NCAT Appeal Panel Decisions Digest Issue 1 of 2023 |
The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
This issue features summaries of the following Appeal Panel decisions handed down in January 2023:
BVV v Commissioner of Police [2023] NSWCATAP 6: The Tribunal did not err in refusing an application for the Senior Member to disqualify herself in circumstances where the Senior Member had previously represented a large government agency in unrelated proceedings on separate issues, including after being appointed as a part-time Senior Member of the Tribunal. That fact in itself did not give rise to an association that would potentially require disqualification and there was no reasonable apprehension of bias. Kary v B’nai B’rith Retirement Villages Limited [2023] NSWCATAP 5: The Appeal Panel upheld an appeal and remitted the matter to the Tribunal for both parties to adduce further evidence on whether, under the Retirement Villages Act 1999 (NSW) (RV Act) s 54, the relevant village rule is “unjust, unconscionable, harsh or oppressive” per se or as it applies to the resident, rather than whether the resident’s belief was reasonable.
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. Does a history of representing a party, including after appointment to the Tribunal, demonstrate a reasonable apprehension of bias? |
BVV v Commissioner of Police [2023] NSWCATAP 6 Administrative and Equal Opportunity Division I Coleman SC ADCJ, Principal Member; T Simon, Principal Member
In sum: The mere fact of a Senior Member’s previous representation of a large government agency in unrelated proceedings on separate issues does not in itself give rise to an association that would potentially require disqualification. In such circumstances, there is no need to disclose the possibility of association.
Facts: The appellant (BVV) made a complaint under the Privacy and Personal Information Protection Act 1998 (NSW) (PIPP Act) and subsequently applied to NCAT under the PIPP Act s 55. During the hearing in April 2021, BVV made an application for the Senior Member to disqualify herself on the basis of apprehended bias, where the Senior Member had appeared as counsel for the respondent between 2012 and 2017 (including after being appointed as a part-time Senior Member to the Tribunal) and where the Senior Member had been instructed in a matter by Henry Davis York in 2011 and a witness in the proceedings had previously been employed by Henry Davis York. The application was refused (Disqualification Decision). Following the conclusion of the hearing, BVV made a second request that the Senior Member disqualify herself on 13 July 2021 and the Tribunal refused to conduct an oral hearing for the second application. Reasons for the Disqualification Decision were given on 17 August 2021. BVV appealed the decisions.
Held (refusing the appeal): (i) It was correct for the Senior Member to find that there was no reasonable apprehension of bias. Having previously represented the respondent (a large government agency) in unrelated matters which did not raise similar issues is not unusual. The mere fact that the Senior Member had represented the respondent does not give rise to an association that would potentially lead to disqualification. Further, and consistent with Ebner v Official Trustee in Bankruptcy [2000] HCA 63, the possibility of association was not sufficiently serious to oblige the Senior Member to raise the previous association. BVV failed to demonstrate how this association would or could impact the Senior Member’s decision-making in this instance (at [29], [31]).
(ii) The Appeal Panel found that any delay in giving reasons for the Disqualification Decision (and the transcript did not indicate BVV had explicitly sought reasons) did not in itself give rise to a question of law or a denial of procedural fairness. BVV was unable to demonstrate any consequences that arose from any delay and failed to demonstrate how any delay was unfair (at [23], [60]).
(iii) There was no constructive failure to exercise jurisdiction by not making a finding with regard to the second request for the Senior Member to disqualify herself. The substance of the second request was that no reasons had been provided for the initial refusal, but those reasons were ultimately provided. No question of law arose because no basis was demonstrated that the second request could or should have had any material effect on the proceeding (at [34], [37]). |
2. Is a village rule to be assessed under the Retirement Villages Act 1999 (NSW) s 54 as “unjust, unconscionable, harsh or oppressive” with regard to the resident’s reasonable belief? If no, how should it be assessed? |
Kary v B’nai B’rith Retirement Villages Limited [2023] NSWCATAP 5 Consumer and Commercial Division – Retirement Villages D Charles, Senior Member; D Ziegler, Senior Member
In sum: Village rules are to be assessed as “unjust, unconscionable, harsh or oppressive” per se or as they apply to the resident. The Tribunal at first instance erred, assessing the village rule with regard to whether the resident’s belief that the village rule was harsh or oppressive was reasonable, and in light of other residents’ expectations. The matter was remitted to the Tribunal.
Facts: The appellant (resident) made an application under RV Act s 54(2)(b) to modify the operation of a village rule which prohibited certain pets to allow the resident to keep up to two budgerigars under specified conditions. The Tribunal dismissed the application, having regard to whether the resident’s belief that the village rule was “unjust, unconscionable, harsh or oppressive” was reasonable and the resident’s obligation to other residents in the retirement village.
Held (allowing the appeal): (i) The Appeal Panel held that the purpose of s 54 of the RV Act is remedial and to provide retirement village residents and operators with relief where village rules are invalid or unjust, unconscionable, harsh or oppressive. There must be work for s 54(2) to do. This purpose can only be served if the village rule, per se or as it applies (either to the resident, some or all residents), is in fact unjust, unconscionable, harsh or oppressive, and any order made by the Tribunal must be capable of remedying this. There were errors on questions in law in not considering and making findings as to whether, on the material before it, the village rule was, in fact, harsh or oppressive as it applied to the resident (at [41], [42], [43]).
(ii) The reasoning of the Tribunal in taking into account s 66 of the RV Act and the expectations of other residents should not preclude findings of unjustness, harshness or oppressiveness. They are matters for consideration but are not determinative (at [44]).
(iii) The Tribunal properly distinguished Cooper v The Owners – Strata Plan 4633 [2020] NSWCA 250, however, the Appeal Panel accepted that the case provides general guidance as to the meaning of “harsh, unconscionable or oppressive” when the Tribunal considers if a village rule falls within this (at [47], [48], [49]). |
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Young v Bannister [2023] NSWCATAP 1 Consumer and Commercial Division – Tenancy Decision of: G Ellis SC, Senior Member; J McAteer, Senior Member Catchwords: APPEAL – No question of principle |
Shapkin v The University of Sydney [2023] NSWCATAP 2 Consumer and Commercial Division – Tenancy Decision of: D Charles, Senior Member; D Ziegler, Senior Member Catchwords: APPEALS – referral of question of law to the Supreme Court – application for summons – adequacy of reasons – procedural fairness – whether decision against the weight of evidence – new evidence – LEASES AND TENANCIES – whether agreement exempt from Residential Tenancies Act 2010 because resident is a boarder or lodger – whether premises exempt from Residential Tenancies Act 2010 because premises are used or intended to be used principally as a hall of residence for students of an educational institution |
Coolah Home Base Pty Ltd v Tait [2023] NSWCATAP 3 Consumer and Commercial Division – Retirement Villages Decision of: A Suthers, Principal Member; G Burton SC, Senior Member Catchwords: REAL PROPERTY – Retirement Villages – Residential (Land Lease) Communities – nature of relief sought – where costs can be awarded |
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Kary v B’nai B’rith Retirement Villages Limited [2023] NSWCATAP 5 Consumer and Commercial Division – Retirement Villages Decision of: D Charles, Senior Member; D Ziegler, Senior Member Catchwords: RETIREMENT VILLAGES – extension of time for lodgement of appeal – nature and scope of Tribunal’s powers in respect of orders affecting Village Rules – whether a Village Rule is unjust unconscionable harsh or oppressive within s 54 – findings of fact required at a remitted hearing – appeal allowed |
BVV v Commissioner of Police [2023] NSWCATAP 6 Administrative and Equal Opportunity Division Decision of: I Coleman SC ADCJ, Principal Member; T Simon, Principal Member Catchwords: APPEAL – privacy and personal information protection – apprehended bias – s 18 (1) (a) of the Privacy and Personal Information Protection Act 1998 – summons – procedural fairness – adequacy of reasons |
Gold Emporium Pty Ltd t/as Cordony Constructions v Anderson [2023] NSWCATAP 7 Consumer and Commercial Division – Home Building Decision of: S Westgarth, Deputy President; R Titterton, Senior Member Catchwords: APPEAL – expert evidence – criticisms of the conduct of the expert and whether the expert evidence should be accepted – refusal to allow further evidence and whether there was procedural unfairness – whether leave to appeal should be granted in respect of findings of fact concerning defects |
Humphries v C J & D M Meyn t/a B & S Panels [2023] NSWCATAP 9 Consumer and Commercial Division – Motor Vehicles Decision of: K Rosser, Principal Member; P H Molony, Senior Member Catchwords: Appeal – question of law – assessment of damages under s 267(4) of the Australian Consumer Law – whether costs of sandblasting and repainting vehicle reasonably foreseeable loss when respray fails |
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McKerlie v Leeser [2023] NSWCATAP 11 Consumer and Commercial Division – Tenancy Decision of: M Harrowell, Deputy President; R Dubler SC, Senior Member Catchwords: PRACTICE AND PROCEDURE – leave to appeal interlocutory decision – principles applicable – no issue of principle or matter warranting grant of leave – PRACTICE AND PROCEDURE – referral of question to the Supreme Court – no suitable question posed – no reason to refer to such a question |
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Long v Secretary, Department of Education [2023] NSWCATAP 14 Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; E Bishop SC, Senior Member Catchwords: APPEAL – anti-discrimination – direct and indirect discrimination – allegation on the ground of sex – altruistic surrogacy leave – maternity leave – biological parent |
Donohoe v Eastwood [2023] NSWCATAP 15 Consumer and Commercial Division – Home Building Decision of: G Ellis SC, Senior Member; G Burton SC, Senior Member Catchwords: APPEAL – Failure to deduct balance of contract price in money order made in renewal proceedings |
Ugur v Public Guardian [2023] NSWCATAP 16 Administrative and Equal Opportunity Division Decision of: The Hon DA Cowdroy AO KC, Principal Member; E Bishop SC, Senior Member Catchwords: APPEAL – Administrative law – Guardianship – whether decision of Tribunal given on the papers was valid – whether procedural fairness was denied to the appellant – whether reasons were adequate – whether the decision was unreasonable – whether there were questions of law – whether there was findings of fact made in the absence of evidence |
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DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Appeal Panel Decisions Digest 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. |
