[36]).
Held (dismissing the summons):
(i) The offence of causing or permitting stock to be on a public road, pursuant to s 116 of the Local Land Services Act, and the power to impound such animals has the purpose of protecting the safety of those who use public roads. The plaintiff’s reason for the alpacas’ presence on public roads (for the purposes of grazing, her own land being drought affected) is not relevant to the purpose of the impounding power. The fact that the alpacas were only 50 metres from the plaintiff’s property, and that the alpacas were known to belong to the plaintiff, has no bearing on the legality of the respondent’s actions ([47]).
(ii) Section 116 has a low threshold: the impounding officer is merely required to “suspect” the stock to be on a public road. This falls far short of what is required to establish a fact on the balance of probabilities ([49]).
(iii) There need not be any proportionality or necessary relationship between the maximum penalty for the statutory offence and the fees charged for impounding and keeping the animals. One is a penalty, the other a fee for service ([53]).
(iv) The existence of proceedings at NCAT or the Local Court do not act as an automatic injunction restraining the respondent from exercising its statutory powers. Such an effect could only come about through the orders of NCAT or the Local Court, or an undertaking by the respondent to refrain from exercising its statutory powers. Nor does the filing of a summons at the Supreme Court have the effect that a decision or action which is sought to be challenged is automatically stayed. Similarly, that the parties settled previous Local Court proceedings did not stop the respondent from impounding or selling the alpacas by reason of the terms of that settlement, because it applies only up to the date of the settlement, and does not purport to constrain the respondent’s exercise of statutory power in the future. If it had purported to do so, it would arguably have been invalid ([51], [54], [56]).
(v) The impounding notices were not invalidly served because they were not handed to the plaintiff personally. It would be “remarkable to the point of absurdity” that the plaintiff, having admitted to receiving the notices, could be held not to have been served. The wording of s 49 of the Impounding Act makes clear that the provision is “facultative and non-exclusive”; that is, it provides for the ways in which service can be effective, without intending to provide that the ways specified in the provision constitute the only means of effecting service ([57]-[59]).
Read the decision on the NSW Caselaw website.
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| Victorian Court of Appeal
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| Chief Commissioner of Police v IHF [2021] VSCA 147
3 June 2021 - Kyrou, Emerton and Kennedy JJA
In sum: The Victorian Court of Appeal dismissed the appeal of the Chief Commissioner of Police against a decision of the Supreme Court, which dismissed his application for judicial review of the decision of the Police Registration and Services Board, which had overturned the dismissal of the respondent police officer. The Court found that the Board did not err in making a finding that was not argued by either party, nor did it deny the Commissioner a reasonable opportunity to be heard by refusing to allow him to call a witness late in the proceedings.
Facts: The respondent, a senior constable of Victoria Police, was dismissed by an Inquiry Officer for disgraceful conduct for inappropriately exposing his genitals to a day spa therapist while receiving a waxing treatment. The Police Registration and Services Board (the Board) reviewed and overturned the decision on the basis that it was “harsh, unjust and unreasonable” because the charge was not proven to the requisite standard. The Board accepted the complainant’s evidence that there was exposure and she was distressed by it, but considered that no sufficient inquiry had been conducted into the possibility of inadvertent exposure. The appellant (the Commissioner) sought judicial review, and the appeal was dismissed by the primary judge; the Commissioner appealed to the Court of Appeal on the basis that the primary judge erred in rejecting his application. The Commissioner argued first, that it was not open on the evidence for the Board to find that there was a possibility of inadvertent exposure, which was not advanced by either party; and second, that the Commissioner was denied procedural fairness by the Board’s refusal to allow him to recall the complainant to clarify gaps in the evidence before the Board ([1]-[6]).
Held (granting leave to appeal and dismissing the appeal):
Ground 1
(i) A decision will not be unreasonable if there is room for a logical or rational person to reach the same decision on the material before the decision-maker. Illogicality or irrationality in a finding of a jurisdictional fact amounts to jurisdictional error, and will result in the decision under review being set aside ([94]-[95], [104]).
(ii) The Board’s inquiry could not be characterised, as the Commissioner submits, as a single-minded pursuit of a hypothesis not advanced by either party and therefore outside the “prism” through which the Board was required to conduct its review. The Board was not constrained by the manner in which the parties conducted the inquiry before the Inquiry Officer; it was entitled to look at all of the evidence, and reasonably found that the evidence was insufficient to prove intentional exposure, as opposed to inadvertent exposure, to the requisite standard ([99]).
(iii) The finding of unintentional exposure was not precluded by the respondent’s own evidence that there was no exposure whatsoever; the respondent’s denial of what was put to him could not have excluded something which he could not have known. What was put to the respondent in the initial inquiry did not accurately represent the complainant’s evidence, and therefore may have distorted the respondent’s responses ([102]).
Ground 2
(iv) Ordinarily, procedural fairness does not require a decision-maker to disclose their provisional views or proposed conclusions; such disclosure could risk conveying the impression of prejudgment. However, in some cases procedural fairness may require a decision-maker to disclose a particular path of reasoning that the parties could not reasonably have anticipated, or forewarn of a proposed conclusion that is likely to take parties by surprise. This is because the parties have a right to ascertain and address the issues relevant for determination, including a right to rebut or qualify by further information and comment by way of submission on adverse material before the decision-maker. The ultimate question is whether procedural fairness, assessed by reference to the relevant statutory scheme, requires disclosure in order for the person affected by a decision to have the opportunity to be heard ([113]-[115]).
(v) All parties were aware that intentional exposure was a necessary element in order to find the charge proven, and the Board made clear to parties that it intended to explore in detail certain facts found by the Inquiry Officer which were of concern to the Board ([117]-[118]).
(vi) The Board was reasonable in refusing the Commissioner’s application to call the complainant when it became obvious that the Board had identified insufficiencies in the evidence. There was an inherent problem with calling the complainant at this late stage in the Board’s review to supplement her earlier evidence, as it was, as the Board found, too late to “fill the gaps” in the evidence at the end of the inquiry, decision and review process without causing significant procedural unfairness to the respondent. The issue could only be cured, while being fair to the respondent, by restarting the process afresh. Failures at the inquiry stage of eliciting accurate and detailed allegations infected the whole process, and if the Board, as a review body, were to go back to square one to do so it would effectively be reformulating the charge in circumstances where it had no power to lay or amend a charge ([54], [79], [121]).
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| Federal Court of Australia
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| Kumar v Minister for Immigration [2021] FCA 713
29 June 2021 - Nicholas J
In sum: The Federal Court of Australia dismissed the appeal of the appellant from the Federal Circuit Court, which dismissed the appellant’s application for judicial review of the decision of the second respondent, the Administrative Appeals Tribunal, which confirmed the respondent’s dismissal of the appellant’s application for a visa because he failed to appear at his hearing, and failed to give sufficient reason for that failure.
Facts: The appellant’s student visa was cancelled and he applied for review at the Administrative Appeals Tribunal (AAT). The appellant did not attend the hearing or request a postponement, and the application was dismissed pursuant to s 362B(1A)(b) of the Migration Act 1958 (Cth). The appellant sought reinstatement of the application and provided a statutory declaration and a medical certificate in support, but the AAT confirmed the decision to dismiss the application. The AAT found the medical certificate to be insufficient to demonstrate the severity of the appellant’s illness, and pointed to a number of factors that indicated there was no evidence that the appellant was unfit to attend the Tribunal hearing. The appellant’s appeal was dismissed by the Federal Circuit Court which upheld the AAT’s findings in regard to the medical certificate, and criticised the “scattergun” approach of his grounds of review. The appellant appealed to the Federal Court ([4]-[7], [19]).
Held (dismissing the appeal):
(i) As submitted by the applicant, the purpose of the s 362B power to dismiss proceedings where applicants fail to appear is, according to the Explanatory Memorandum, to deter unmeritorious applicants who were not actively pursuing their applications and thereby delaying their removal from Australia. However the language of the provision does not confine the circumstances in which the power may be exercised to only those cases where the application for review may be described as unmeritorious, or where the application for review is not being actively pursued ([28]-[30]).
(ii) In deciding to reinstate an application under s 362B(1C), the AAT has a statutory responsibility to form an opinion, or make an assessment, as to whether reinstatement is “appropriate”, having regard to all the circumstances. The AAT’s reasons for decision demonstrate that it engaged in an active intellectual process in deciding whether, in light of the appellant’s medical certificate and statutory declaration, reinstatement was appropriate. Reasonable minds may differ as to whether the circumstances warranted dismissal of the reinstatement application, but that does not mean the AAT’s decision was unreasonable, and the Federal Court found that primary judge was correct to reject the appellant’s contention that the AAT’s decision was legally unreasonable ([31]-[35]).
Read the decision on the Federal Court of Australia website.
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| | Decisions of Interest Bulletin
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| | AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112
PRACTICE AND PROCEDURE – joinder – appeal against refusal of application to modify development consent – parties agree on terms of a decision to dispose of appeal – intervenor raising jurisdictional issue that court has no power to so dispose of the appeal – source of power to join intervenor – whether s 8.15(2) Environmental Planning and Assessment Act available power for joinder – section 8.15(2) not an available power of joinder for this appeal - whether r 6.24 Uniform Civil Procedure Rules alternative source of power for joinder – whether joinder as a party necessary to determine all matters in dispute - whether power to amend modification application – whether error in exercise of discretion to join intervenor – whether joinder legally unreasonable |
| Yebdoo v Holmewood [2021] NSWCA 119
NEGLIGENCE – breach of duty – motor vehicle accident – failure to keep a proper lookout and slow vehicle
NEGLIGENCE – causation – factual causation – motor vehicle accident – whether expert opinion was necessary to establish causation – whether evidence of time and distance was too imprecise to support a finding of causation
EVIDENCE – witness evidence – cross-examination – procedural fairness – Browne v Dunn – substance of the case allegedly not put to respondent in cross-examination – whether prior notice had nevertheless been given to respondent of cross-examining party’s case |
| Wardy v NSW Trustee and Guardian [2021] NSWCA 121
SUCCESSION – appropriate substitute for specific devise – property subject of specific devise sold by administrator to pay debt – need to put specific devisees in materially the same position that they would have been in if the sale had not occurred – how rights of beneficiaries should be adjusted –whether substitution of specific property from residuary real estate appropriate – need for equivalence in value
VALUATION – courts and tribunals – appeals – whether judge erred in discounting value of property for contingencies – acceptance of expert evidence required evaluative conclusions to be made – standard of appellate review analogous to that described in House v The King
SUCCESSION – trusts and trustees – judicial advice, Trustee Act 1925 (NSW), s 63 – whether judicial advice given – parties concurred in primary judge himself determining the issue of what adjustment of the rights of the beneficiaries should be made – broad powers of the Court under UCPR r 54.3
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| MetLife Insurance Limited v Sandstrom [2021] NSWCA 123
INSURANCE – claim by ex-police officer for total and permanent disability (“TPD”) payment – need to provide proof to satisfaction of insurer of TPD under policies – contractual obligations of insurer to assess claim in good faith and act fairly and reasonably – whether insurer breached contractual obligations – whether it was fair of insurer to rely on certain medical opinions as adverse to claimant – whether insurer took into account written submissions of claimant – cumulative effect demonstrated a lack of overall fairness
COSTS – party/party – exceptions to general rule that costs follow the event – offers of compromise and Calderbank offers – assertion that appellant unreasonably failed to accept respondent’s Calderbank offer – whether primary judge erred in refusing to make a special costs order – primary judge did not err in the exercise of his costs discretion |
| Schlaepfer v Australian Securities & Investments Commission [2021] NSWCA 129
DEFAMATION – Publication – Slander – Where appellant relied on contemporaneous email to prove publication of the words allegedly said – Whether slander proved in the terms pleaded – Whether appellant identified by the matters complained of – Whether imputations complained of by appellant conveyed to the ordinary reasonable listener
DEFAMATION – Defences – Defence of qualified privilege at common law and under Defamation Act 2005 – Whether reasonableness required to be proved to establish defence at common law having regard to defence as pleaded – Whether reasonableness established – Defence of justification – Where ASIC sought to establish truth of imputation of market manipulation without attempting to establish the individual trading of any particular trader or pod of traders – Contention that the relevant company had engaged in the impugned conduct on “any one or more” of 23 “occasions” – Expert opinion evidence concerning proof of impugned conduct by the establishment of certain metrics observed in the company’s trading – Whether sufficient to establish truth defence |
| | 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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