NCAT Appeal Panel Decisions Digest Issue 8 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 August 2022:
Registrar of Births, Deaths and Marriages v FJG & FJH; Attorney General of New South Wales as Intervenor [2022] NSWCATAP 270: The Appeal Panel referred questions of law to the Supreme Court, pursuant to s 54 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), concerning the power of the Registrar of Births, Deaths and Marriages to amend an entry in the Register about a marriage solemnised in New South Wales where the particulars would be inconsistent with those prepared under the Marriage Act 1961 (Cth). The Appeal Panel provided significant guidance as to the considerations relevant to the exercise of the referral power in s 54 NCAT Act. ZWQ v ZWS [2022] NSWCATAP 277: A joinder application was refused, where the discretion under s 31 of the Powers of Attorney Act 2003 (NSW) empowers a Tribunal to join a party who demonstrates “genuine concern” for the principal as one of many considerations. This power is a discretion and does not automatically entitle a person with genuine concern to be joined. Snowtime Tours Pty Ltd v Lavecky (No 2) [2022] NSWCATAP 275: The respondent was able to recover costs for an adjourned hearing and costs application, where leave for legal representation was contingent on him not seeking to recover costs for the appeal. Proceedings which were unnecessarily prolonged by the appellants satisfied “special circumstances” per s 60(2), NCAT Act.
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. Did the NSW Registrar of Births, Deaths and Marriages have the power to amend a marriage record, where one of the parties to the marriage applied to have their change of sex recorded on the marriage certificate, to reflect a same sex marriage as at the date of the marriage? |
Registrar of Births, Deaths and Marriages v FJG & FJH; Attorney General of New South Wales as Intervenor [2022] NSWCATAP 270 Administrative and Equal Opportunity Division Armstrong J, President; A Suthers, Principal Member
In sum: The Appeal Panel referred questions of law to the Supreme Court relating to the scope of the power conferred on the NSW Registrar of Births, Deaths and Marriages in s 45 Births, Deaths and Marriages Act 1995 (NSW) (BDM Act) to amend an entry in the Register about a marriage solemnised in New South Wales where there is inconsistency between the particulars in the marriage and those prepared under the Marriage Act 1961 (Cth).
Facts: FJG, who was assigned the male sex at birth, married FJH in 2009 at a time where her documents still identified her as male. In 2018, FJG registered her change of sex, which included changes to her identity documents. FJG also sought to change her record of marriage, to reflect her name change and sex as a woman at the date of the marriage. The appellants (the Registrar) appealed the decision of NCAT, which on first instance held that the Registrar had the power to alter the NSW Register of marriages under s 45 of the BDM Act to make this change. In the internal appeal, the Registrar contended that NCAT misinterpreted s 45 of the BDM Act, particularly insofar as that interpretation may be inconsistent with the Marriage Act 1961 (Cth), where the record would reflect a same sex marriage at a time it was not legal, and it did not have the power to record an event retrospectively. Having been joined to the appeal, the Attorney General for NSW sought the referral of certain questions of law. The Attorney separately indicated that he would file a summons in the Supreme Court relating to issues of federal constitutional law arising in the same matter.
Held (allowing the referral):
(i) The Appeal Panel of NCAT can only refer issues of State law, with the written consent of the President. Before this discretion can be exercised, the Appeal Panel must be satisfied that both limbs of the test in s 54 NCAT Act are met. First, that the questions are “questions of law”. Second, that the questions “aris[e] in the proceedings”. If those conditions are met, the Appeal Panel retains a discretion to refer the questions. The Supreme Court is not bound to answer the questions once referred: s 54(3), NCAT Act (at [36], [37]).
(ii) The Appeal Panel accepted that the questions sought to be referred were questions of law, directed solely to the construction of s 45, BDM Act and the extent to which that provision could authorise the “correction” to the Registrar which was sought by FJG (“the constructional questions”). As most questions of construction will involve questions of law, the first limb to refer those two questions was met (at [44], [45]). The constructional questions also arose in the proceedings, because the questions sought to be referred related directly to the Register’s grounds of appeal which would require determination (at [47]).
(iii) The Attorney General indicated that a summons would separately be filed in the Supreme Court seeking declarations directed to the questions of federal constitutional law which, it was common ground, the Appeal Panel was not empowered to refer: at [49]. Those issues involved potential inconsistency between the State and Federal legislation at issue, such that the State legislation would be invalid and inoperative pursuant to s. 109 of the Constitution (Cth) (“the constitutional questions”). The Appeal Panel noted that it was arguable that the constructional questions did involve consideration of federal constitutional law (at [51]); and that it would be ultimately a question for the Supreme Court whether the questions do in fact involve constitutional law which cannot be referred by NCAT (at [53]).
(iv) Where the constructional questions satisfied both limbs of the test in s 54 of the NCAT Act, the final consideration was whether the Appeal Panel should exercise its discretion to refer the questions to the Court. The Appeal Panel provided detailed guidance as to the facts in favour (at [55]) and against (at [56]) referral of the questions. The Appeal Panel was ultimately guided by consideration of the interests of justice, noting that certain related questions could not be conclusively determined by the Appeal Panel and it was preferable for all questions to be determined in a single forum. It was also considered that the matter involved issues of public importance and had broader application than solely to these parties, given the extent of recent legislation permitting the correction or amendment of details kept by government in respect of a person’s sex (at [57] [58], [59] and [60]). |
2. Should a person found to have “genuine concern” for a subject person in Guardianship proceedings be mandatorily joined to those proceedings? |
ZWQ v ZWS [2022] NSWCATAP 277 Guardianship Division A Britton, Deputy President; C Fougere, Principal Member; I Beale, Senior Member
In sum: The Appeal Panel dismissed an appeal against the refusal to join a third party to proceedings in the Guardianship Division. The appellant, the husband of the Principal, sought to be joined to proceedings commenced by the son of the Principal to review the purported revocation of the son’s power of attorney. The appellant’s genuine concern for his wife was not, in itself, enough to satisfy s. 31 of the Powers of Attorney Act 2003 (NSW) (POA Act).
Facts: The appellant’s wife (the Principal) had been diagnosed with dementia and was living in a residential aged care facility. In July 2020, the Principal appointed her two sons as joint attorneys under an enduring power of attorney (the EPOA). The appellant applied to NCAT for a review of the EPOA, and asked for the Tribunal to make guardianship and financial management orders in his favour under the Guardianship Act 1987 (NSW). NCAT dismissed that application. On 15 November 2020, the Principal reportedly revoked the EOPA. On 15 August 2021, one of the sons applied to NCAT for a review of this revocation (“revocation proceedings”). Three weeks later, the appellant made an application to NCAT to review the making of the EPOA and applied to be joined as a party to the revocation proceedings. On 17 September 2021, NCAT refused the appellant’s application to be joined to the revocation proceedings. The appellant made a further attempt to be joined to the proceedings, which was again refused. Additionally, NCAT made an order that the Principal was to be independently represented in both the EPOA and revocation proceedings, which were heard concurrently in November 2021. NCAT found that it was appropriate to revoke the EPOA and appointed the NSW Trustee and Guardian (NSWTAG) as the Principal’s financial manager. The appellant appealed from both the decision to refuse him being joined to the revocation proceedings and the decision to appoint the NSWTAG.
Held (dismissing the appeal):
(i) Section 35 of the POA Act and cl 7 to Sch 6 of the NACT Act empower NCAT to join a party to guardianship proceedings if NCAT is of the opinion that the applicant shows concern for the welfare of the subject person or any other reason. The appellant argued that NCAT at first instance ignored the evidence of his concern for his wife and failed to take into account his other reasons to be joined to the proceedings. In doing so, he contended that his primary concern, being his concern for his wife, enlivened NCAT’s jurisdiction to join him to the proceedings under s 35(1)(d), POA Act: [31].
(ii) The Tribunal below acknowledged that one of the many reasons put by the appellant was his concern for the wellbeing of his wife. However, the appellant had also reiterated that gaining a right to appeal was the principal reason he wished to be joined to the revocation proceedings. Concern for the Principal of itself does not lead to the conclusion that the person seeking to be joined should be a party. Therefore, it was found that reading the reasons fairly and as a whole, it is implicit that the Tribunal accepted that the appellant was concerned for the welfare of his wife and this issue was not “ignored”. Where a spouse is not automatically considered a party to the proceedings in NCAT, the Appeal Panel was not satisfied that the appellant had justified being joined in consideration of all the circumstances. The decision not to join the appellant to the proceedings was therefore open to NCAT to make on the material before it (at [39] to [40]).
(iii) The appellant also argued that the Tribunal impermissibly focussed on the “principal reason” a party seeks to be joined, which should be irrelevant: [42]. He submitted that the Tribunal was required to join a party once it was established that the person held a “genuine concern” (at [42], [46]).
(iv) The Appeal Panel rejected that construction (at [45]) and held that the submission unduly confined the discretion to join a party to the precondition that a person have a “genuine concern” in s 35(1)(d) of the POA Act.
(v) Text and context did not support the proposition that the word “may” bears a different meaning to the general position set by s 9, Interpretation Act 1987 (NSW). In applying its discretion, NCAT had balanced the competing considerations when exercising its discretion, which was entirely orthodox and permitted by s 35(3) of the POA Act (at [44], [45], [46] and [47]).
(vi) Finally, the appellant challenged as irrational the finding that “his interests would not be affected by the outcome” of the revocation proceedings: [48]. He submitted that he and the Principal had a longstanding marriage and joint assets. Where the submission was not raised below, and the consequence for any joint assets arising from the revocation was not established, the finding could not be characterised as irrational (at [48], [51], [52], [53] and [54]). |
3. Could the respondent recover costs pursuant to s 60(2) Civil and Administrative Tribunal Act 2013 (NSW), where leave for representation was granted conditional on the respondent not seeking costs? |
Snowtime Tours Pty Ltd v Lavecky (No 2) [2022] NSWCATAP 275 Consumer and Commercial Division A Britton, Deputy President; C Fougere, Principal Member; I Beale, Senior Member
In sum: The Appeal Panel awarded costs for a hearing which was adjourned because the appellants were unprepared. Despite the respondent being granted leave for legal representation contingent on not seeking costs, the Appeal Panel held that adjournments should not be expected to arise and the unnecessary prolongation of proceedings by the appellants satisfied “special circumstances”. The Respondent was able to recover costs for the adjourned proceedings and the costs application, but not the legal costs for the appeal.
Facts: In Snowtime Tours Pty Ltd v Lavecky [2022] NSWCATAP 219, the appellant (Snowtime Tours) was ordered to refund to the respondent (Mr Lavecky) an amount of $16,419, for a ski accommodation contract which was frustrated by COVID-19 restrictions. On 6 July 2022, the Appeal Panel made directions seeking submissions for an application for costs. Mr Lavecky submitted that he was granted conditional leave to legal representation, on the condition that he would not seek to recover his legal costs. On 10 February 2022, the Appeal Panel adjourned the matter to 3 June 2022 to allow Snowtime Tours to provide a complete transcript of the sound recording. He argued that Snowtime Tours’ conduct in failing to serve a complete transcript, as it was ordered to do so, caused unnecessary disadvantage to him. Mr Lavecky did not seek legal costs for the entire proceedings, but only the costs necessitated by the need to adjourn the matter on 10 February 2022, and the costs of that application.
Held (awarding costs):
(i) Pursuant to s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a cost order can be made if “special circumstances” are established. As adjournments should not be anticipated as possibilities in proceedings, it was determined that the costs associated with the adjourned proceedings arose by circumstances that were out of the ordinary. Snowtime Tours’ failure to provide the full transcript of the primary hearing, which it should have been prepared for, necessitated the adjournment of the appeal. The Appeal Panel was satisfied that Snowtime Tours was responsible for prolonging the proceedings unreasonably (at [8],[9],[10] and [28]).
(ii) The Appeal Panel rejected the argument of Snowtime Tours, that costs were only to be awarded by the Tribunal in “extreme” circumstances. The legislation makes clear that the test is “special circumstances” which are out of the ordinary, but not necessarily exceptional or extraordinary. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. Snowtime Tours was to pay Mr Lavecky’s costs thrown away of the adjourned hearing on 10 February, including his costs of the costs application (at [31], [35]). |
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Snowtime Tours Pty Ltd v Rundle [2022] NSWCATAP 253 Consumer and Commercial Division – General Decision of: A Suthers, Principal Member; P Durack SC, Senior Member Catchwords: CONSUMER LAW – frustration – ss12 & 13 Frustrated Contracts Act – whether the correct test was applied – challenge to finding that lockdown was not foreseeable – application for leave to appeal – whether there was significant new evidence not reasonably available at the time the proceedings were dealt with – leave to appeal not granted where Tribunal’s conclusion no more than arguably wrong |
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Hill v Green [2022] NSWCATAP 256 Consumer and Commercial Division – Residential Tenancies Decision of: R Dubler SC, Senior Member; G Curtin SC, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – quiet enjoyment – obligation to keep premises in a reasonable state of repair – breach – possibility of double compensation where both compensation and reduction of rent sought – double compensation to be avoided |
Lucien v Mullally [2022] NSWCATAP 257 Consumer and Commercial Division – Home Building Decision of: S Thode, Senior Member; AR Boxall, Senior Member Catchwords: APPEALS – RESIDENTIAL BUILDING – Home Building Act 1989 – whether finding against the weight of evidence |
Mullally v Lucien [2022] NSWCATAP 258 Consumer and Commercial Division – Home Building Decision of: S Thode, Senior Member; AR Boxall, Senior Member Catchwords: APPEALS – RESIDENTIAL BUILDING – Home Building Act 1989 – appeal against cost decision – whether discretion to award costs miscarried |
ZXO v Public Guardian [2022] NSWCATAP 260 Guardianship Division Decision of: A Britton, Deputy President; I Coleman, SC ADCJ, Principal Member; S Taylor, Senior Member Catchwords: GUARDIANSHIP – whether proposed guardian is “able to exercise the functions conferred – by the proposed guardianship order” in s 17(1)(c) of the Guardianship Act 1987 (NSW) – GUARDIANSHIP – Guardianship Act – nature of obligation to “have regard to” matters in s 14(2) of the Guardianship Act 1987 (NSW) – GUARDIANSHIP – functions of a guardian – whether function given to guardian to consent to medical treatment under Guardianship Act, Pt 5 authorises guardian to make “end-of-life decisions” – APPEALS – Civil and Administrative Tribunal Act 2013 (NSW) – nature of obligation to give adequate reasons – make “end-of-life decisions” – APPEALS – Civil and Administrative Tribunal Act 2013 (NSW) – nature of obligation to give adequate reasons |
Link Wentworth Housing Ltd v Little [2022] NSWCATAP 261 Consumer and Commercial Division – Social Housing Decision of: G Ellis SC, Senior Member; P H Molony, Senior Member Catchwords: APPEAL – Notice of Appeal lodged out of time – no error of law – no basis for grant of leave to appeal |
The Owners – Strata Plan No 79749 v Dunstan [2022] NSWCATAP 262 Consumer and Commercial Division – Strata Schemes Decision of: Dr R Dubler SC, Senior Member; D Ziegler, Senior Member Catchwords: COSTS – application for costs against a non-party – Tribunal has power to order a non-party to pay costs – whether special circumstances exist – the evidence and circumstances fail to demonstrate special circumstances warranting a costs order against the non-party |
Turitsyna v Chief Commissioner of State Revenue [2022] NSWCATAP 263 Administrative and Equal Opportunity Division Decision of: I R Coleman SC ADCJ, Principal Member; G Furness SC, Senior Member Catchwords: APPEALS – whether Tribunal erred on question of law in rejecting Appellant’s objection to Respondent’s response to summons to produce documents |
FFO v Cumberland Council (No 2) [2022] NSWCATAP 264 Administrative and Equal Opportunity Division Decision of: Cole DCJ, Deputy President; Coleman SC ADCJ, Principal Member Catchwords: COSTS – Party/Party – Appeals – whether special circumstances exist under s 60(2) of the Civil and Administrative Tribunal Act 2013 |
Dragovic v Peros [2022] NSWCATAP 265 Consumer and Commercial Division – General Decision of: C Fougere, Principal Member; G Curtin SC, Senior Member Catchwords: ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – adequacy of reasons – central controversies must be dealt with – competing evidence relevant to central factual controversies must be analysed and resolved – analysis and resolution best achieved by consideration of the contemporary materials, objectively established facts and the apparent logic of events |
Xu v Ling [2022] NSWCATAP 266 Consumer and Commercial Division – Home Building Decision of: G Ellis SC, Senior Member; J Currie, Senior Member Catchwords: APPEAL – No error of law established – no basis for granting leave to appeal |
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ZXH v ZXI [2022] NSWCATAP 269 Guardianship Division Decision of: A Britton, Deputy President; I Coleman SC ACDJ, Principal Member; L Stewart, General Member Catchwords: GUARDIANSHIP – considerations relevant to appointment of a suitable person as manager of the protected person’s estate; or to commit management of the estate to the NSW Trustee and Guardian under Guardianship Act, s 25M – GUARDIANSHIP – whether proposed guardian is “able to exercise the functions conferred by the proposed guardianship order” in s 17(1)(c) of the Guardianship Act 1987 (NSW) – EVIDENCE – no evidence – whether the Tribunal made a finding of fact without evidence – APPEALS – Civil and Administrative Tribunal Act 2013 (NSW) – nature of obligation to give adequate reasons |
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Life Structures Pty Ltd v Burton [2022] NSWCATAP 272 Consumer and Commercial Division – Home Building Decision of: G Ellis SC, Senior Member; J S Currie, Senior Member Catchwords: BUILDING AND CONSTRUCTION – Whether s 18G of the Home Building Act 1989 (NSW) operated to render void or read down a contractual provision – APPEAL – Whether decision against the weight of the evidence – whether to grant leave to appeal |
John McDonald Building Services Pty Limited v Gusa (No 2) [2022] NSWCATAP 273 Consumer and Commercial Division Decision of: I R Coleman SC ADCJ, Principal Member; J S Currie, Senior Member Catchwords: COSTS – where each party seeks orders for costs of proceedings at first instance and of appeal – where parties had mixed success on appeal and at first instance – whether either party should be awarded costs – whether proportional costs order should be made |
Zonnevylle v Secretary, Department of Education [2022] NSWCATAP 274 Administrative and Equal Opportunity Division Decision of: A Suthers, Principal Member Catchwords: APPEALS – Application for leave to record directions hearing independently of Tribunal made pursuant to s 9 of the Court Security Act 2005 (NSW) – recusal application for bias on basis reasons for decision to refuse that application alleged to be pre-prepared |
Snowtime Tours Pty Ltd v Lavecky (No 2) [2022] NSWCATAP 275 Consumer and Commercial Division – General Decision of: T Simon, Principal Member; R Dubler, Senior Member Catchwords: COSTS – Rule 38A Civil and Administrative Tribunal Rules 2014 – where party given leave to be legally represented on the condition that it may not recover legal costs – special circumstances |
Kerry Moskos v John Rohan Joseph [2022] NSWCATAP 276 Consumer and Commercial Division – Commercial Decision of: S Westgarth, Deputy President; J Currie, Senior Member Catchwords: APPEAL– dividing fence – effect of orders on access to property – whether all circumstances considered – whether decision so unreasonable no reasonable decision would have made it |
ZWQ v ZWS [2022] NSWCATAP 277 Guardianship Division Decision of: A Britton, Deputy President; C Fougere, Principal Member; I Beale, Senior Member Catchwords: TRIBUNALS – NSW Civil and Administrative Tribunal – joinder of parties to proceedings to review the revocation of an enduring power of attorney under the Powers of Attorney Act 2003 (NSW) APPEALS – Procedure – Time limits – Extension of time to appeal |
Hill v Venkatesan [2022] NSWCATAP 278 Consumer and Commercial Division – Residential Tenancies Decision of: R C Titterton OAM, Senior Member; Dr R Dubler SC, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – fixed term lease for 52 weeks – obligation of the tenants to pay rent where landlord accepts return of vacant possession – abandonment by the tenants – compensation – obligation on the landlord to mitigate the loss – whether the Tribunal erred in failing to apply correct principles |
Bilanenko v Commissioner of Police [2022] NSWCATAP 279 Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; C Mulvey, Senior Member Catchwords: APPEAL – whether procedural fairness or rule in Browne v Dunn required the Appellant to be cross-examined on an allegation of dishonesty where the Appellant was on notice of the allegation and responded to it by way of evidence before the hearing and where the Tribunal stated that it placed no weight on the allegation – no denial of procedural fairness |
Commissioner of Police v Robinson (No 2) [2022] NSWCATAP 280 Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; J Lucy, Senior Member Catchwords: COSTS – whether special circumstances exist warranting an order for costs – unsuccessful appellant, being a government body, sought leave to appeal as a test case in order to clarify the law in respect of the practice and procedure of medical examination of parties – whether lump sum order of costs is appropriate |
Roberts v Hardie [2022] NSWCATAP 281 Consumer and Commercial Division – Residential Tenancies Decision of: D Robertson, Senior Member; S Higgins, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) - leave to appeal – no issue of principle |
SMA Motors Pty Ltd t/as Autos Auctions v Smith [2022] NSWCATAP 282 Consumer and Commercial Division – Motor Vehicles Decision of: G Blake AM SC, Senior Member; P H Molony, Senior Member Catchwords: APPEAL – whether further evidence should be admitted on appeal – evidence relating to whether expert report relied on by the Tribunal had been served on the respondent in the original proceedings – evidence admitted on appeal – CONSUMER LAW – Enforcement and remedies – Remedies relating to statutory guarantees – Action against supplier of goods – refund – whether a refund may be diminished or discounted for benefits the consumer may have gained while in possession of the goods |
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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. |
