NCAT Legal Bulletin Issue 1 of 2023
The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
This issue features case summaries of recent decisions from the High Court of Australia, the Court of Appeal of New South Wales, the Supreme Court of NSW and the Supreme Court of Victoria published in December 2022, January and February 2023.
Unions NSW & Ors v State of New South Wales [2023] HCA 4: The High Court found that the plaintiffs did not have standing to seek a declaration of invalidity where the relevant provision had been repealed and as a result there was no longer a “matter” within its federal jurisdiction. The entanglement of “matter” and “standing” requires a party to have a sufficient interest in obtaining the relief sought, beyond an ordinary member of the public with an interest in upholding the law generally. Mills v Walsh [2022] NSWCA 255: In “no transaction” misleading and deceptive conduct matters, the value of what was received must be less than the value paid in order to establish loss. Where the contract was for work and materials, the value of what was received is the materials and labour, rather than the end product. Council of the Law Society of New South Wales v Green [2022] NSWCA 257: The Court of Appeal at first instance declared that the legal practitioner was not a fit and proper person to remain on the roll of Australian lawyers and ordered she be removed from the roll, where the conduct involved grave impropriety, significant breaches of trust and serious dishonesty through repeated and intentional breaches of professional rules. To maintain the reputation of the profession and public confidence in the integrity of the profession and the administration of justice, her name was removed from the roll. Health Care Complaints Commission v Hill [2022] NSWCA 270: The Court of Appeal allowed an appeal from a Supreme Court decision that reviewed a decision of the Health Care Complaints Commission to commence disciplinary proceedings in NCAT. Where NCAT has been established as the specialist body to hear such matters, it could not be the legislature’s intention that a court be able to determine whether a matter should be allowed to proceed. McDonnell v The Owners – Strata Plan No 64191 [2022] NSWSC 1631: The Supreme Court dismissed an appeal challenging the Tribunal’s orders, which were conditional on development consent from the local consent authority. It held that such a condition will be relevant to enforcement of an order but does not affect the Tribunal’s power to make such an order under s 132 of the Strata Schemes Management Act 2015 (NSW). EMG Stone Pty Ltd v Gonda [2022] NSWSC 1674: The Supreme Court summarily dismissed a summons where no reasonable cause of action was apparent to the Court and the proceedings appeared to be an abuse of process. The plaintiff was effectively seeking to relitigate a matter heard by the Tribunal and it was not appealable to the Supreme Court. Sunaust Properties Pty Ltd v The Owners – Strata Plan 64807 [2022] NSWSC 1643: The Supreme Court dismissed an application to have the proceeding transferred to the Tribunal, where proceedings had been commenced first in the Supreme Court and subsequently in the Tribunal. The uncertainty of the Tribunal’s jurisdiction to determine all issues, the quantum in the Supreme Court proceedings and the estimated length of both hearings meant that both proceedings would continue in their respective forums, but the Tribunal did not have jurisdiction to the extent that an issue arising in its proceeding is the subject of a dispute in the Supreme Court proceeding. Choi v NSW Ombudsman [2022] NSWSC 1681: Where both appeals from Tribunal decisions were incompetent, the Supreme Court dismissed the appeals as appearing to be frivolous or vexatious and with no reasonable cause of action disclosed. James v Jandson Pty Ltd [2022] NSWSC 1686: The Supreme Court dismissed an appeal against a decision of the Appeal Panel, finding that the Appeal Panel had not “re-evaluated” the evidence before the Tribunal, but correctly engaged in the task of considering the adequacy and sufficiency of evidence before the Tribunal. Singh v Tidball [2023] NSWSC 96: The Supreme Court dismissed one of five Supreme Court proceedings commenced from an Appeal Panel decision as an abuse of process, where the principal order sought was conceded by the plaintiff to have no utility. German v State Trustees Ltd [2023] VSC 7: The Victorian Supreme Court held that VCAT was not exercising federal jurisdiction in a matter between residents of different States within the meaning of s 75(iv) of the Constitution where it made guardianship and administration orders. The determination of such orders is an exercise of administrative power (not judicial) and is not an adversarial process.
| | | Unions NSW & Ors v State of New South Wales [2023] HCA 4 15 February 2023 – Kiefel CJ, Gageler, Gordon, Edelman, Steward, Gleeson and Jagot JJ
In sum: Where a plaintiff’s interests are rendered insufficient or no longer foreseeable by the repeal of the provision on which the plaintiff seeks a declaration, the plaintiff will no longer have standing. The plaintiff will have no interest or liability beyond that of an ordinary member of the public and there is no “matter” within the meaning of Ch III of the Constitution for the Court to determine in its federal jurisdiction.
Facts: The plaintiffs sought to challenge the constitutional validity of ss 29(11) and 35 of the Electoral Funding Act 2018 (NSW) (EF Act), which respectively capped electoral expenditure of third-party campaigners (TPCs) and created an offence for TPCs to act in concert with another person or persons to incur electoral expenditure that exceeded the cap during the capped expenditure period. Two weeks before the hearing, s 35 of the EF Act was repealed – the plaintiffs amended their claim to seek a declaration that the former s 35 was invalid. The State of New South Wales (and the Commonwealth intervening) argued that the Court no longer had jurisdiction to determine the validity of EF Act s 35.
Held (unanimously answering “No” to the question as to whether the Court had jurisdiction): (i) A necessary requirement for the Court’s giving of answers or making of a declaration is the judicial determination or resolution of controversy of the rights, duties or liabilities in issue. This is reflected in the constitutional requirement in Ch III of the Constitution that a dispute involves a “matter”; concepts of “matter” and “standing” establish the boundaries of the Court’s judicial power and are heavily entangled. What constitutes “standing” will vary depending on the nature of the relief sought and it applies differently to different kinds of controversies. It is settled that a “matter” is a justiciable controversy that exists irrespective of whether a proceeding has been commenced, and so it follows that a “matter” can cease to exist after a proceeding has commenced. Given the plaintiffs did not have standing to seek the declaration of invalidity, there was no longer a “matter” within federal jurisdiction (at [14], [15], [19], [45]).
(ii) Following the repeal, the plaintiffs were unable to demonstrate a sufficient interest or foreseeable consequences from the grant of the declaration sought. Standing requires the party seeking relief to have a “real” or “sufficient” interest in obtaining the relief sought. The question of sufficiency is one of degree rather than discretion. Where a declaration is sought that does not involve personal rights or liabilities, a plaintiff must establish an interest that goes beyond the interest of any other member of the public in upholding the law generally. It must be more than a mere intellectual or emotional concern. To meet the requirement of sufficiency, a party must be likely to be advantaged if successful or disadvantaged if unsuccessful – there must be a connection between the plaintiff and the outcome of the proceeding (at [16], [18], [22], [48], [51]).
(iii) With regard to the making of a declaration, it must be seen to produce foreseeable consequences for the parties. In the present case, the plaintiffs were unable to assert that any of their rights or interests had been infringed by the former s 35 of the EF Act, beyond their compliance with the provision to avoid its criminal sanction. However, the rules of standing do not operate to reward compliance or sanction past conduct; they operate to identify the proper person to assert and vindicate public legal relations. The plaintiffs were unable to argue any foreseeable consequence from the declaration that was sought, beyond the satisfaction of the Court validating the plaintiffs’ contentions. The repeal practically operated to remove even the mere possibility of a future liability of the plaintiffs. In obiter, the majority noted that there may be a line of reasoning available with respect to standing where there is a risk of repetition in respect of administrative decisions or delegated legislation (at [16], [24]-[26], [51], [58], [27]).
Read the decision on the High Court of Australia website. | Court of Appeal of New South Wales | Mills v Walsh [2022] NSWCA 255 8 December 2022 – Bell CJ, White and Brereton JJA
In sum: Where a plaintiff seeks to establish it has suffered loss in a “no transaction” misleading and deceptive conduct case, it must prove that the value of what it has received is less than what was paid. In a contract for work and materials the value of the benefit received is not of the end product, but the materials and labour. Where works are defective or uninsured due to an unlicensed builder, that may be provided for, but the Court will not presume that the works had no value. Further, if there is no evidence as to the value of the benefit, any claim for the difference will fail. Here, the value was unaffected by the demolition and renovation of the works by the proprietors.
Catchwords: CONSUMER LAW – Misleading or deceptive conduct – Contract for residential renovation works – Representation by silence that construction company was licensed to undertake works – Whether primary judge erred in finding future form of pleaded representation made out – “No transaction” case – Requirement of plaintiff to prove its loss – Price paid minus value of benefits received – Source of value in construction contract – Where partially renovated property subsequently demolished and rebuilt – Effect of circumstance that builder was unlicensed – CONTRACT – Identification of parties where no written contract in place – Whether construction company or its principal party to residential construction contract
Held (dismissing the appeal):
(i) Link to the Court of Appeal’s case summary is here.
Read the decision on the Caselaw website. | Council of the Law Society of New South Wales v Green [2022] NSWCA 257 14 December 2022 – Ward P, Kirk JA, Griffiths AJA
In sum: Where a legal practitioner has engaged in criminal conduct involving significant breaches of trust and serious dishonesty, the nature of the conduct alone establishes that the practitioner is not a fit and proper person. The mere fact of a criminal conviction may not always disqualify a practitioner, but the disgrace and defects of character that flow from such a conviction may be incompatible with continued practice. Where the criminal conduct involves dishonesty and misappropriation, this consequence will flow more readily. The purpose of disciplinary proceedings includes maintaining the reputation of, and public confidence in, the integrity of the profession and the administration of justice. This purpose involves aspects of public accountability and deterrence and thus necessitates the recording of all matters relevant to the misconduct for public knowledge and in the event that there is a later application by the practitioner for readmission.
Catchwords: LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted of offences under s 192E(1)(b) of the Crimes Act 1900 (NSW) of dishonestly obtaining an advantage – sentence of imprisonment – declaration that the practitioner is not a fit and proper person to remain on the roll of Australian lawyers
Held (ordering the respondent’s name be removed from the roll):
(i) Link to the Court of Appeal’s case summary is here.
Read the decision on the Caselaw website. | Health Care Complaints Commission v Hill [2022] NSWCA 270 15 December 2022 – Ward P, Mitchelmore JA and Basten AJA
In sum: The Supreme Court does not have jurisdiction to review the decision of the Health Care Complaints Commission to commence disciplinary proceedings in the Tribunal on the ground of legal unreasonableness. To do so would require reviewing the material before the Director of Proceedings with regard to policy protecting the public’s health and safety. Where the legislature has established NCAT as a specialist body to hear such matters, it could not be intended that a court be able to determine whether a matter should be allowed to proceed. Equally, the Supreme Court lacked jurisdiction to consider the Director of Proceedings’ characterisation of the practitioner’s conduct as professional misconduct or unsatisfactory professional conduct.
Catchwords: OCCUPATIONS – health practitioners – misconduct and discipline – disciplinary proceedings – Director of Proceedings’ decision to commence NCAT disciplinary proceedings – application alleging unsatisfactory professional conduct and professional misconduct – whether allegations of professional misconduct were legally unreasonable – ADMINISTRATIVE LAW – reviewability – grounds of review – subject matter of power or decision – prosecutorial decision – whether Director of Proceedings’ decision should be treated as final – statutory interpretation – prosecutorial powers largely immune from judicial review but subject to NCAT control – legislature did not intend Court to determine which applications may be considered by specialist tribunal – decision is non-justiciable – ADMINISTRATIVE LAW – remedies – certiorari – decision to refer complaint had no effect on medical practitioner’s legal rights – no power to make fact findings or affect registration – no relief in certiorari – ADMINISTRATIVE LAW – remedies – discretionary factors – failure to make strike out application in NCAT – discretion to refuse relief
Held (allowing the appeal):
(i) Link to the Court of Appeal’s case summary is here.
Read the decision on the Caselaw website. | Supreme Court of New South Wales | McDonnell v The Owners – Strata Plan No 64191 [2022] NSWSC 1631 30 November 2022 – N Adams J
In sum: It is within the scope of power afforded to the Tribunal by virtue of s 132 of the Strata Schemes Management Act 2015 (NSW) (2015 Act) to make orders that are conditional on a local consent authority. Where a rectification order is made by the Tribunal that effectively constitutes a demolition order, local council approval will be relevant to enforcement of the order, but not to the power to make the order in the first place.
Facts: The plaintiffs (the McDonnells) sought to develop the airspace above their lot and obtained approval in a special resolution from the respondent (the OC) to lodge a development application (DA) to add a storey above the lot. Those works were completed by early 2006. In 2010, the McDonnells sought consent from the counsel to modify the works, and the Executive Committee of the OC resolved to consent to a further DA. There was a question as to whether this was a special resolution authorising the works within the meaning of s 65A of the Strata Schemes Management Act 1996 (NSW) (1996 Act), which is materially the same as the present s 108 of the 2015 Act. Those works were completed by February 2012 and resulted in the building of a two-storey residence. On 7 September 2018, the OC filed an application in the Tribunal seeking rectification orders under s 132 of the 2015 Act for removal of the works and reinstatement the common property, which was successful. The McDonnells unsuccessfully appealed to the Appeal Panel. More than two years later, the McDonnells sought leave to appeal the Appeal Panel’s decision in the Supreme Court. At both first instance and before the Appeal Panel, the McDonnells did not challenge the Senior Member’s power under s 132 of the 2015 Act. On appeal, the McDonnells argued that the Tribunal’s power under s 132 of the 2015 Act did not extend to an order requiring the carrying out of works for which development consent from a consent authority had to be obtained.
Held (dismissing the appeal):
(i) An order made by a tribunal or court that is conditional is not made without power. The McDonnells’ sought to argue that the Tribunal’s orders were made without authority as s 132 of the 2015 Act, or the 2015 Act more generally, did not extend into the domain of ordering a party to rectify damage to the common property if to do so required council approval. The Court accepted that the 2015 Act does not expressly provide a power to order demolition of a building – that power rests with the relevant consent authority. However, that alone does not preclude the Tribunal from hearing and ruling on such a dispute. That an order is conditional on some other event is relevant to enforcement, but it does not speak to the Tribunal’s power to make the order in the first place (at [97], [106], [118], [120]).
(ii) The Court accepted that the interplay of the 2015 Act and any local consent authority had not been judicially considered. Despite this, it held that it would not have granted leave to argue those issues as they were not raised before the Tribunal or Appeal Panel (at [179], [180]).
(iii) The McDonnells argued that the Tribunal erred in making an order under s 132 of the 2015 Act as there was no finding of “damage” capable of “repair” to common property, that the word “damage” did not appear in the Senior Member or the Appeal Panel’s reasons, and that there was no evidence of “damage”. The Court was satisfied that the Senior Member’s references to the need for the McDonnells to “make good” and “restore” the common property were consistent with a finding that there was “damage” to the common property. Further, removing the roof of a lot without authority was a clear example of damage to common property (at [124], [142]).
Read the decision on the Caselaw website. | EMG Stone Pty Ltd v Gonda [2022] NSWSC 1674 8 December 2022 – Harrison J
In sum: The Supreme Court summarily dismissed a summons that effectively sought to relitigate a matter heard by the Tribunal. The decision of the Tribunal was not appealable to the Supreme Court and the proceedings appeared to disclose no reasonable cause of action and otherwise be an abuse of Court process.
Facts: The plaintiff (EMG) commenced proceedings in the Tribunal to recover unpaid charges for supply and installation at the defendants’ property. The defendants cross-claimed for defective and incomplete works. The Tribunal ordered EMG to make good the works, following which it would be entitled to the amount claimed. The defendants brought the matter back after the works did not occur, and the Tribunal ordered EMG to pay the defendants the amount required to make good the works. EMG commenced proceedings in the Supreme Court (and in the District Court in identical form and substance, which was dismissed for lack of jurisdiction) effectively seeking to relitigate the matter.
Held (dismissing the summons):
(i) In light of the proceedings so far, in both the Tribunal and the District Court, the Court summarily dismissed the proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4 – no reasonable cause of action was apparent to the Court and the proceedings appeared to be an abuse of process, as the decision did not fall within the meaning of a decision appealable to the Supreme Court in s 82(1) of the Civil and Administrative Tribunal Act 2013 (NSW).
Read the decision on the Caselaw website. | Sunaust Properties Pty Ltd v The Owners – Strata Plan No 64807 [2022] NSWSC 1643 9 December 2022 – Rees J
In sum: The Supreme Court dismissed the application to have the proceeding transferred to the Tribunal given the uncertainty of the Tribunal’s jurisdiction to determine all issues, the quantum of the Claim and Cross-Claim and the estimated length of both hearings. Clauses 5 and 6 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) do not operate to preclude the transfer of proceedings between the Tribunal and a court on the basis that the latter forum does not have jurisdiction. In dismissing the application, both the Supreme Court and the remitted Tribunal proceedings would continue, but the Tribunal does not have jurisdiction to the extent that an issue arising in the Tribunal proceeding is a subject of dispute in the Supreme Court proceeding.
Facts: On 30 October 2020, the plaintiff (Sunaust) commenced proceedings in the Supreme Court (Supreme Court Proceeding) seeking monies under a Caretaker Agreement, damages or quantum meruit in the amount of $216,106.22. The defendant (the OC) Cross-Claimed for equitable set off, to which Sunaust pleaded the OC was estopped by convention, as well as statute-barred. On 20 January 2021, the OC commenced proceedings in the Tribunal (Tribunal Proceeding) seeking an order under s 72(1)(A) of the Strata Schemes Management Act 2015 (NSW) terminating the Caretaker Agreement and an order requiring Sunaust to pay compensation for overpayments made by the OC to Sunaust (overlapping with the OC’s Cross-Claim in the Supreme Court Proceeding). On 12 February 2021, the Tribunal dismissed the proceeding insofar as the Tribunal did not have jurisdiction where the OC claimed overlapping compensation with the Supreme Court Proceeding. On 17 January 2022, the Tribunal gave its decision and terminated the Caretaker Agreement. Sunaust appealed to the Appeal Panel on the ground that the Tribunal had dealt with matters that were the subject of the Supreme Court Proceeding. On 27 July 2022, the appeal was upheld on the ground that the Tribunal did not have jurisdiction to determine the issues central to the application, noting the real risk of concurrent and inconsistent findings. The Tribunal Proceeding was remitted rather than dismissed at first instance, for the OC to determine whether it would proceed without reliance on the issues in consideration in the Supreme Court Proceeding. The OC made a slip rule application to the Appeal Panel and on 27 October 2022 the Appeal Panel affirmed the 27 July 2022 orders; Sunaust filed a Notice of Intention to Appeal. The OC subsequently made an application to transfer the Supreme Court Proceeding to the Tribunal.
Held (dismissing the application):
(i) The Court found that whilst clause 5 of Schedule 4 to the NCAT Act operates to divest the subsequent forum of jurisdiction where proceedings are commenced in both the Tribunal and a court, this proper forum is not final if justice would be best served by determination in another forum. Clauses 5 and 6, governing which forum has jurisdiction to determine a matter and the procedure for transferring a matter from one forum to another respectively, should be read together (where possible) to give coherent and effective operation to both. The vice to which clause 5 is directed – of concurrent proceedings and inconsistent findings – does not re-emerge if proceedings are transferred to one forum (at [15], [23]).
(ii) Sunaust argued that as part of the OC’s claim had been dismissed by the Tribunal for lack of jurisdiction under clause 5, the OC was estopped from bringing a claim for compensation. The Court held that this did not preclude it from transferring the Supreme Court Proceeding to the Tribunal under clause 6 if appropriate to do so. Under clause 6(2), the requirement is not for the Tribunal to have jurisdiction in respect of the issue. Rather, the Tribunal must have jurisdiction in respect of exercising a division function. Once the proceeding is transferred, the Tribunal is no longer deprived of jurisdiction and the Court is divested of its jurisdiction. Clause 6(2) is a discretionary power that turns on the facts of the case to ensure that justice is best served (at [21]-[22], [26], [48], [50]).
(iii) The OC argued that the obvious solution to the determination of issues was to transfer the Supreme Court Proceeding to the Tribunal. The Court determined not to make the transfer given there remained a live issue as to whether the Tribunal had jurisdiction to hear all the issues (though refrained from making a conclusion on this), the increase in estimated quantum of over $3 million in the Claim and $1 million in the Cross-Claim, and the estimated length of the Supreme Court Proceeding to be at least 7 days (at [53], [56], [57], [60]).
Read the decision on the Caselaw website. | Choi v NSW Ombudsman [2022] NSWSC 1681 9 December 2022 – Chen J
In sum: The Supreme Court dismissed the appeal from the Tribunal on the grounds that the proceedings appeared to the Court to be frivolous or vexatious and no reasonable cause of action had been disclosed, on the basis that the appeals to the Supreme Court regarding both decisions were incompetent.
Facts: In September 2015 Ms Choi made an anonymous complaint to the NSW Ombudsman (Ombudsman). Ms Choi subsequently lodged a complaint against the Ombudsman with the Anti-Discrimination Board under the Anti-Discrimination Act 1977 (NSW) (AD Act) regarding the handling of her initial complaint. The Board declined the complaint on the basis that it was “lacking in substance and misconceived” and so Ms Choi requested the complaint be referred to the Tribunal. Orders were made by the Tribunal on 19 October 2018 appointing a litigation guardian, and on 18 December 2018 dismissing the proceedings. Ms Choi’s appeal was dismissed by the Appeal Panel on 9 March 2020. Ms Choi appealed to the Court of Appeal, which held that the appointment of the litigation guardian was invalid and remitted the proceedings to the Tribunal. Ms Choi now appealed the subsequent orders made by the Tribunal on 26 July 2021 (refusing an application to appoint a litigation guardian) and 17 March 2022 (refusing leave to bring proceedings against the Ombudsman for discrimination and victimisation). The Ombudsman sought summary dismissal.
Held (dismissing the appeal):
(i) The Ombudsman’s argument that no appeal lay in the 26 July 2021 and 17 March 2022 orders was correct – both appeals were incompetent. As a result, the Court dismissed the proceedings on the grounds of Uniform Civil Procedure Rules 2005 (NSW) r 13.4(1)(a) and (b), appearing frivolous or vexatious and with no reasonable cause of action disclosed (at [33], [39], [40]).
(ii) The 26 July 2021 decision was not an appealable decision to the Supreme Court within the meaning of s 82(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), not being a decision made by an Appeal Panel in an internal appeal, a decision made by the Tribunal in an external appeal, or a decision by the Tribunal imposing a civil penalty. Any appeal must be to the Appeal Panel as it had internal appeal jurisdiction by virtue of NCAT Act s 32 (at [28], [29], [33]).
(iii) Similarly, the 17 March 2022 decision did not fall within the meaning of s 82(1) of the NCAT Act, nor was it an internally appealable decision (decisions of the Tribunal with respect to granting leave for the purpose of AD Act s 96 are excluded by NCAT Act Schedule 3 Part 6 clause 15(a)). Ms Choi’s only entitlement to seek to challenge the 17 March 2022 was judicial review (at [34], [36], [37]).
Read the decision on the Caselaw website. | James v Jandson Pty Ltd [2022] NSWSC 1686 12 December 2022 – N Adams J
In sum: The Supreme Court dismissed an appeal from the Appeal Panel, finding that the Appeal Panel had not relied on its own view of the evidence but had applied the proper test in exercising its discretion. The Appeal Panel had correctly engaged in the task of considering the adequacy and sufficiency of the evidence before the Tribunal, which is distinct from a re-evaluation of the evidence.
Facts: The plaintiffs (the Owners) entered into a contract for the building of their home with the defendant (the Builder) on 23 March 2009. It was common ground that the Owners did not commence proceedings (which were transferred to the Tribunal) within the statutory limitation period arising from the 2009 contract, but the Owners sought to argue that a new contract had been formed between the parties and so any claim for breaches of statutory warranties was brought within time. The new contract was alleged to have been formed as a result of a site meeting with representatives of the Builder, a structural engineer, and an engineer engaged by the Owners. Following the meeting, the engineer sent an email to the Owners’ solicitor describing what the engineer understood to be the agreement reached as to the scope of rectification works to be undertaken by the Builder. The solicitor for the Owners subsequently sent an email to the Builder. The Builder rejected this offer and sent a counter-offer. There was no further written correspondence. On 17 July 2020, the Tribunal found in favour of the Owners, including that a new contract had been formed. The Builder successfully appealed to the Appeal Panel, which found that there was no new contract. The Owners appealed to the Supreme Court.
Held (dismissing the appeal):
(i) The Court rejected the Owners’ argument that a ground of appeal alleging error in finding that a contract was formed always raises a question of law, although the Court acknowledged that it might, depending on how the ground is pleaded. For example, a question as to whether certain facts are capable of giving rise to a finding that a contract was formed, or misapplication of the relevant contract law to those facts, would give rise to a question of law. There was no evidence to infer that any offer had been accepted on the Owners’ behalf beyond the continuation of some remedial work and that the Owners did not withdraw access – those facts alone could not establish an agreed scope of works (at [70], [71], [91], [103]).
(ii) Not satisfied that the ground raised a question of law or was in any event established, the Court found that the Appeal Panel had not “re-evaluated” the evidence of witnesses. The Appeal Panel did not fail to have regard to the Tribunal’s advantage of observing the witness in the witness box and nothing in its decision demonstrated a reassessment of credit or demeanour. Its task was to consider the adequacy and sufficiency of evidence before the Tribunal, which is distinct from a re-evaluation of evidence (at [117], [118], [119]).
(iii) The Owners also argued that the Appeal Panel erred in exercising its discretion to grant leave on a mixed question of fact and law. The Owners submitted that the Appeal Panel had relied on its own view of the evidence, and in doing so overlooked critical features, in finding (without identifying what evidence) that the Tribunal’s findings were against the weight of the evidence. The Court held that the Appeal Panel applied the proper test and did not err in its discretion in granting the Builder leave to appeal (at [145], [152], [157]).
Read the decision on the Caselaw website. | Singh v Tidball [2023] NSWSC 96 8 February 2023 – Cavanagh J
In sum: The Supreme Court summarily dismissed one of five sets of proceedings commenced by Mr Singh arising from an Appeal Panel decision to extend time for the issuing of a warrant of possession. Mr Singh was not a party to the lease and did not have standing to bring the proceeding. The principal order sought would have no utility and the proceeding was an abuse of process.
Facts: The Tribunal made orders terminating a residential tenancy due to the tenants’ failure to pay rent, for possession to be given as at the date of termination and for the tenants to pay a daily occupation fee until vacant possession was given. Mr Singh was the father of the third plaintiff and married to the second plaintiff. Mr Singh was removed from the proceedings on the basis that he was not a tenant. The tenants then lodged an appeal, which was dismissed. Subsequently, the order for possession was suspended subject to the payment of rental arrears and the occupation fee. No rent had been paid since March 2022. Arising from the Tribunal proceedings, Mr Singh has commenced five separate Supreme Court proceedings. This proceeding related to the decision of the Appeal Panel to extend the time for the issuing of a warrant of possession and Mr Singh’s claim that the Appeal Panel had no jurisdiction or power to make such orders. The owners filed a motion that the proceedings be dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 13.4 or in the alternative that Mr Singh should be removed as a plaintiff.
Held (dismissing the appeal):
(i) Mr Singh accepted that there was no utility in the principal order sought by the plaintiffs to restrain the Tribunal from issuing a warrant of possession. Further, no basis was advanced on which a warrant of possession would not be issued. In terms of the practical outcome of the orders sought by the tenants, even if such an order was made, nothing would prevent the owners from reapplying to the Tribunal to seek another order for an extension of time. As the orders served no utility, the proceedings were an abuse of process (at [29], [33], [50]).
(ii) The Supreme Court noted that the Tribunal, Appeal Panel and five resulting Supreme Court proceedings were evidently driven by Mr Singh, rather than the tenants. It was the Court’s view that Mr Singh had no standing – he was not a party to the lease and adduced no evidence that he was a tenant beyond a purported oral agreement with the managing agent. The proceeding was dismissed against all of the defendants (including the Tribunal, which was named as the fifth defendant). It was not apparent on the face of the statement of claim why the three non-owners had been joined as defendants to the proceeding and there was no basis by which they could be joined (at [10], [54], [57]).
(iii) Mr Singh acknowledged to the Court that the effect of the appeal was the staying of the original orders, with the consequence that the owners were unable to do anything to regain possession whilst the tenants continued to not pay rent or the occupation fee. Mr Singh made plain that he would appeal to the Court of Appeal should the proceedings be dismissed. The Court expressed its “considerable concern and disquiet” about the proceedings, and that Mr Singh was pursuing five sets of proceedings arising out of the Tribunal decisions. Particularly, it was not apparent that the Appeal Panel had in any way exceeded its jurisdiction (at [34], [35], [41], [53]).
Read the decision on the Caselaw website. | Supreme Court of Victoria | German v State Trustees Ltd [2023] VSC 7 16 January 2023 – Richards J
In sum: VCAT was not exercising federal jurisdiction in a matter between residents of different States within the meaning of s 75(iv) of the Constitution in making guardianship and administration orders for a woman who moved interstate. VCAT was exercising administrative power, not judicial, in making such orders. Further, the determination of whether guardianship and administration orders should be made is not an adversarial process, but a broad inquiry as to the needs and wishes of the subject person.
Facts: On 30 November 2017, the appellant (KG) made an application to VCAT for orders appointing him as the guardian and administrator of his mother (EG). On 15 January 2018, the Tribunal instead appointed the Public Advocate as EG’s guardian and the respondent (State Trustees) as administrator. EG moved to Western Australia with KG and lived there for most of 2018 and 2019, before returning to Victoria in late 2019. The guardianship order revoked on 31 March 2019. In March 2020, KG applied to VCAT for reassessment of the 2018 orders and for orders appointing him as EG’s guardian and administrator. The application was dismissed on 21 May 2020. On 10 March 2021, VCAT conducted a further reassessment of the administration order, and ordered that the administration order would apply until VCAT made another order. KG sought to appeal to the Supreme Court from the 21 May 2020 and 10 March 2021 orders on the ground that VCAT had incorrectly exercised federal jurisdiction in a matter between residents of different States within the meaning of s 75(iv) of the Constitution.
Held (refusing leave to appeal):
(i) The Tribunal’s functions in making guardianship and administration orders are administrative rather than judicial in nature. The relevant Act did not require the Tribunal to make a binding determination of existing legal rights and obligations. Instead, it involved the consideration and application of protective criteria. As a result, the impugned orders could not have involved the exercise of federal jurisdiction (at [27], [28], [32]).
(ii) Whilst the relevant Act contemplated that there would be parties to a proceeding on an application for a guardianship or administrative order, it did not contemplate an adversarial dispute between those parties. The Tribunal conducts a broad inquiry in order to ascertain the wishes of the relevant persons – that does not mean that an application is between those persons. The Tribunal’s function was not to resolve the background family dispute; it was solely concerned with whether guardianship and administrative orders should be made and what such orders would look like. The proceedings were not “between parties” (at [33], [35], [37]).
Read the decision here. | | 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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