NCAT Legal Bulletin Issue 3 of 2022
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 and the Supreme Court of New South Wales, including:
Citta Hobart Pty Ltd & Anor v Cawthorn [2022] HCA 16: The majority of the High Court held that, where a claim or defence is raised under sections 76(i) or 76(ii) of the Constitution, it must be ‘genuinely raised’ and ‘not incapable of legal argument’. Where this has been satisfied, the Tribunal is correct to dismiss proceedings for want of jurisdiction. Pridgeon v Medical Council of New South Wales [2022] NSWCA 60: The Court of Appeal overturned the decision of the Tribunal to suspend Dr Pridgeon’s medical registration. It held; the emergency powers exercised under s 150 National Law was not warranted, public interest relates to a risk to the public’s health and safety and considered the weight to be afforded to the presumption of innocence. Mirvac Homes (NSW) Pty Limited v Noakes [2022] NSWSC 596: The Supreme Court held that Tribunal had an implied power to enforce a writ of possession, where orders for possession had been made pursuant to s 21 Agricultural Tenancies Act 1990. It avoided a dual system, where applications and orders were made in the Tribunal but could only be enforced by the Supreme Court. Rowe v Kincumber Nautical Village Pty Ltd [2022] NSWSC 533: The Supreme Court used its discretion to allow an appeal under s 83(1) Civil and Administrative Tribunal Act 2013 to be conducted as representative proceedings on behalf of a “class” of affected persons. AS by her Tutor SS v NSW Public Guardian (No 2) [2022] NSWSC 708: Proceedings in the Supreme Court, commenced by the Tutor on behalf of a person with incapacity, was held not to be personally liable for the costs of the Public Guardian in proceedings which failed in their entirety. Council of the New South Wales Bar Association v Rollinson [2022] NSWSC 407: A barrister was held to be in contempt of the Supreme Court, breaching undertakings and injunctions which prevented him from practising law, advertising his services and appearing in Court. He was imprisoned for 9 months. Buckley v Council of the Law Society of New South Wales [2022] NSWSC 328: The plaintiff sought judicial review of the decision of the Law Society to suspend his practising certificate, asserting the Law Society had misconstrued the law and fell into jurisdictional error. The Plaintiff sought a certiorari, a declaration and injunctive relief. Each was refused, the Law Society was not in error and a merits review in the Tribunal (which was open to the plaintiff) was the more appropriate course of action.
| | | Citta Hobart Pty Ltd & Anor v Cawthorn [2022] HCA 16 4 May 2022 – Kiefel CJ, Gageler, Keane, Gordon, Edelman, Gleeson and Steward JJ
In sum: The majority of the High Court held, where a claim or defence is raised under sections 76(i) or 76(ii) of the Constitution, it must be ‘genuinely raised’ and ‘not incapable of legal argument.’ Where this has been satisfied, the Tribunal is correct to dismiss proceedings for want of jurisdiction. The Tribunal is invested with non-jurisdictional power to determine the confines of its own jurisdiction for this purpose.
Catchwords: Constitutional law (Cth) – Chapter III – Where respondent's complaint made under Anti Discrimination Act 1998 (Tas) ("State Act") was referred to Anti-Discrimination Tribunal ("Tribunal") – Where appellants in defence asserted provisions in State Act inconsistent with Disability Discrimination Act 1992 (Cth) and Disability (Access to Premises – Buildings) Standards 2010 (Cth) – Where Tribunal dismissed complaint for want of jurisdiction without addressing merits of defence – Where Full Court of Supreme Court of Tasmania on appeal considered merits of, and rejected, defence – Where Tribunal not "court of a State" within meaning of ss 77(ii) and 77(iii) of Constitution – Where Chapter III implication recognised in Burns v Corbett (2018) 265 CLR 304 prevents State Parliament conferring on State tribunal that is not "court of a State" judicial power with respect to any matter of kind described in ss 75 and 76 of Constitution – Whether Tribunal exercised judicial power when determining complaint under State Act – Whether Tribunal had jurisdiction to hear and determine complaint – Whether defence needed to meet some threshold of arguability to give rise to matter of kind described in ss 76(i) and 76(ii) of Constitution.
Words and phrases – "abuse of process", "claim or defence that amounts to 'constitutional nonsense'", "colourable", "genuinely in controversy", "involving no 'real question'", "issue capable of judicial determination", "judicial power", "justiciable controversy", "limits of jurisdiction", "manifestly hopeless", "matter", "no reasonable prospects of success", "not incapable on its face of legal argument", "single justiciable controversy", "State jurisdiction", "State tribunal", "summarily dismissed", "threshold of arguability".
Judgment (allowing the appeal):
(i) Link to the full judgment is here. (ii) Link to the High Court summary is here.
Read the decision on the High Court of Australia website. | Court of Appeal of New South Wales | Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 14 April – Bell CJ, White JA and Harrison J
In sum: A suspension of a medical practitioner’s registration was overturned. The Court held that the emergency powers exercised by the Tribunal to suspend the practitioner’s registration were improperly invoked. It held; the power to take urgent action in the ‘public interest’ was not a principle to be applied at large, but rather construed to mean in the protection of the public’s health and safety. Further, more weight needed to be afforded to the presumption of innocence.
Facts: Dr Pridgeon was a medical practitioner whose registration was suspended by the Medical Council of New South Wales (Medical Council) following several charges by the Australian Federal Police in relation to child stealing, dealing with the proceeds of crime and unlawful stalking. Each of these had been withdrawn by September 2020. The charges related to Dr Pridgeon, who had supported two children, following a disclosure by their mother that the father had been sexually abusing them. Dr Pridgeon’s care of the children contravened the Family Law parenting orders which required the children to live with their father. The Medical Council invoked emergency powers of suspension under s 150 of the Health Practitioner Regulation National Law (NSW) (National Law), which it exercised in the “public interest” and for the “protection of the public’s health and safety”. In losing his internal appeal to the Medical Council under s 150A of the National Law, the matter was referred to the Tribunal, which upheld the suspension on the grounds of public interest. Dr Pridgeon sought a review of the Tribunal’s decision.
Held (allowing the appeal):
(i) Dr Pridgeon contended that his indefinite suspension was an error, that s 150 was used for an improper purpose and the section was engaged without any of the “factual basis” which necessitated the exercise of such an extreme protective power. Pursuant to s 145D of the National Law, the Medical Council is under an obligation to refer any serious complaints which may warrant suspension to the Tribunal, therefore, the decision of the Medical Council to suspend Dr Pridgeon was only ever to be a decision of the Tribunal. Further, the Medical Council received no complaints (from either a patient or another medical practitioner) which triggered the emergency powers. As such, issues concerning Dr Pridgeon being a “fit and proper person” or his proficiency in his medical practice were never in question. The Court held that absent any complaint, the decision of the Medical Council was made without power. It held that s 150 should “only be invoked as an emergency power where the circumstances are urgent.” The Court held that throughout the duration of the matter, there was no demonstrated urgency which would have warranted the use of the emergency powers (at [18], [24], [50], [70]).
(ii) The Court held that the Medical Council’s conclusion, that Dr Pridgeon posed a risk to the health and safety of the public, “had no evidentiary foundation and was irrational.” The Tribunal stated that the purpose of the public interest was to uphold the public’s confidence in the medical profession. It held, the charges Dr Pridgeon faced (despite their withdrawal) brought the profession into disrepute as it contravened the obligation of medical practitioners to “act lawfully at all times” and had the potential to undermine the rule of law. Whilst the term “public interest” is undefined for the purposes of the National Law, the powers under s 150 are to be exercised for the “protection of the public”. In the present circumstances, there was insufficient connection between the impugned conduct and a finding that it was “in the public interest” for his registration to be suspended (at [17], [57], [61]).
(iii) The Court observed that both the Medical Council and the Tribunal equated criminal charges with the determination of guilt. There was a clear suggestion by the Tribunal that Dr Pridgeon’s suspension was “justified” as being charged with a criminal act reduced the public’s trust in the medical profession at large. This was rejected by the Court where Dr Pridgeon had never been convicted of any offence, and all charges were eventually withdrawn. (We note from the Tribunal’s decision that whilst some charges had been withdrawn at the time of the decision, there remained some outstanding charges: see Pridgeon v Medical Council of New South Wales [2021] NSWCATOD 89 at [29]). The Court held the Tribunal’s assumption that a medical practitioner could not continue to practise if the practitioner was subject to criminal charges, deprived the presumption of innocence “of any meaningful content”. Ultimately, the Court held that the Tribunal paid “lip service” to the presumption of innocence and that whilst it did not make findings of guilt, “its conclusions were patently infected by assumptions of guilt”. The decisions of the Medical Council and the Tribunal were set aside (at [50], [65], [69]).
Read the decision on the NSW Caselaw website. | Supreme Court of New South Wales | Mirvac Homes (NSW) Pty Ltd v Noakes [2022] NSWSC 596 17 May 2022 – Johnson J
In sum: The Court held that NCAT had an implied power to issue a warrant for possession, enforcing an order which was made by the Tribunal pursuant to s 21 of the Agricultural Tenancies Act 1990. The Court clarified that it was unnecessary for the plaintiff to make an application to the Supreme Court to enforce a writ of possession.
Facts: The Plaintiff (Mirvac) obtained orders by consent in NCAT, terminating the defendant’s (Noakes) possession of two properties, pursuant to s 21(1)(i) Agricultural Tenancies Act 1990 (ATA). Noakes was ordered to vacate the premises, perform certain work on the properties and to leave them in a neat and tidy state for Mirvac to repossess on 14 March 2022. The premises were not vacated by the required date. On 15 March 2022, Mirvac applied to NCAT to issue a warrant of possession. Due to concerns about continuing damage to the properties, Mirvac sought for the matter to be dealt with expeditiously seeking enforcement as soon as possible. Upon instruction by the Deputy Divisional Registrar of NCAT, Mirvac filed a Notice of Motion in the Supreme Court seeking leave for a writ of possession. The key issue before the Court was whether NCAT or the Supreme Court was the most appropriate avenue to seek enforcement of the orders made by the Tribunal.
Held:
(i) Where possible, the Court sought to avoid the “fragmentation of civil proceedings”. Consequently, it rejected a dual system, where matters were determined in NCAT but any orders made by the Tribunal required enforcement by the Supreme Court. The Court stated, where NCAT is the proper forum to determine relief under the ATA, it is “entirely understandable” that all powers and functions would be given to NCAT to determine the “finality” of that application. Whilst there was no express statutory power in the ATA to issue a writ or warrant for the possession of land, the power could be implied as a “proper exercise of NCAT’s jurisdiction.” The provisions in ss 21(1)(a), being the power to make an order and s 21(4)(b), being the power to make “any ancillary order it sees fit” indicate “there is no legislative intention to confine the scope of the orders that can be made.” His Honour also rejected the dual system due to the possibility of “additional costs and consequential delay”. This opposed the objectives of NCAT, to resolve issues “justly, quickly, cheaply and with as little formality as possible” per s 3(c) Civil and Administrative Tribunal Act 2013 (at [27], [31], [32], [36], [38]).
Read the decision on the NSW Caselaw website. | Rowe v Kincumber Nautical Village Pty Ltd [2022] NSWSC 533 4 May 2022 – Rothman J
In sum: The Court exercised its discretion, to allow an appeal of an Appeal Panel decision commenced in the Supreme Court, to be conducted as representative proceedings under s 157 Civil Procedure Act 2005 (NSW) (CPA). In construing the term “claim” broadly, a statutory right of appeal under s 83(1) NCAT Act was sufficient to be considered a “claim” for the purpose of s 157 CPA. It was held that circumstances which gave rise to the appeal, and the affected interests of the parties were similar enough to warrant representative proceedings in the Court.
Facts: 52 separate homeowners in the Kincumber Nautical Village commenced proceedings in the Tribunal, which concerned an increase to site fees by Kincumber Nautical Village Pty Ltd (the Village). The first instance decision found that the increase was not a “fixed method” which accorded with the procedure established by ss 65 and 66 of the Residential Land Lease Communities Act 2013 (NSW) (RLLC). This decision was subject to an internal appeal which set aside the first instance decision and held the “fixed calculation” method employed by the Village was a “fixed method” for the purpose of s 66 RLLC, therefore the Village was not in breach. A single homeowner (Rowe) sought leave in the Supreme Court under s 83(1) Civil and Administrative Tribunal Act 2013 (NCAT Act), to appeal the Appeal Panel’s decision on a question of law. Rowe additionally sought for the summons be treated as a ‘representative proceeding’ pursuant to s 157 Civil Procedure Act 2005 (NSW) (CPA), where each of the homeowners were to be treated as members of a class. The current decision only concerns whether Rowe’s proceedings should be considered representative proceedings.
Held:
(i) Central to allowing the commencement of representative proceedings, was the construction of the term “claim” for the purpose of s 157 CPA. Section 157(1) CPA stipulates that an application should only be allowed where: there are 7 or more applicants, the claims from all persons are against the same party, arose out of the same circumstances and gave rise to a substantial question of law. The term “claims” was undefined in the CPA. The Court held it should be given a broad construction and there was no impediment precluding a statutory right of appeal from being a “claim” for the purpose of s 157. As such, it held that s 83(1) NCAT Act was a “statutory remedy” and is considered a claim where the purpose of proceedings is to determine a question of law (at [15], [44] and [45]).
(ii) The Court also held that allowing the representative proceedings was in accord with the overriding purpose of the CPA; to facilitate “just, quick and cheap resolution of the real issues in the proceedings.” Conducting the claim as a class reduced filing fees, reduced the number of represented litigants (to one person in lieu of 52) and would aim to resolve the real and singular issue (being the Appeal Panel decision) which affected all represented persons (at [47], [49]).
Read the decision on the NSW Caselaw website. | AS by her tutor SS v NSW Public Guardian (No 2) [2022] NSWSC 708 31 May 2022 – Robb J
In sum: A tutor who commenced proceedings on behalf of a person with mental incapacity, unsuccessfully challenged a Guardianship Order made by the Tribunal. Despite the general rule in the Supreme Court that costs follow the event, the Tutor was not liable personally to pay the Public Guardian’s costs. The Court observed there are exceptional factors that influence costs issues in the Court’s Protective Jurisdiction and the risk of personal liability for costs should not impede a person’s right to appeal a decision.
Facts: The Tutor for AS (Tutor) commenced an appeal in the Supreme Court of Guardianship Orders made by the Tribunal, under instruction from AS. The appeal failed in its entirety. Justice Black held the Tribunal made no error of law. Following this, the Public Guardian sought costs against the Tutor in her personal capacity. The reason for personal costs against the Tutor is bifold; costs cannot be enforced against an incapable debtor, and it ensures the subject person is not liable for costs if they have been unnecessarily incurred by a Tutor. In these proceedings, the Public Guardian alleged the Tutor was the “controlling mind” of the proceedings and costs should follow the event. The Tutor argued the proceedings were properly commenced as she had enduring power of attorney for AS, who sought to challenge the Tribunal’s decision.
Held:
(i) The Court noted the difference in commencing an internal appeal in the Tribunal which is a no costs jurisdiction (s 60(1) Civil and Administrative Tribunal Act 2013 (NCAT Act)) and commencing an appeal in the Supreme Court under Sch 6 Cl 12 of the NCAT Act. It held, the Court’s power to make costs orders under s 98 Civil Procedure Act 2005 is engaged by proceedings which challenge guardianship orders. Tutors thereby become subject to the risk of adverse costs orders. However, the Court observed that often, candidates for Tutorship are family members of subject persons. This created a “serious problem” where a subject person could be deprived of the “right and ability to conduct a meritorious appeal” by way of their Tutor, who does not wish to assume the risk of “ruinous consequences” if an adverse cost order was to be made (at [26], [31]).
(ii) His Honour held that the rights of a subject person to appeal a guardianship order should be “regarded as more valuable and deserving of the protection of the law” than ordinary property rights. The Court’s Protective Jurisdiction had developed an exception to the general rule that costs follow the event (r 42.1 UCPR), and the Court is more inclined to exercise its discretion in such cases. Seeking to avoid circumstances where a Tutor would forgo a subject person’s right to appeal a Guardianship Order where there was an “inability to provide security for costs,” the Court held that discretion should be exercised and “careful analysis of the evidence” was required to determine if a costs order should be made. The Court held that in the present case, the proceedings were commenced under instruction of the subject person and were not wholly without merit, despite being unsuccessful. The Court made no order as to costs (at [31], [34], [41]).
Read the decision on the NSW Caselaw website. | Council of the New South Wales Bar Association v Rollinson [2022] NSWSC 407 8 April 2022 – Beech-Jones CJ at Common Law
In sum: Mr Rollinson, a former barrister, agreed to an undertaking with the Court that he would not practise, nor would he hold himself out as a barrister after failing to pay his licensing fee. Over the course of several months he breached this undertaking by continuing to advertise his legal services and appearing in Court. An injunction was issued to restrain Mr Rollinson him from any of the above actions. He was held to be in contempt of Court when he then contravened the injunction. He was committed to a correctional facility for a period of 9 months, the remainder of his 3 year sentence was suspended on the condition he complied with the Court’s orders.
Catchwords: CONTEMPT – Barrister – ceased to hold practising certificate – continued to practice – gave undertaking to Bar Association – breached – gave undertaking to Court – breached – injunctions issued by Court – breached – wilful disobedience to Court orders – plea of guilty – psychiatric condition – approach to imposition of punishment – imprisonment – suspension of punishment
Held:
(i) Link to the Supreme Court’s case summary is here.
Read the decision on the NSW Caselaw website. | Buckley v Council of the Law Society of New South Wales [2022] NSWSC 328 24 March – Ward CJ in Equity
In sum: A solicitor, Mr Buckley, sought a judicial review of the Council of the Law Society of New South Wales (Council) decision to suspend his practising certificate under s 82(1)(d) of the Legal Profession Uniform Law (NSW). Mr Buckley sought relief in the nature of certiorari, a declaration and an injunction, contending the Council's decision was a jurisdictional error and misunderstood the law. The Court refused to engage in the merits of the Council’s findings, it held there was no jurisdictional error and remedial relief in the form Mr Buckley pleaded was refused. The Council had regard to the “paramountcy of public interest in the administration of justice” when administering the suspension of Mr Buckley, where actions and inappropriate comments on social media carried the “imprimatur” of an officer of the Court. Finally, Mr Buckley improperly sought judicial review where he had a statutory right to merits review under s 100, Uniform Law in the Tribunal.
In sum: ADMINISTRATIVE LAW – Judicial review of administrative action – Where plaintiff (a solicitor) suspended by the Council of the Law Society of New South Wales (Council) following comments made by plaintiff on social media in relation to the consequences of a judgment of this Court – Where plaintiff represented inter alia that a judge of this Court condoned murder and other violent crimes – Where plaintiff alleges that the suspension decision is vitiated by jurisdictional error due to a failure by the Council to interpret and apply s 82 of the Legal Profession Uniform Law (NSW) in accordance with the implied freedom of political communication – Where plaintiff alleges jurisdictional error by virtue of the failure to consider alternative sanctions – Distinction between principles of constitutional law relevant to the implied freedom of political communication and principles of administrative law relevant to exercises of statutory powers or discretions – Whether failure to apply “proportionality testing” to exercise of power under s 82 constitutes jurisdictional error – ADMINISTRATIVE LAW – Remedies – Certiorari, declaration and injunction – Discretionary nature of prerogative writs – Availability of appeal or merits review
Held (Summons dismissed):
(i) Link to the Supreme Court’s case summary is here.
Read the decision on the NSW Caselaw website. | | 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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