| | | | | NCAT Legal Bulletin Issue 7 of 2020
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| The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
This issue features case summaries of recent decisions from the Supreme Court of New South Wales and New South Wales Court of Appeal, including: - Di Liristi v Matautia Developments Pty Ltd (No 2) [2020] NSWSC 862 - Wright J in the Supreme Court dismissed a notice of motion seeking summary dismissal of residential tenancy proceedings in the Supreme Court, despite the existence of concurrent proceedings in NCAT. NCAT had ceased to have jurisdiction to determine issues relating to termination of the tenancy agreement after becoming aware that the Supreme Court proceedings had commenced: cl 5(7) of Sch 4 to the NCAT Act. Accordingly, it could not be said that it was an abuse of process to continue the proceedings in the Supreme Court.
- Council of the Law Society of New South Wales v Yoon [2020] NSWCA 141 - the Court of Appeal ordered that a solicitor’s name be removed from the roll following the Tribunal’s findings of professional misconduct, which the solicitor did not appeal. In doing so, the Court considered whether, by virtue of s 91 of the Evidence Act 1995 (NSW), it should be restricted from having regard to the Tribunal’s findings in making its decision about removal.
- DRJ v Commissioner of Victims Rights [2020] NSWCA 136 - in considering an application for orders to be made under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) withholding the applicants' names from publication, the Court of Appeal made some comments about the different standards for making such orders in the Supreme Court and the NCAT context (see ss 6, 8 of the Court Suppression and Non-publication Orders Act cf s 64 of the NCAT Act).
- Zepinic v Health Care Complaints Commission [2020] NSWCA 146 - in dismissing an appeal from the Supreme Court (which in turn was an appeal from the Occupational Division), the Court made some comments about NCAT's ability to take into account an applicant’s “spent convictions” when considering an application for reinstatement under the National Law, as opposed to an application for administrative review (see ss 12, 16 of the Criminal Records Act 1991 (NSW)).
- Gardiner v Laing O’Rourke Australia Construction Pty Ltd [2020] NSWCA 151 - the Court of Appeal allowed an appeal from a decision of the President of the Workers Compensation Commission, on the basis that a settlement previously obtained under the Anti-Discrimination Act 1977 (NSW) did not preclude recovery of compensation for a workplace injury under the Workers Compensation Act 1987 (NSW). Relevantly to the work of NCAT, Basten JA also commented that, if workers compensation were to be obtained first, there would be no basis for forclosing relief for discriminatory conduct by an employer.
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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Supreme Court of New South Wales
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| In sum: The Supreme Court dismissed a notice of motion seeking summary dismissal of residential tenancy proceedings in the Supreme Court, despite the existence of concurrent proceedings in NCAT, on the basis that NCAT had ceased to have jurisdiction to determine any issues relating to termination of the tenancy agreement after becoming aware that the Supreme Court proceedings had commenced.
Facts: The plaintiff, Mr Liristi, filed a summons seeking relief in relation to disputes involving a residential tenancy of premises in Austral, in the City of Liverpool local government area. The defendants to the summons are the landlord of the premises, Matautia Developments Pty Ltd (Matautia), and three of its directors or agents ([1]).
The defendants applied for the proceedings to be summarily dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR), on the basis that they did not disclose any reasonable cause of action, because the question of termination of the residential tenancy agreement was a matter to be determined in NCAT, where proceedings were also on foot (commenced by Matautia) ([4], [10]-[11]).
In the Supreme Court proceedings, the plaintiff sought (amongst other things) orders estopping Matautia from terminating the lease, and requiring the defendants to pay damages and the costs of various repairs. In the Tribunal proceedings, the defendants sought orders for termination of the residential tenancy agreement and recovery and possession of the premises ([3], [6], [66]).
Held (dismissing the application for summary dismissal):
(i) On the material before Wright J, his Honour was of the view that it would not be proper to conclude that the plaintiff’s case was, in respect of the potential causes of action and bases for relief that apparently arise, so clearly untenable that it could not possibly succeed or that no reasonable causes of action were disclosed (at [74]).
(ii) Wright J observed that the plaintiff’s claims were “not without some potential support”, and was not satisfied that Matautia had demonstrated “certainty of the outcome of the litigation” in its favour such as is required before proceedings should be summarily dismissed (at [75]).
(iii) Wright J did not accept the defendants’ submission that the claims in relation to breaches of the residential tenancy agreement should be dealt with in NCAT, and not the Supreme Court. The fact that there were proceedings already commenced in NCAT concerning the same subject matter did not alter this position (at [76]).
(iv) Since proceedings were commenced in the Supreme Court prior to the proceedings in NCAT, and the issues in the Supreme Court related to termination and other aspects of the residential tenancy agreement, NCAT ceased to have jurisdiction to deal with Matautia’s application for termination, by virtue of cl 5(7) of Sch 4 to the NCAT Act. This clause removes from the Tribunal jurisdiction to determine an issue which is also an issue in the proceedings before the Supreme Court (at [77]-[80]).
(v) Accordingly, it “should not be concluded that it is an abuse of process or vexatious to have commenced or to continue” the proceedings in the Supreme Court (at [81]).
(vi) Even if there was no jurisdictional problem for NCAT as a result of cl 5(7), there are other limits on NCAT’s jurisdiction that meant it would not be appropriate for the plaintiff’s claims based on breaches of the tenancy agreement to be heard in NCAT. See e.g. s 187(4)(a) of the Residential Tenancies Act 2010 (NSW) and cl 40 of the Residential Tenancies Regulation 2019 (NSW), imposing a limit of $15,000 on claims for payment of money that can be made in NCAT. In circumstances where it was not established that the plaintiff’s claims were less than that amount, it did not appear that NCAT would have jurisdiction to deal with the claims, and there was no abuse of process in continuing the proceedings in the Supreme Court (at [82]-[85]).
(vii) Accordingly, Wright J determined that the defendants’ summary dismissal application should be dismissed, and that the plaintiff’s claim should proceed to a hearing on the merits (at [86], [96], [99]).
Read the decision on the NSW Caselaw website.
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| New South Wales Court of Appeal
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In sum: The Court of Appeal made an order that a solicitor’s name be removed from the roll following the Tribunal’s findings of professional misconduct, which the solicitor did not appeal. In doing so, the Court considered whether, by virtue of s 91 of the Evidence Act 1995 (NSW), it should be restricted from having regard to the Tribunal’s findings in making its decision about removal.
Facts: The Occupational Division of NCAT found a solicitor, Mr Yoon, guilty of professional misconduct, and made a recommendation pursuant to s 302(1)(f) of the Legal Profession Uniform Law (NSW) that Mr Yoon’s name be removed from the roll and from the Australian Legal Profession Register ([2]).
Mr Yoon did not appeal the Tribunal’s decision, nor did he seek to challenge any of the findings of fact made by the Tribunal ([5]).
Following this, the Council of the Law Society of New South Wales (the applicant) filed a summons in the Supreme Court seeking an order that Mr Yoon’s name be removed from the roll ([1]).
Under s 48(2)(k) of the Supreme Court Act 1970 (NSW) and Part 65A rule 2 of the Supreme Court Rules 1970 (NSW), the proceedings were assigned to the Court of Appeal ([20]).
Held (ordering that Mr Yoon’s name be removed from the roll):
Whether the Court could, in determining if Mr Yoon was not a fit and proper person to be a legal practitioner, have regard to the Tribunal’s findings of fact and characterisation of his conduct – YES
(i) The Council raised for consideration an issue as to what use could be made of the Tribunal’s decision, having regard to s 91 of the Evidence Act (at [24]).
(ii) The scope of the prohibition in s 91 was considered in the context of professional disciplinary proceedings in Hilton v Legal Profession Admission Board [2017] NSWCA 232 and King v Muriniti (2018) 97 NSWLR 991; [2018] NSWCA 98, both of which referred to the obiter observations of Basten JA in King v Muriniti at [35] (Gleeson JA agreeing) that “the disciplinary jurisdiction would not permit a practitioner to require the Prothonotary to prove again a finding of misconduct made in other proceedings because reliance could not be placed upon those findings. Hence s 91 was not engaged” (at [24]).
(iii) In the present case, it was not necessary to determine what limitation s 91 places on assessment of whether a solicitor is a fit and proper person to remain on the roll of Australian lawyers, nor was it appropriate to do so where there was no contradictor to argue the issue before the Court (at [32]).
(iv) Nor was it necessary to decide whether a lawyer who opposes a recommendation that his or her name be removed from the roll, but who has not appealed a finding of professional misconduct, is precluded from challenging the Tribunal’s findings on which the recommendation is based (at [32]).
(v) It was sufficient to note that there had been a finding (for the reasons given by the Tribunal) that Mr Yoon was guilty of professional misconduct and there had been no challenge to that finding (at [32]).
(vi) This Court could proceed on the basis that Mr Yoon had been found guilty of relevant breaches of the Legal Profession Act 2004 (NSW). Having regard to the Tribunal’s findings of fact and the material on which its decision was based, and noting that there was no appeal from those findings, the Court found it was clear that Mr Yoon was not a fit and proper person to be an officer of the Supreme Court, and that his name should be removed from the roll (at [33], [35]).
Read the decision on the NSW Caselaw website.
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| In sum: The Court of Appeal ordered that the names of five applicants, who were appealing a decision made in the Administrative and Equal Opportunity Division of NCAT, be withheld from publication. In doing so, the Court made a number of comments about the making of suppression and non-publication orders in the NCAT context versus the Supreme Court context.
Facts: The applicants were five women of Yazidi ethnicity who say that in 2014 they were subjected to a series of acts of violence at the hands of an Australian man in Syria and Northern Iraq ([4]).
In July 2018, the women applied for recognition payments and counselling under the Victims Rights and Support Act 2013 (NSW) (the Victims Rights Act). The application, and subsequent internal review, was dismissed on the basis that none of the acts occurred in New South Wales ([6]).
The applicants sought administrative review of the dismissal in NCAT under s 51 of the Victims Rights Act. During the NCAT proceedings, an order was made under s 64 of the NCAT Act, which had the effect of identifying the applicants by pseudonyms. However, NCAT dismissed the application for administrative review ([7]-[8]).
The applicants sought judicial review in the Court of Appeal, alleging error of law on the face of the record by NCAT ([9]).
In the court proceedings, the applicants sought orders under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Suppression Act) preventing the publication of their names and requiring reference to them to be by pseudonyms (as in the NCAT proceedings) ([3]).
Held (ordering that the applicants’ names be withheld from publication for 3 years):
(i) The question for the Court was whether, having regard to the importance of safeguarding the public interest in open justice, it was necessary to protect the safety of the appellants to make an order preventing the publication of their names: Suppression Act, ss 6, 8 ([13]).
(ii) An application for merits review in a State tribunal is quite different from commencing civil proceedings in the Supreme Court ([24]).
(iii) Open hearings are a hallmark of curial determination of proceedings: see Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 at [44]; HT v The Queen [2019] HCA 40; 93 ALJR 1307 at [82] ([24]-[25]).
(iv) In contrast, many hearings in NCAT take place in ways which are not open to the public. Sometimes this is because of the nature of the jurisdiction (e.g. proceedings in the Guardianship Division). But more generally, NCAT may determine any application for leave on the papers. NCAT may also make an order dispensing with a final hearing if, after giving the parties an opportunity to make submissions about doing so, it forms the view that the issues can be adequately determined in the parties’ absence: NCAT Act, s 50(2) ([26]).
(v) The important role of public and professional scrutiny of curial proceedings explains the significant difference between the powers in s 64 of the NCAT Act and ss 6 and 8 of the Suppression Act, under which a court will only make a suppression order if it determines it is “necessary”, as opposed to merely “desirable” ([27]).
(vi) The Court of Appeal rejected the argument that, where one of the grounds in s 8 is made out, the “primary objective of open justice” in s 6 need not be taken into account ([30], [38]).
(vii) The onus lay on the applicants to demonstrate that an order was “necessary”, and an order will generally only be made in exceptional circumstances: HT v The Queen [2019] HCA 40 at [82]; Hogan v Australian Crime Commission [2010] HCA 21 at [30]-[31]; Rinehart v Welker [2011] NSWCA 403 at [27]; Nationwide News Pty Ltd v Qaumi [2016] NSWCCA 97 at [22]-[26] and AB (A pseudonym) v R (No 3) [2019] NSWCCA 46 at [55]-[58] ([40]-[41]).
(viii) It was unclear whether making a non-publication order which lasted “until further order” would be inconsistent with the requirement in s 12 of the Suppression Act to “specify” the duration of an order, and the requirement to ensure that an order is in force for no longer than is reasonably necessary ([43]-[47]).
(ix) Based on the evidence before it, the Court of Appeal was satisfied it was necessary in order to protect the safety of the applicants for their names not to be published for a period of 3 years ([54]).
(x) The Court of Appeal’s decision in respect of the summons will be delivered later this year ([50]).
Read the decision on the NSW Caselaw website.
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| Zepinic v Health Care Complaints Commission [2020] NSWCA 146
15 July 2020 - Macfarlan JA, McCallum JA
In sum: The Court of Appeal dismissed an appeal from a decision in the Supreme Court, which in turn was an appeal from a decision in the Occupational Division of NCAT. In doing so, the Court made comments about the power of the Tribunal to take into account an applicant’s “spent convictions” when considering an application for reinstatement, as opposed to an application for administrative review.
Facts: This was an application by Dr Vito Zepinic for leave to appeal from a decision of N Adams J in the Supreme Court. By that judgment her Honour dismissed an appeal by Dr Zepinic from a decision in the Occupational Divison of NCAT refusing to make an order under s 163B of the Health Practitioner Regulation National Law (NSW) (the National Law) reinstating him as a psychologist.
N Adams J’s was summarised in the February 2020 version of this bulletin.
Held (refusing leave to appeal):
(i) Dr Zepinic made a number of arguments about the jurisdiction of NCAT and statements made by the primary judge, each of which was rejected (see [10]-[13]).
(ii) Dr Zepinic put an additional argument to the Court of Appeal which he did not put to the primary judge. This was that NCAT erred in having regard to his 2008 convictions because they were “spent” by reason of the provisions of the Criminal Records Act 1991 (NSW). Section 12 of that Act provides that spent convictions are not required to be disclosed and that questions concerning a person’s criminal history are taken to refer only to convictions of the person which are not spent ([14]).
(iii) Section 16(1) however provides that s 12 does not apply to proceedings or decisions of a court, including a tribunal like NCAT ([15]).
(iv) The Court of Appeal and High Court have previously held that the s 16 exception does not apply to a tribunal undertaking a merits review in relation to an administrative decision-maker who was bound by the Criminal Records Act: Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 36; Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 ([16]).
(v) However, the NCAT proceedings in this case involved the exercise of original jurisdiction to make an order for reinstatement, and were not an appeal from, or merits review of, an administrative decision ([16]).
(vi) Further, ss 77 and 79 of the National Law require that an applicant for registration to disclose his or her criminal history, and that the National Board check an applicant’s criminal history, both noting that “criminal history law” (including the Criminal Records Act) does not apply to these requirements. Clearly, information obtained under these provisions, including spent convictions, may be taken into account by the Board in making a registration decision, and it follows that NCAT can take the same information into account when considering a reinstatement application ([17]).
(vii) As it was concluded that Dr Zepinic did not have any arguable basis for challenging the primary judge’s decision, his application for leave to appeal was dismissed with costs ([18]).
Read the decision on the NSW Caselaw website.
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| Gardiner v Laing O’Rourke Australia Construction Pty Ltd [2020] NSWCA 151
23 July 2020 - Basten JA, Leeming JA, Emmett AJA
In sum: The Court of Appeal allowed an appeal from a decision of the President of the Workers Compensation Commission, on the basis that a settlement previously obtained under the Anti-Discrimination Act 1977 (NSW) (the AD Act) did not preclude recovery of compensation for a workplace injury under the Workers Compensation Act 1987 (NSW) (the WC Act).
Facts: The appellant, Dr James Gardiner, was a former employee of the respondent. Following the termination of his employment, Dr Gardiner wrote to the President of the Anti-Discrimination Board complaining of discrimination on the grounds of disability, and victimisation, in the course of his employment. Following a conciliation conference, the parties reached a settlement agreement requiring payment of $29,412 to the appellant, together with $4,440 for his legal costs. The terms of the settlement were set out in a Deed of Release and Confidentiality (the Deed).
Prior to the settlement of his discrimination complaint, Dr Gardiner also lodged a claim for compensation under the WC Act, on the basis that he had suffered aggravation, acceleration, exacerbation or deterioration of a psychological condition in the course of his employment.
An arbitrator at the Workers Compensation Commission dismissed the claim on the basis that Dr Gardiner had already received a payment of “damages” awarded “in respect of” the same injury, such that the claim was precluded by s 151A(1) of the WC Act. An appeal to the President of the Workers Compensation Commission was dismissed.
Dr Gardiner then brought an appeal to the Court of Appeal, limited to a point of law, pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).
Held (allowing the appeal, setting aside the President’s order and the arbitrator’s determination, and remitting the matter to the Workers Compensation Commission):
(i) The appeal raised questions of law, being the operation of the Deed and the proper construction of s 151A(1) of the WC Act (Basten JA at [7]; Leeming JA at [75]; Emmett AJA at [93]).
(ii) The definition of “damages” in s 149 of the WC Act, which accords with the general principle governing the character of payments made pursuant to a settlement, requires an analysis of what was being compromised. Therefore, it was necessary to identify whether the claims compromised by the Deed were “in respect of an injury” (Leeming JA at [82]-[83]; Emmett AJA at [97]).
(iii) The proper construction of the Deed negated any possibility that the payment by way of “damages” was intended to settle any claim for workers’ compensation or work injury damages which might be available (Basten JA at [66]; Leeming JA at [85]; Emmett AJA at [101]).
(iv) The primary, if not the sole, purpose of the settlement was to provide a final resolution of the complaints of unlawful discrimination under the AD Act. The recitals expressly recognised that the parties were aware of, and did not intend to resolve, any claim the appellant might have “pursuant to any applicable [w]orkers’ [c]ompensation legislation”. The operative provisions related to the settlement of the anti-discrimination complaint, and had express exclusions in relation to workers’ compensation legislation (Basten JA at [59], [63]; Leeming JA at [85]; Emmett AJA at [101]).
(v) The legislative purpose of s 151A is to ensure that a worker does not get workers’ compensation and damages with respect to the one injury. The workers’ compensation acts are concerned with “damages” payable in respect of an injury caused by the negligence or other tort of the employer, and not amounts recoverable in satisfaction of a liability created by an extraneous statutory scheme, such as the AD Act (Basten JA at [18], [36], [44]).
(vi) A purposive construction of the two schemes of regulation does not support the proposition that a payment resulting from a complaint of discriminatory conduct, even if the discrimination gave rise to a personal injury, should foreclose any claim for workers’ compensation or work injury damages (Basten JA at [51]).
(vii) Similarly (and relevantly to the work of NCAT), there would not be an arguable basis for the foreclosure of relief for discriminatory conduct if workers’ compensation were to be obtained first (Basten JA at [51]).
Read the decision on the NSW Caselaw website.
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| | Decisions of Interest Bulletin
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| | Left Bank Investments Pty Ltd v Ngunya Jarjum Aboriginal Corporation [2020] NSWCA 144
CORPORATIONS – Aboriginal corporation – implied actual authority – where CEO of corporation not director – where CEO instructed solicitor to accept offer of new lease – where Board of Aboriginal corporation had not in fact accepted offer of new lease – where Board had not delegated authority to CEO to bind it to new lease – whether CEO had implied actual authority to bind Aboriginal corporation
CORPORATIONS – Aboriginal corporation – ostensible authority – whether CEO held out by Aboriginal corporation as having authority to accept offer of new lease – distinction between agent’s authority to communicate Board’s decision and authority to make decision – whether CEO had ostensible authority to bind Aboriginal corporation
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| Lepcanfin Pty Ltd v Lepfin Pty Ltd [2020] NSWCA 155
CONTRACT – dispute resolution clauses – expert determination clause – separate Expert Determination Agreement entered into – whether expert exceeded her mandate in determining that clause in a Development Deed was a penalty – construction of ambit of separate Expert Determination Agreement – when one party to dispute initially accepted that penalty issue fell within scope of Expert Determination Agreement and then resiled from that fact – whether party estopped from resiling from initial position – whether other issues sought to be raised in Commercial List proceedings but which had not been the subject of expert determination could be litigated – whether primary judge erred in staying litigation of those issues.
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| Gardiner v Laing O’Rourke Australia Construction Pty Ltd [2020] NSWCA 151
DEEDS – deed of release – construction – express terms of deed – whether deed of release relating to the settlement of complaints relating to discriminatory conduct discharged liabilities arising out of workers’ compensation legislation – where entitlement to sue under workers compensation legislation expressly preserved
WORKERS' COMPENSATION – entitlement to compensation – exclusions – payment to settle complaint under Anti-Discrimination Act 1977 (NSW) – whether payment constituted “damages” under Workers Compensation Act 1987 (NSW), s 149 – operation of Workers Compensation Act, s 151A, s 280B
WORDS AND PHRASES – “damages”, “monetary compensation” – Workers Compensation Act 1987 (NSW), ss 149, 151A |
| Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126
HUMAN RIGHTS – discrimination – definition of sexual harassment in s 28A of Sex Discrimination Act 1984 (Cth) – where Appellant submitted unwanted emails to Respondent were romantic – where Appellant entered Respondent’s bedroom on work trip dressed in underwear – whether Appellant’s conduct was of a ‘sexual nature’
DAMAGES – assessment of general damages – whether trial judge’s award manifestly excessive – whether authorities prior to Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 relevant – whether trial judge erred by taking into account objects of Sex Discrimination Act 1984 (Cth)
DAMAGES – assessment of aggravated damages – where Appellant threatened Respondent to prevent her from making a complaint – where Appellant obtained confidential information acting as Respondent’s legal representative in unrelated mediation – where Appellant used this information in defence at trial – whether this conduct could support award of aggravated damages |
| | 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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