NCAT Appeal Panel Decisions Digest Issue 7 of 2022 |
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 July 2022:
Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2022] NSWCATAP 220: The appellants challenged a finding of the Tribunal that characterised the fortnightly payment of Medicare Benefits to individual doctors as “wages” for the purpose of s 35 Payroll Tax Act 2007. The appeal was dismissed. Moree Plains Shire Council v Howlett [2022] NSWCATAP 221: In considering factors for and against the disclosure of government information, potential breaches of privacy weighed more heavily against disclosure than the more general considerations of facilitating public debate and fostering government accountability. Snowtime Tours Pty Ltd v Lavecky [2022] NSWCATAP 219: A contract was frustrated, where the respondent was subject to unexpected government restrictions preventing travel. Whilst the ski accommodation remained operational, there was no onus on the respondent to break the law to uphold his contractual obligations.
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
|
|
1. Did the Tribunal err in its construction and application of ss 32 and 35, Payroll Tax Act 2007? |
Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2022] NSWCATAP 220 Administrative and Equal Opportunity Division Armstrong J, President; E Bishop, Senior Member
In sum: The Tribunal correctly found that there was a relevant contract (within the meaning of s 32 Payroll Tax Act) between doctors and the operator of the medical centre from which they practised and the payments by the operator to the doctors of the Medicare Benefits (after deduction of a 30% fee) were wages for the purpose of s 35 Payroll Tax Act. Leave to appeal was also refused, as the appellants were not allowed to run an argument on appeal which was forensically excluded at first instance.
Facts: Thomas and Naaz Pty Ltd (appellants) operated a business, comprising of three medical centres from which various doctors operated. In addition to a written agreement between the appellants and all the doctors, most of the doctors entered into an additional arrangement to have the appellant deal directly with Medicare to obtain the benefits assigned to them by the patients. This ensured that all Medicare payments were paid into a bank account in the name of the appellants and the doctors were paid in fortnightly intervals (70% was paid to the doctors and 30% was retained by the appellant). Payroll tax was levied by the respondent (Commissioner), with respect of the payments made by the appellants to the doctors. “Wages” for the purpose of payroll tax can extend to payments made under “relevant contracts”: s 35 Payroll Tax Act 2007 (PTA). The Tribunal found that there was a relevant contract (s 32, PTA), that none of the exemptions under s 32(2)(b) were available, therefore the fortnightly payments were deemed “wages” for the purpose of s 35, PTA. The appellant appealed this decision, arguing that Tribunal erred by finding the doctors provided services to the appellants as well as the public, therefore the relevant contract did not properly “relate to” the performance of work. As such, they argued that ss 32 and 35, PTA were misconstrued and improperly applied. The appellants contended there were errors of law in the Tribunal’s decision but did not seek leave to appeal on any other basis.
Held (dismissing the appeal):
(i) The appellants argued that the Tribunal erred in law due to its construction and application of s 32, PTA by finding the doctors providing their services to the appellant and determining there was a relevant contract. It was argued that the arrangement between the appellants and the doctors for the Medicare Benefit was not “in relation to the payment of work” per s 32, PTA but rather, the services provided by the Doctors were to the patients only and the distribution of Medicare benefits was the Doctors’ remuneration. The Appeal Panel determined, that while the meaning and proper construction of the words in s 32 of the PTA is a question of law, whether or not the facts found fall within the properly construed definitions is a question of fact from which there is no right of appeal. It found the Tribunal’s approach was “entirely orthodox” and in accord with the binding authority and did not err in its construction or application of ss 32. Where no question of law was raised, this ground of appeal was rejected (at [43], [64], [69]).
(ii) Leave to rely on a new argument was refused as the appellants were afforded the opportunity to run the argument at first instance and elected not to. Where the appellants made “deliberate forensic decisions” about how to run their case at the hearing, and absent submissions on how the Appeal Panel should exercise its discretion, the appellants’ reliance on s 81(2) NCAT Act to raise a new argument on appeal was misplaced. This ground was rejected (at [74], [75], [76], [77]).
(iii) The appellant raised conflicting and alternative arguments concerning the construction of s 35(1). On one hand, the appellants argued that the relationship between the payments and the performance of work was an indirect one, and therefore too remote to be deemed a contract “in relation to the payment of work” and falling outside the scope of s 35(1), PTA. However, the appellants also argued in the alternative, that there was no relationship and the finding that the doctors provided services to the patients and the appellants was erroneous. This was fatal to the appeal. The conclusion of the Tribunal was a question of fact, not law, therefore no appealable error arose in respect of that finding. As there was no question of law and the appellants failed to seek leave to appeal on any other grounds, the appeal was dismissed (at [90], [91]). |
2. In balancing competing public interest considerations for and against disclosure of information, does a potential breach of a Council’s privacy obligations outweigh general considerations of facilitating open discussion and government accountability when disclosing government information? |
Moree Plains Shire Council v Howlett [2022] NSWCATAP 221 Administrative and Equal Opportunity Division N Hennessy ADCJ, Deputy President; Dr R Dubler SC, Senior Member
In sum: Information requested under the Government Information (Public Access) Act 2009 (GIPA Act) should not be disclosed where a Council may breach privacy considerations. This outweighs the more general considerations in favour of disclosure, such as stimulating public debate and fostering government accountability. The Appeal Panel set aside the orders of the Tribunal and the decision under review was affirmed.
Facts: A dispute arose between Moree Plains Shire Council (MPSC) and the applicant (Ms Howell), who commenced a Council endorsed project to restore and beautify the segregated Aboriginal section of Moree Cemetery. The “painted tile project” was frustrated by a complaint, signed by 10 individuals who opposed the project, which sought to identify and memorialise 176 unmarked Aboriginal graves. Consequent of the complaint, MPSC suspended the painted tile project with one day’s notice, pending further consultation. The requested information was indisputably “government information” as it was in a record held by an agency: s 4, GIPA Act. Ms Howell sought an application under the Government Information (Public Access) Act 2009 to reveal the identity of the signatories in the complaint, prior to the scheduled public consultation. MPSC disclosed the content of the complaint to Ms Howell, without disclosing the identity of the signatories. The Tribunal held that the considerations against disclosure outweighed those in favour of it.
Held (allowing the appeal):
(i) Errors of law were identified in the Tribunal’s balancing of the competing interests for and against the disclosure, pursuant to s 13 GIPA Act. The Tribunal erroneously held that mere disclosure of the names had the potential to indicate MPSC’s decision was “not soundly based”; it erred in substituting the test of “unsound conduct” for the statutory test of “misconduct or negligent, improper or unlawful conduct”; it incorrectly applied the law to the facts; and finally, it erred by making findings without evidence (at [29], [33]).
(ii) Rather than remitting back to the Tribunal to re-decide according to law, the Appeal Panel said that it had decided to conduct a new hearing, without further evidence, citing s 81(1)(e) NCAT Act (at [6], [68]). It relied on evidence and submissions before the Tribunal, as well as further oral submissions of the parties made at the appeal hearing.
(iii) Sections 54 and 55 of the GIPA Act require an agency (and thus a Tribunal on review) to take into account any objection which has been made to the disclosure of government information during the course of consultation. This is a significant factor in determining whether there is an overriding public interest against disclosure. The Tribunal improperly characterised the document as a “petition” rather than a “complaint or grievance.” Properly characterised, this should have put the Council on notice that the individuals concerned would likely object to its disclosure (in fact, five did object when consulted). As receiving letters of complaint is a routine function of local councils, if such disclosures were to be made, it could reasonably be expected to “prejudice” the supply of confidential information which facilitates that function: GIPA Act, cl 1(d) to the Table to s 14 (at [10], [74], [75], [76]).
(iv) The public interests which favoured disclosure were of a general nature. These included facilitating public discussion of the operations of the MPSC and their policies, communicating openly about public affairs, demonstrating how the council interacted with members of the public in connection to the painted tile project and aimed to enhance government accountability. However, the contention that disclosure of the information would reveal negligent behaviour or improper conduct was completely unfounded on the evidence and rejected on appeal (at [30], [80], [85]).
(v) Ultimately, the significant factors against disclosure far outweighed the more general principles of public interest favouring disclosure. This included the potential breach of the MPSC’s privacy obligations under s 18(1)(a) Privacy and Personal Information Protection Act 1998 (PIPPA). The Tribunal erroneously determined that the Protection Principles did not apply to the information, reasoning that because it was a “petition”, it was “unsolicited information”. However, the Protection Principles apply to “any” information held by an agency. The complaint properly fell within the meaning of “collected information” for the purpose of s 18(1)(a) PIPPA, where personal information collected by an agency must not be disclosed if the individuals concerned would object to its disclosure. This changed the focus of the inquiry from whether the information was “collected” or “unsolicited”, to ascertaining whether disclosing personal information, such as the signatures, would breach the privacy obligations in s 18(1)(a) PIPPA. This factor weighed heavily against the disclosure of the information (at [51], [54], [86]). |
3. Was a contract for accommodation frustrated by imposed travel restrictions during the Covid-19 lockdown? |
Snowtime Tours Pty Ltd v Lavecky [2022] NSWCATAP 219 Consumer and Commercial Division T Simon, Principal Member; Dr R Dubler SC, Senior Member
In sum: The Tribunal made no error of law in finding that a contract for a skiing accommodation in Thredbo was frustrated by the COVID-19 travel restrictions imposed on Sydney residents by the NSW Government, pursuant to s 12 Frustrated Contracts Act 1978 (FCA). Whilst the appellant’s business remained operational, the contractual obligations were impossible for the respondent to comply with.
Facts: The appellant (Snowtime Tours) sought to appeal the decision of the Tribunal, which ordered the appellant to refund the Respondent (Mr Lavecky) $16,5000, for ski accommodation in Thredbo which could not be attended due to COVID-19 travel restrictions. The Tribunal made two findings; that the “no-show policy” on which the appellant relied on to refuse the refund was an “onerous term” and that the contract had been frustrated by the imposition of government restrictions (per s 12, FCA). Snowtime Tours appealed, submitting the Tribunal erred in finding the contract was frustrated because Thredbo remained open for business and could still provide accommodation, the government restrictions were “reasonably foreseeable” prior to contract formation, that the “no show” clause had effect and there was fresh evidence which was not reasonably available at the first hearing: Sch 4, cl 12(1)(c), Civil and Administrative Tribunal Act 2013.
Held (refusing the appeal):
(i) The decision of the Tribunal was upheld, as the factual circumstances satisfied the criteria of a frustrated contract, established in both s 12 FCA and Davis Contractors Ltd v Fareham Urban District Council [1956] UKHL 3 (1956) AC 696. Firstly, the frustrating event (being the government travel restrictions) caused the contractual obligations to become impossible to comply with and radically altered the Respondent’s ability to perform the obligation which was originally agreed to by the parties. Secondly, the frustrating event was not the fault of either party. And finally, the contract did not deal with what would happen should a frustrating event occurred. In such circumstances, s 12 FCA has operation. Whilst Snowtime Tours argued that the travel restrictions were a “foreseeable event”, this was not the relevant test (at [22], [23]).
(ii) Snowtime Tours also submitted that the Tribunal erred by overlooking the operation of the “no-show” clause which bound Mr Lavecky. However, there was no expectation on the Respondent to breach a government order to comply with his contractual obligation, but rather this evidenced the contract was frustrated. In relying on the “no-show” policy, the clause did not deal with, or have any relevance to, the contractual consequence of an unexpected government lockdown or restrictions. Further, as there was nothing explicit in the text of the clause which either established what would happen should a frustrating event occur or to exclude the operation of the FCA, there was no relevant law which Snowtime Tours could rely on for the appeal. Ultimately, leave to appeal was refused, there was no substantial miscarriage of justice, nor was there any new evidence available which was not reasonably available at the time of the first instance hearing (at [27], [28], [29], [34], [42], [47]). |
|
|
Snowtime Tours Pty Ltd v Lavecky [2022] NSWCATAP 219 Consumer and Commercial Division – General Decision of: T Simon, Principal Member; R Dubler, Senior Member Catchwords: CONSUMER LAW – frustration – s12 Frustrated Contracts Act – onerous terms – Application for leave to appeal – what constitutes significant new evidence not reasonably available at the time the proceedings were dealt with – PROCEDURE – failure to put to the parties a cause of action |
|
Moree Plains Shire Council v Howlett [2022] NSWCATAP 221 Administrative and Equal Opportunity Division Decision of: N Hennessy ADCJ, Deputy President; Dr R Dubler SC, Senior Member Catchwords: APPEAL – access to government information – where agency refused to provide access to names of individuals who had written a letter complaining about a Council project – where content of letter released to applicant – whether there is an overriding public interest against disclosure of the names of the individuals who signed the letter |
Borland v Henderson [2022] NSWCATAP 222 Consumer and Commercial Division – Residential Tenancies Decision of: S Thode, Senior Member; J McAteer, Senior Member Catchwords: RESIDENTIAL TENANCY – dismissal of compensation claim – procedural unfairness – no error of law – no issue of principle |
Ritson v Commissioner of Police [2022] NSWCATAP 223 Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; Dr J Lucy, Senior Member Catchwords: APPEAL – whether self-represented litigant was denied procedural fairness in not being advised that he bore an evidentiary onus of proof – PRACTICE AND PROCEDURE – application to revoke non-publication order – whether a non-publication order made in proceedings under the Privacy and Personal Information Protection Act 1998 should be revoked |
Juskey v Stanfield [2022] NSWCATAP 224 Consumer and Commercial Division – Residential Tenancies Decision of: S Thode, Senior Member; M Gracie, Senior Member Catchwords: APPEAL – questions of law – constructive failure to exercise jurisdiction – unreasonable or plainly unjust exercise of the Tribunal’s discretion – procedural fairness – failure to take into account relevant considerations – approach to assessment of damages |
The Owners – Strata Plan No 20427 v A Halliwell Nominees Pty Ltd [2022] NSWCATAP 225 Consumer and Commercial Division – Strata Schemes Decision of: T Simon, Principal Member; D Robertson, Senior Member Catchwords: STRATA TITLE – common property by law – Unauthorised works – whether unauthorised works by lot owners altering common property should be ordered to be removed – APPEAL – question of law – relevant and irrelevant considerations – no evidence |
Wojciechowska v Secretary, Department of Communities and Justice [2022] NSWCATAP 226 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; The Hon D A Cowdroy, AO QC, Principal Member Catchwords: APPEAL – question of law – whether Tribunal has jurisdiction to determine an application under the Government Information (Public Access) Act 2009 – same issue raised in other proceedings before the Tribunal – appellant instituting Supreme Court proceedings seeking determination of the question of law – stay granted of appeal pending determination of judgement in the Supreme Court proceedings |
|
|
The Owners – Strata Plan No. 18229 v Jakabah Pty Ltd [2022] NSWCATAP 229 Consumer and Commercial Division – Strata Schemes Decision of: D Charles, Senior Member; D Ziegler, Senior Member Catchwords: STRATA – proposed change of use of commercial lots – consent to lodgement of development application affecting common property – proper exercise of Tribunal’s discretion under s 232(6) of the Strata Schemes Management Act 2015 – no error on a question of law – leave to appeal refused |
El Ali v Beaini Enterprises Pty Ltd and Anor [2022] NSWCATAP 230 Consumer and Commercial Division – Residential Tenancies Decision of: D Charles, Senior Member; J McAteer, Senior Member Catchwords: APPEAL – residential tenancy – parties to tenancy agreement – whether any misunderstanding of parties constitutes an error by Tribunal – utility of appeal in circumstances where tenancy has ended and possession given over – no claim for damages – Tribunal acted on submissions of parties – no departure from the position of the parties – different case put on appeal – utility of continued proceedings – moot appeal |
Commissioner of Police (NSW Police Force) v DVT [2022] NSWCATAP 231 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; R Dubler SC, Senior Member Catchwords: APPEAL – whether time should be extended following late lodgement –undertaking given by Appellant not to raise the effect of a deed entered into between the parties on the issue of the Respondent’s entitlement to access personal information and the effect of the Appellant resiling from the undertaking – procedural fairness – whether scope of proceedings at first instance was limited to issue of excessive delay or whether scope included entitlement to the information – whether requests made by email to persons who may not open them constituted requests properly made – whether Tribunal failed to ensure Appellant provided all relevant material to the tribunal concerning the Respondents entitlement to the information requested |
DZJ v NSW Trustee and Guardian [2022] NSWCATAP 232 Administrative and Equal Opportunity Division Decision of: I R Coleman SC ADCJ, Principal Member; K Ransome, Senior Member Catchwords: APPEAL – whether error on question of law established – whether leave to appeal granted – whether “further” or “additional” evidence allowed – findings of Tribunal available on evidence – decision not rendered erroneous by further or additional evidence |
|
Hill v The Owners - Strata Plan No 16519 [2022] NSWCATAP 234 Consumer and Commercial Division – Strata Schemes Decision of: G Blake AM SC, Senior Member; D Fairlie, Senior Member Catchwords: APPEALS – constructive failure to exercise jurisdiction – APPEALS – Procedure – Time limits – Extension of time – application granted – COSTS – appeal from exercise of discretion in finding special circumstances to make award for costs – appeal dismissed – COSTS – application that the appellant pay the respondent’s costs of the appeal – application dismissed |
Boman-Peters and Hart v Southern Tablelands Rural Services Pty Ltd [2022] NSWCATAP 235 Consumer and Commercial Division – Home Building Decision of: L Wilson, Senior Member; M Gracie, Senior Member Catchwords: APPEAL – NCAT – appeal from decision of Consumer and Commercial Division – leave to appeal – no transcript or sound recording of hearing before Tribunal – use of photographic evidence – no expert report – exclusion of evidence of rectification costs – application to adduce new evidence – no substantial miscarriage of justice – no issues of principle or public importance |
Payne v Keene [2022] NSWCATAP 236 Consumer and Commercial Division – Home Building Decision of: G Blake AM SC, Senior Member; D Fairlie, Senior Member Catchwords: APPEALS – what constitutes significant new evidence – APPEALS – whether decision against the weight of evidence – APPEALS – circumstances where appropriate to make a work order under the Home Building Act – CONTRACTS – circumstances where appropriate to imply terms into a home building contract |
|
|
Van Wyk v Mosely [2022] NSWCATAP 239 Consumer and Commercial Division – Residential Tenancies Decision of: R Titterton OAM, Senior Member; G Ellis SC, Senior Member Catchwords: APPEAL – Whether decision fair and equitable – whether decision against the weight of the evidence – whether there is fresh evidence – whether to grant leave to appeal |
de Tarle v Newland (Costs) [2022] NSWCATAP 240 Consumer and Commercial Division – Strata Schemes Decision of: S Thode, Senior Member; P H Molony, Senior Member Catchwords: COSTS – where proceedings withdrawn having been rendered futile by external cause – s 60 Civil and Administrative Tribunal Act 2013 – proceedings not untenable, frivolous or vexatious – no award of costs |
Lu v Community Association DP 270682 [2022] NSWCATAP 241 Consumer and Commercial Division – Strata Schemes Decision of: S Thode, Senior Member; A Boxall, Senior Member Catchwords: APPEALS – COMMUNITY ASSOCIATION – appointment of compulsory manager – no issue of principle – appeal dismissed |
Kimber v Fox [2022] NSWCATAP 242 Consumer and Commercial Division – Strata Schemes Decision of: Dr R Dubler SC, Senior Member; G Curtin SC, Senior Member Catchwords: PRACTICE AND PROCEDURE – Appellant was an undischarged bankrupt at the time of the application to the Tribunal – no standing to bring proceedings in the Appellant’s own name without the support of the Trustee in bankruptcy |
Levenah v McGrath t/as Tamaruke [2022] NSWCATAP 243 Consumer and Commercial Division – General Decision of: R C Titterton OAM, Senior Member; G Ellis SC, Senior Member Catchwords: APPEAL – Whether to grant extension of time – decision against the weight of the evidence – decision not fair and equitable – no question of principle |
Snape v Commissioner of Police No 2 [2022] NSWCATAP 244 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; P H Molony, Senior Member Catchwords: APPEAL – Freedom of Information – failure by Tribunal to consider some confidential information to which access was sought – material error of fact – failure to consider whether there were any public interest considerations in favour of disclosure and the weight to be given to them – s 13 of the Government Information (Public Access) Act 2010 – failure to consider a relevant consideration. |
|
Sunaust Properties Pty Ltd v The Owners – Strata Plan No 64807 [2022] NSWCATAP 246 Consumer and Commercial Division – Strata Schemes Decision of: S Westgarth, Deputy President; I Coleman SC ADCJ, Principal Member Catchwords: APPEAL – proceedings commenced in the Supreme Court prior to commencement of Tribunal proceedings – whether cl5(7) of schedule 4 of the Civil and Administrative Tribunal Act precluded the Tribunal from having jurisdiction to determine relevant issues – whether an issue for determination before the tribunal was the subject of dispute before the Supreme Court – whether there is a risk of concurrent and inconsistent findings being made in the tribunal and the Supreme Court. |
Zioukin v Lang [2022] NSWCATAP 247 Consumer and Commercial Division – Residential Tenancies Decision of: A Suthers, Principal Member Catchwords: COSTS – costs of appeal – appeal withdrawn by appellant on first return without a hearing on the merits – principles applicable to costs where no hearing on the merits – supervening event leading to withdrawal |
|
Silberstein v Strata Choice Pty Ltd [2022] NSWCATAP 249 Consumer and Commercial Division – Strata Schemes Decision of: A Suthers, Principal Member Catchwords: APPEAL – application for a stay – dismissal of application against some but not all respondents at first instance – power to stay conduct of proceeding at first instance in light of that order – parties to appeal not properly identified by appellant – costs – whether “special circumstances warranting an award of costs” within the meaning of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) established |
Noori v JMG Auto Parts Pty Ltd [2022] NSWCATAP 250 Consumer and Commercial Division – Motor Vehicles Decision of: R C Titterton OAM, Senior Member; P Molony, Senior Member Catchwords: APPEALS – question of law – other errors – no question of principle |
|
|
|
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. |
