| | | | | NCAT Legal Bulletin Issue 8 of 2019
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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 of the Legal Bulletin features summaries of recent decisions from the High Court of Australia and the Supreme Court of New South Wales (the last involving an appeal from a decision of an NCAT Appeal Panel):
- Commissioner of Taxation v Sharpcan Pty Ltd [2019] HCA 36
- The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35
- Vella v Commissioner of Police (NSW) [2019] HCA 38
- Hacienda Caravan Park Pty Ltd v Dodge [2019] NSWSC 1296
In addition, it contains a summary of a recent decision of the Workers Compensation Commission, Prince v Seven Network (Operations) Limited [2019] NSWWCC 313. Although not binding on NCAT Members, this decision is significant because of its finding that a reality show contestant may be considered an “employee” of a television network for the purposes of the Workers Compensation Act 1987 (NSW) (an Act under which NCAT also has powers).
This bulletin also contains links to recent bulletins published separately by the Court of Appeal, including summaries of the following cases in New South Wales and other Australian appellate jurisdictions:
- DeBattista v Minister for Planning and Environment [2019] NSWCA 237
- Wigmans v AMP Ltd [2019] NSWCA 243
- Anderson v Commissioner of Highways [2019] SASCFC 119
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| Commissioner of Taxation v Sharpcan Pty Ltd [2019] HCA 36
16 October 2019 - Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ
In brief: The High Court unanimously allowed an appeal from the Full Court of the Federal Court of Australia concerning the tax deductibility under the Income Tax Assessment Act 1997 (Cth) (the ITA Act) of payments made to acquire gaming machine entitlements (GMEs) under the Gambling Regulation Act 2003 (Vic) (the GR Act).
Facts
Spazor Pty Ltd (the Trustee) was trustee of a trust and the respondent, Sharpcan Pty Ltd, was a beneficiary. In 2005, the Trustee purchased a hotel business containing 18 gaming machines. It did not purchase the machines themselves, but recouped a percentage of their profits from the authorised gaming operator. In 2009, the GR Act was amended to provide for all GMEs to be auctioned off directly to gaming venue operators. Under the GR Act, each GME gives the holder authority to operate one gaming machine in an approved venue in a designated region for 10 years. The Trustee acquired 18 GMEs and entered an agreement with the Minister for Gaming for payment of the purchase price by instalments. Payments were made in May 2010, August 2012, and quarterly thereafter until August 2016. In its income tax return for the 2011/2012 financial year, the Trustee claimed the purchase price, or one fifth thereof, as a deduction under s 8-1 or s 40-880 of the ITA Act (respectively). The appellant, the Commissioner of Taxation disallowed both claims ([3]-[7]).
On review, the Administrative Appeals Tribunal set aside the Commissioner’s decision, and a majority of the Full Federal Court dismissed the Commissioner’s appeal, on the basis that the purchase price was not an “outgoing of capital, or of a capital nature”, and was therefore deductible under s 8-1 ([10]-[12]). Alternatively, the Full Federal Court found that one fifth of the purchase price was deductible under s 40-880 because the purpose of the expenditure was to preserve (but not enhance) the value of the goodwill of the hotel business, and the value of the GMEs was solely attributable to their effect on goodwill ([14]).
High Court finding
The High Court allowed the Commissioner’s appeal, largely agreeing with the dissent of Thawley J in the Full Federal Court ([17]). Unanimously, it found there could be “no question” that the purchase price of the GMEs was incurred on capital account, and was therefore excluded from being tax deductible by s 8-1(2). Despite being paid in instalments, the payment was in the nature of a “once-and-for-all” outgoing for the acquisition of a capital asset of “enduring value”, necessary for the Trustee to generate income from gaming activities ([17]-[19]). The fact that the GMEs were for a duration of 10 years, and could be subject to further statutory changes (i.e. they were not “permanent rights”), did not prevent the acquisition from being one of an enduring advantage ([20]-[21]). The High Court referred to its previous decision in Sun Newspapers Lt v Federal Commissioner of Taxation (1938) 61 CLR 337 (per Latham CJ at 355), which said:
"When the words 'permanent' or 'enduring' are used in this connection it is not meant that the advantage which will be obtained will last forever. The distinction which is drawn is that between more or less recurrent expenses involved in running a business and an expenditure for the benefit of the business as a whole".
In these circumstances, the deferred payments in respect of the GMEs were not “in any sense in the nature of periodic licence fees” ([22]). The purchase price “was not recurrent expenditure”, but rather, “expenditure made once and for all with a view to bringing into existence an advantage of enduring benefit to the Trustee's mixed hotel business: the ability, albeit subject to some risk of earlier termination, lawfully to operate 18 gaming machines on the premises for up to ten years” (emphasis added) ([25]).
The four factors which the Full Federal Court highlighted as going to the expenditure being on revenue account, rather than capital account, were “not to the point” ([12], [17]). The High Court addressed each factor in turn.
First, it did not matter that the Trustee intended to fund the purchase price out of revenue generated by operating the GMEs. The evidence did not support such an intention, and if it did, it would only confirm that the Trustee expected the GMEs to generate significant income over time, and thus be of enduring advantage to the business. The High Court emphasised that “[t]he nature of a once-and-for-all outgoing for the acquisition of an asset is determined by the character of the advantage sought to be achieved by its acquisition, not by the source of funds with which it is purchased” ([26]).
Second, it was not significant, and the evidence did not establish, that the Trustee calculated the maximum amount it would spend on the GMEs based on a projection of the revenue they would likely generate over 10 years. Regardless of the considerations informing the
amount the Trustee was willing to pay, the price of the acquisition was a lump sum, payable (albeit in instalments) regardless of the amount of income that might actually be earned from the GMEs ([27]).
Third, it was immaterial that the Trustee did not purchase the GMEs in order to acquire a new business, or a new and distinct aspect of business, but rather to overcome the obstacle created by the legislative changes to continue operating as it did before ([33]). In classifying the acquisition of the GMEs as an “enduring advantage”, the High Court noted that the “identification of what (if anything) is to be acquired by an outgoing ultimately requires a counterfactual, not an historical, analysis: specifically, a comparison of the expected structure of the business after the outgoing with the expected structure but for the outgoing, not with the structure before the outgoing” ([33]).
Fourth, the Full Federal Court’s reasoning that the Trustee had “no commercial choice” in the circumstances but to purchase the GMEs, and that this contributed to its conclusion that the purchase price was incurred on revenue account, was “misplaced”. The possibility that the Trustee, but for the acquisition of the asset, might have suffered a substantial reduction in income had no bearing on the determination of whether the expenditure was incurred on capital account or revenue account ([41]-[42]).
The High Court also rejected the claim for a lesser deduction under s 40-880, holding that the evidence did not establish that the purpose of purchasing the GMEs was to preserve, but not enhance, the goodwill of the business. Moreover, the value of the GMEs to the Trustee was not solely attributable to their effect on goodwill. Given their capacity to generate gaming income and to be sold and transferred to other venue operators, the GMEs “had a value quite apart from any contribution they may have made to goodwill” ([49]-[52]).
Read the decision on the High Court of Australia website.
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| The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35
16 October 2019 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
In brief: The High Court allowed three appeals from the New South Wales Court of Criminal Appeal (the CCA) regarding the interpretation of s 45(1)(a) of the Crimes Act 1900 (NSW), which prohibits female genital mutilation (FGM). Overall, the majority of the High Court took a broad approach to the definition of FGM.
The majority (Bell and Gaegler JJ dissenting) found that the term “otherwise mutilates” in s 45(1)(a) does not bear its ordinary “grammatical or literal” meaning, but rather an extended meaning that takes account of the context of FGM. Accordingly, contrary to the view of the CCA and the respondent’s submissions, the offence under s 45(1)(a) is not limited so as to require some imperfection or permanent damage to be caused, but is broad enough to encompass the cutting or “nicking” of the clitoris of a female child. This construction, advanced by the Crown, was found to “best promote the purpose or object of prohibiting such procedures generally”, and was reached having regard to extrinsic materials, including the 1994 report by the Family Law Council on the practice of FGM in Australia ([13]).
Further, the majority found that the term “clitoris” should be construed broadly, having regard to the context and purpose of s 45(1)(a). Accordingly, the majority agreed with the trial judge that the term “clitoris” should be seen as encompassing “the clitoral hood or prepuce”. The purpose of the section was “to prohibit all forms of injurious female genital mutilation”, procedures which are “generally not carried out by surgeons or with any precision”. This context and purpose, the majority found, “does not suggest an intention that any narrow or technical meaning be applied so as to exclude anatomical structures that are closely interrelated with the labia majora, labia minora or clitoris” ([67]).
Read the decision on the High Court of Australia website.
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| Vella v Commissioner of Police (NSW) [2019] HCA 38
6 November 2019 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
In brief: The High Court answered questions in a special case on the validity of s 5(1) of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) (the SCPO Act). By majority (Gageler and Gordon JJ dissenting), the Court held that the section is valid, as it is not inconsistent with or prohibited by Chapter III of the Commonwealth Constitution.
Facts
Section 5(1) of the SCPO Act provides for the making of a “serious crime prevention order” (preventive order) against a person over the age of 18 who has been convicted of a serious criminal offence or been involved in serious crime-related activity for which he or she has not been convicted. Section 6 provides for the content of such a preventive order, which may include “such prohibitions, restrictions, requirements and other provisions as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities” ([2]-[4], [21]).
The plaintiffs in this case were alleged to be members of an organisation known as “the Rebels” – described in the Police Commissioner’s summons as an “Outlaw Motor Cycle Gang”. In October 2018, the Commissioner commenced proceedings in the Supreme Court of New South Wales seeking preventive orders against the plaintiffs under s 5(1). The plaintiffs challenged the validity of s 5(1) on the basis that it is incompatible with the institutional integrity of the courts, relying on the principles in Kable v Director of Public Prosecutions (NSW) (1996) (Kable) ([25]-[28]).
High Court finding
The High Court majority (comprised of Bell, Keane, Nettle and Edelman JJ, with Kiefel CJ agreeing) set out the six steps a court is required to take before making a preventive order against a person under s 5(1) of the SCPO. These include (amongst others) making an assessment of whether there is a real likelihood that the person will be involved in serious criminal activity, and whether the facts establish reasonable grounds to believe that the potential order would prevent, restrict or disrupt serious crime-related activities.
On reviewing these steps, the majority found that the SCPO Act does not involve the exercise of non-judicial power, and is not incompatible with the institutional integrity of the District or Supreme Court, because ([23]):
“it deploys open-textured phrases which, properly interpreted, give rise to rules requiring the court to conduct an assessment of future risk and to balance criteria within a wide degree of judicial evaluation before making a preventive order. In an area necessarily involving considerable uncertainty it is not antithetical to the judicial process for Parliament to require the courts to interpret and to apply open-textured norms rather than “striving for a greater degree of definition than the subject is capable of yielding”.” (emphasis added)
The majority noted that, since the High Court’s decision in Kable, it has held that analogous preventive order regimes did not infringe the Kable principles, including preventive orders concerning terrorism, sexual offenders and organised crime, which similarly required courts to conduct a “balancing exercise” ([22], [58]-[75]) (see, e.g. Thomas v Mowbray (2007) 233 CLR 307 (Thomas v Mowbray); Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Wainohu v New South Wales (2011) 243 CLR 181; Condon v Pompano Pty Ltd (2013) 262 CLR 38).
Broadly, the majority observed (at [56]):
“Although it is only extreme legislation that will substantially impair the institutional integrity of a State court, the boundaries of the Kable principle are not sharp. The contours of the categories where State legislation will substantially impair a court's institutional integrity will necessarily emerge slowly. But the categories must develop in a principled, coherent, and systematic way rather than as evaluations of specific instances.” (emphasis added)
Analogously to the impugned legislation in Thomas v Mowbray, the majority found that ss 5 and 6 of the SCPO Act, even when deconstructed into six steps, provide “broadly expressed criteria” which leave “significant room for judicial evaluation”. In this context, the process of balancing the magnitude of a risk and its likelihood of occurring, and determining the reasonableness and appropriateness of “alleviating precautions”, is “not alien to judicial power”, but is similar to exercises in which courts engage every day (for example, in assessing whether a duty of care has been breached, or considering applications for interim or interlocutory injunctions) ([85]-[89]).
In dissent, Gageler and Gordon JJ found that the provisions of the SCPO Act do involve a conferral of non-judicial power on the District and Supreme Courts, incompatible with their institutional integrity, and contrary to the principles in Kable ([173], [187], [201]-[202]). In effect, Gageler J found, the judiciary is enlisted under s 5(1) to “perform a personalised legislative function at the behest of the executive” ([179]). His Honour expressed concern that, as the process of making a preventive order under the SCPO Act is “judicialised”, so the “distinctive character of the judiciary as the constitutional arbiter of disputes about rights between the citizen and the State will become increasingly less distinct”, and incrementally, “the judiciary will be drawn ever more deeply into a process in which institutional boundaries are blurred and by which its institutional independence is diminished” ([180]).
Read the decision on the High Court of Australia website.
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| | Supreme Court of New South Wales |
| Hacienda Caravan Park Pty Ltd v Dodge [2019] NSWSC 1296
15 October 2019 - McCallum J
In brief: The Supreme Court dismissed the appeal from a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT or the Tribunal), but for partly different reasons than those given by the Appeal Panel. The appeal concerned whether a lease under the Residential Parks Act 1998 (NSW) (the RP Act), subsequently the Residential (Land Lease) Communities Act 2013 (NSW) (the RLLC Act), could be inferred from the conduct of owner and occupant.
Facts
The appellant (Hacienda) is the owner and operator of a caravan park and camping ground. In 2010, the respondent (Mr Dodge) purchased a demountable home on site 201 of the caravan park (the site) ([3]-[4]). Mr Dodge and his wife intended to live permanently on the site, and accordingly requested that Hacienda enter a “residential site agreement” under the RP Act. Hacienda refused, instead providing Mr Dodge with an “occupation agreement” under the Holiday Parks (Long-term Casual Occupation) Act 2002 (NSW) (the LTCO Act). That Act governs agreements where the occupant has a dwelling installed on a caravan park site, but the dwelling is not the occupant’s principal residence. The form of agreement offered to Mr Dodge contained terms purporting to prevent permanent occupation of the site, including preventing Mr Dodge and his wife from occupying the site for more than 28 nights in a row, or more than 180 nights each year, without permission from Hacienda ([4]). Mr Dodge refused to sign the agreement ([5]).
In the 8 years following, no written agreement was ever entered into between the parties. However, Mr Dodge and his wife continuously occupied the demountable home on the site and paid rent to Hacienda. They never sought permission to occupy the site for more than 28 consecutive nights ([7]).
In 2015, the RP Act was repealed and replaced by the RLLC Act. The transitional provisions contemplated that an agreement entered into under the RP Act would remain valid under the RLLC Act. Mr Dodge applied to NCAT for an order under s 26(4) of the RLLC Act requiring Hacienda to enter into a written site agreement. The application was successful, and was upheld on appeal to the Appeal Panel.
Hacienda appealed to the Supreme Court ([8]-[12]).
The appellant’s grounds of appeal, both before the Appeal Panel and the Supreme Court, were (1) that there was no agreement between itself and the respondents in respect of the site, or (2) alternatively, that the form of agreement was limited to an occupation agreement under the LTCO Act.
Supreme Court decision
(1) The “no agreement” ground
In the Supreme Court, McCallum J rejected Hacienda’s submission that there was no agreement with Mr Dodge in respect of the site. Her Honour affirmed the Appeal Panel’s distinction of Mr Dodge’s situation from a previous case, Hacienda Caravan Park Pty Ltd v Howarde [2016] NSWCATAP 1 (Howarde). In that scenario, the respondents had purchased a home on a site in a park owned by Hacienda, and similarly refused to sign an occupation agreement under the LTCO Act. However, the respondents never actually occupied the site, and never paid rent to the appellant. In those circumstances, the Appeal Panel found there was no agreement between the parties. However, McCallum J emphasised the well-established common law principle, acknowledged in Howarde, that “the absence of an articulated offer and acceptance is not determinative; a contract can also be inferred from the conduct of the parties” ([43]). In Mr Dodge’s circumstances, where rent had been accepted for over 8 years and there had been no request for Mr Dodge and his wife to vacate the site, McCallum J held that the finding of a binding contract between the parties was “plainly right” ([44]).
(2) The “proper construction” ground
McCallum J, like the Appeal Panel, rejected Hacienda’s submission that the only form of agreement capable of acceptance by Mr Dodge was an occupation agreement under the LTCO Act. However, her Honour disagreed with the conclusion of the Tribunal and Appeal Panel that the relevant form of agreement between the parties was a “moveable dwelling agreement” under the RP Act. Rather, her Honour found the “correct analysis” was that Mr Dodge instead had a “residential site agreement” under the RP Act and that “he is taken to have a site agreement under the [RLLC] Act, on that basis” ([17], [74]).
At first instance, the Tribunal had decided against the existence of a residential site agreement on the basis that Mr Dodge never had the approval of Hacienda to occupy the premises as his principal place of residence, and the Appeal Panel upheld that decision ([58]). Crucial to the Appeal Panel’s finding was its view that certain “notes” contained in the schedules to the Residential Parks Regulation 2006 (NSW) (the RP Regulation) were not, as a matter of statutory construction, part of the regulation itself. McCallum J found that the Appeal Panel erred in this respect, and that, on a proper construction of the RP Act and in light of s 35(4)(b) of the Interpretation Act 1987 (NSW), the notes should be taken to be part of the regulation in the present case ([54]-[56]). Relevantly, Schedule 3 to the RP Regulation, being the standard form for a moveable dwelling agreement, contained a note advising that this form was to be used for rent of a “site for the placement of a caravan that is owned by the resident and does not have a rigid annexe” (emphasis added) ([52]). A similar note preceding Schedules 1 and 2 to the RP Regulation, the standard forms for residential site agreements, advised that these forms were to be used for rent of a “site for the placement of a caravan that is owned by the resident and has a rigid annexe” (emphasis added) ([57]). Mr Dodge’s demountable home included such a rigid annexe ([53]).
Accordingly, McCallum J reached the “tentative conclusion” that the agreement between Mr Dodge and Hacienda was a residential site agreement, not a moveable dwelling agreement ([59]). Viewed side by side, her Honour found, the two notes appeared to cover the field, evincing a “clear indication” that the RP Act contemplated that persons in Mr Dodge’s position (caravan park residents who own a demountable home) would have a residential site agreement ([58]). As this proposition was not argued at the appeal, McCallum J afforded the parties an opportunity to make submissions on the possible existence of a residential site agreement. In particular, these focused on whether Hacienda, expressly or impliedly, gave “approval” for Mr Dodge to continuously occupy the site, as required by the RP Act ([58]-[60]).
After considering these submissions, McCallum J found the “correct legal conclusion” to be that, on the facts found by the Tribunal, Hacienda’s conduct was inconsistent with the existence of an occupation agreement, and entirely consistent with the existence of a residential site agreement ([74]).
Her Honour rejected Hacienda’s submission that an occupation agreement was “the only agreement capable of acceptance or performance”. Not only did Mr Dodge clearly reject the occupational agreement offered to him at the start of his residence, but this contention ignored the possibility that another form of contract could be inferred from the subsequent conduct of the parties ([69]).
McCallum J further rejected Hacienda’s argument, regarding its conduct towards Mr Dodge, that there was “no reason for Hacienda to ask Mr Dodge to leave the Park and no evidence that Hacienda knew it was Mr Dodge’s primary residence” so as to imply its acceptance of that situation ([70]). She concluded ([72]):
“There cannot be any genuine dispute as to whether Hacienda knew Mr Dodge and his wife occupied the premises as their principal place of residence [….] [T]he Tribunal found […] that they do in fact occupy the premises on that basis and Hacienda has not challenged that finding. As owner of the Park, Hacienda would be taken to have constructive knowledge of that fact.” (emphasis added)
Accordingly, not only did Mr Dodge’s conduct indicate that he did not accept an occupation agreement, Hacienda’s conduct indicated its tacit acceptance of a residential site agreement under the RP Act, involving full-time occupation of the site by Mr Dodge. Under the relevant transitional arrangements, this agreement remained valid under the new RLLC Act.
McCallum J affirmed the Tribunal’s original order that the parties enter into a written agreement, but noted that the appropriate form was a residential site agreement as set out in Schedule 1 to the Residential (Land Lease) Communities Regulation 2015 (NSW).
Read the decision on the Supreme Court of New South Wales website. |
| Workers Compensation Commission
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| Prince v Seven Network (Operations) Limited* [2019] NSWWCC 313
25 September 2019 - C Burge, Arbitrator
In brief: The Workers Compensation Commission (the Commission) decided in favour of the applicant, finding that, as a contestant on the respondent’s reality television show “House Rules”, the applicant was a worker employed by the respondent within the meaning of s 4 of the Workers Compensation Act 1987 (NSW) (the WC Act). Accordingly, the Commission ordered the respondent to pay the applicant’s reasonably necessary medical and treatment expenses, pursuant to ss 9 and 60 of the WC Act, arising from the psychological/psychiatric injury suffered by the applicant in the course of her employment.
The Commission rejected the respondent’s submissions that no service was provided by the applicant to the respondent ([93]). The contract between the parties required the applicant to engage in home renovations, which were the basis of the respondent’s television program. Further, the applicant was required to give up her time and her previous job, and to relocate for the course of filming, while the respondent clearly “derived benefit from the applicant giving her time and engaging in the home renovations for the show” ([95]).
Having decided that the applicant provided a service to the respondent, the Commissioner further found that the relationship between the applicant and the respondent was one of “employee” and “employer” – that is, the applicant was not an “independent contractor”, carrying on a business of her own under a contract of services ([96], [112], [116]-[119]). The Commissioner accepted that the “principal criterion” in making such a distinction remains the employer’s “right of control of the person engaged”, however, it noted this is not the sole determinant ([102]). In recent times, courts have favoured consideration of a variety of criteria including, amongst other things, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the deduction of income tax, the right to delegate work, the right to dictate hours and place of work, and the right to exclusive services of the person engaged (Stevens v Brodribb Sawmilling Companty Pty Ltd [1986] HCA 1; (1986 160 CLR 16, cited at [103]). It is important to remember that it is the “totality” of the relationship that must be considered – these factors are merely a guide ([107], [112]).
In this case, the Commission accepted the applicant’s submissions that the respondent had a great deal of control over the applicant’s activities whilst engaged on the show ([115]). Overall, the Commission found the “relevant indicia” to be “overwhelmingly in favour of the relationship giving rise to the applicant being a worker” ([119]). In particular, the Commissioner set out the following factors as being indicative of an employment relationship between the parties ([117]):
(a) The rate of remuneration was set by the respondent;
(b) The applicant was an integral part of the show and essential to the product and business in which the respondent was engaged;
(c) The respondent had exclusive use of the applicant for every hour of every day during which the show was being filmed;
(d) The respondent had the power to veto the applicant wearing certain clothes, and she was unable to wear any items which displayed business or brand names;
(e) The rules of the show provided the applicant was a public face of the respondent’s business;
(f) The respondent paid the applicant an allowance for her weekly expenses;
(g) The applicant took no risk as an entrepreneur in the running of her own business. Rather, she was paid a weekly rate set by the respondent;
(h) The activity carried out by the applicant (and the other contestants) was for the benefit of the respondent’s business, rather than any enterprise of her own;
(i) The applicant commenced and completed tasks when directed by the respondent;
(j) The respondent provided tools and materials for the applicant to use;
(k) The applicant employed no one else to carry out the work for them, and to the extent she retained tradespeople, they were approved by the respondent and the cost of them was taken from a budget allocated to the applicant by the respondent.
The Commissioner acknowledged that the respondent did not withhold income tax, and the applicant was not entitled to annual leave, sick leave or superannuation, however, these factors were not determinative ([118]).
Having found an employment relationship between the applicant and respondent, the Commission found that the applicant suffered a psychological/psychiatric injury through actions of the respondent in the course of that relationship. These included the respondent editing the footage on the reality show to portray the applicant in a negative light ([122]), failing to moderate the content and comments of its social media platforms ([123]-[124]), and facilitating an environment in which there was a “breakdown of relationships” between the applicant and other contestants ([127]-[128]). The fact that each of these factors arose out of or in the course of the employment relationship satisfied the Commission that, on the balance of probabilities, the applicant’s employment with the respondent was the main contributing factor to the applicant’s injury ([128]).
*Although not binding on NCAT members, this decision is significant because of its finding that a reality show contestant may be considered an “employee” of a network for the purposes of the WC Act (an Act under which NCAT also has powers).
Read the decision on the Workers Compensation Commission website.
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| | | The Court of Appeal publishes a regular bulletin containing summaries of its latest decisions of interest, as well as those of other appellate courts in Australia and the Asia Pacific. Below are links to several such decisions from recent bulletins: |
| DeBattista v Minister for Planning and Environment [2019] NSWCA 237
ENVIRONMENT AND PLANNING – building control – council consent and approval – whether the Council’s processes in determining whether to amend a Local Environmental Plan are of a political and policy nature only, precluding the Land and Environment Court from intervening – whether there was a reasonable apprehension of bias that should preclude the Council from proceeding with the Planning Proposal for the amendment of the Local Environmental Plan
APPEALS – whether the primary judge demonstrated any error in failing to make an order requiring the Council to withdraw the Planning Proposal for the amendment of the Local Environmental Plan – whether the proceedings in the Land and Environment Court have been the subject of final disposition
Read the decision on the NSW Caselaw website.
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| Wigmans v AMP Ltd [2019] NSWCA 243
CIVIL PROCEDURE – representative proceedings – multiplicity of proceedings – competing proceedings brought in single forum by various plaintiffs against the same defendant – where the plaintiffs sought permanent stays of one another’s proceedings – where stay granted against all but the last-commenced proceeding – whether bringing subsequent proceedings constitutes an abuse of process
Read the decision on the NSW Caselaw website.
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| Anderson v Commissioner of Highways [2019] SASCFC 119
REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT
Read the decision on the Supreme Court of South Australia website.
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| | | 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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