NCAT Legal Bulletin Issue 4 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 decisions from the High Court of Australia, the Court of Appeal of New South Wales and the Supreme Court of New South Wales published in June, July and August 2022.
Fairbairn v Radecki [2022] HCA 18: The High Court held, that NCAT’s intervention to appoint a trustee, following the refusal of a former partner to make adjustments or financial contributions to his partner’s rapidly deteriorating cognitive condition, contributed to a finding of a relationship “breakdown” for the purposes of 90SM of the Family Law Act 1975 (Cth). Wu v Nursing and Midwifery Board Australia [2022] NSWCA 102: An application for pro bono assistance was refused by the Court of Appeal, where there was little merit to the appeal and Ms Wu conceded she would continue proceedings irrespective of that fact. Chief Commissioner of State Revenue v E Group Security Pty Ltd [2022] NSWCA 115: The Court of Appeal dismissed an appeal, where there was no significant reason to depart from the orthodox approach when construing s 37 Payroll Tax Act 2007 (NSW). Fasako Pty Ltd v TianyD Beauty & Hairdressing Australia Pty Ltd [2022] NSWCA 112: The Court of Appeal refused leave to hear an appeal from the Supreme Court’s decision, where the appellant failed to precisely identify an error of law or how the primary judge should have decided the case differently. Morsingh v Health Care Complaints Commission [2022] NSWCA 106: The Court of Appeal dismissed two separate applications to appeal NCAT’s decision to cancel Dr Morsingh’s registration. It held that the challenges to the factual findings had no substance and that NCAT had made no error in either decision. Health Care Complaints Commission v Robinson [2022] NSWCA 164: The finding of unsatisfactory professional conduct did not give rise to a right of appeal under cl 29 of Sch 5 to the Civil and Administrative Tribunal Act 2013 (NSW), where the decision was neither an ancillary nor interlocutory issue. However, NCAT erred in law when it constructively failed to exercise its jurisdiction by falling to address one of the submissions of the Health Care Complaints Commission. Office of the Children’s Guardian v EQE [2022] NSWSC 871: The Supreme Court set aside the decision of the NCAT Appeal Panel to award a Working with Children’s Check Clearance, where it had misapplied ss 18(2) and 30(1A) Child Protection (Working with Children) Act 2012. The Court clarified how to assess whether a person who is acquitted of child sexual related charges still posed a real risk to the safety of children. Secretary, NSW Department of Communities and Justice and Anor v ZYM and Anor [2022] NSWSC 935: The Appeal Panel dismissed proceedings and referred the matter to the Supreme Court, where the Supreme Court was to authorise the remuneration of a private financial manager, a power the Tribunal did not possess. Zioukin v Lang [2022] NSWSC 823: A tenant, seeking to set aside a termination and possession order under s 85 Residential Tenancies Act 2010 for alleged “retaliatory” behaviour of the landlord, was refused leave to appeal. The tenant failed to produce evidence of such behaviour or attend hearings in the proceeding. Keevers v Sarraf Property Group Pty Ltd [2022] NSWSC 1017: A party was determined to be properly joined to the appeal, despite not being included in the first instance decision. Where the outcome affected the parties’ real interests and there would otherwise be no contradictor in the proceedings, it was an appropriate exercise of the powers under s 44(2) Civil and Administrative Tribunal Act 2013 for NCAT to join it as a party. Coster v Compass Housing Services Co Ltd t/as Home in Place [2022] NSWSC 1067: A social housing tenant successfully challenged the decision of NCAT at first instance to terminate her lease. The Appeal Panel erred in law by failing to consider whether her breach was insufficient to warrant the termination of her social housing tenancy per s 87 Residential Tenancies Act 2010. Norkin v University of New England [2022] NSWSC 819: Where the Appeal Panel had erred in categorising a particular matter as a question of fact instead of a question of law, leave to appeal was still refused. As the substance of the legal issue was not in dispute, there was no utility in an appeal.
| | | Fairbairn v Radecki [2022] HCA 18 11 May 2022 – Kiefel CJ, Gageler, Keane, Gordon, Edelman, Gleeson and Steward JJ
In sum: The High Court considered what was meant by a “breakdown” of a relationship for the purpose of s 90SM of the Family Law Act 1975 (Cth). It was held in this case (among other persuasive factors), that Mr Radecki’s persistent refusal to make any adjustments for the benefit of Ms Fairbairn demonstrated the cessation of a genuine domestic relationship. This was in part, evidenced by Mr Radecki’s parsimonious attempts to make financial contributions to support Ms Fairbairn’s care following her rapid cognitive decline, to the extent that intervention was required from NCAT to appoint a trustee to manage her health and financial affairs.
Catchwords: Family law – De-facto relationship – Breakdown – Proper test for determination of breakdown of de-facto relationship – Where s 90SM of Family Law Act 1975 (Cth) provided, in property settlement proceedings after breakdown of de-facto relationship, court may make order altering interest of parties to de-facto relationship in property – Where, in 2005 or 2006, applicant and respondent entered into de-facto relationship – Where basis of relationship living together on domestic basis with clear understanding as to separation of each other’s financial affairs and property interests – Where, in 2015, applicant began to suffer from rapid cognitive decline – Where applicant incapable of managing own affairs and, in 2018, New South Wales Trustee & Guardian appointed to act for applicant – Where Public Guardian placed applicant into aged care facility – Where respondent did not provide financial support for applicant, continued to reside in applicant’s property and prevented Trustee from selling applicant’s property – Where Trustee commenced proceedings against respondent in Federal Circuit Court seeking order for property settlement pursuant to s 90SM, claiming applicant and respondent’s de-facto relationship had broken down – Where primary judge declared de-facto relationship had broken down no later than 25 May 2018 – Where respondent successfully appealed to Full Family Court – Whether basis of applicant and respondent’s de-facto relationship no longer existed – Whether de-facto relationship had broken down.
Judgment (allowing the appeal):
(i) 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 | Wu v Nursing and Midwifery Board Australia [2022] NSWCA 102 22 June 2022 – Gleeson JA
In sum: Ms Wu made an application to the Court of Appeal, seeking an order for pro bono legal assistance under r 7.36 Uniform Civil Procedure Rules (UCPR). Ms Wu sought to challenge a decision of NCAT, which affirmed the decision of the Nursing and Midwifery Board Australia, to refuse her provisional registration as a nurse. Where the Court found little merit in the appeal, pro bono assistance was refused.
Facts: Ms Wu sought an application for pro bono assistance under r 7.36 UCPR, to challenge a decision of NCAT which refused to renew her provisional registration as a nurse. She sought this following the refusal of legal aid. Ms Wu argued that she faced significant disadvantage as a single mother, to a son with disability and following her de-registration she had not earned a wage. As such, she sought to challenge the Tribunal’s decision in the Court but did not have the financial means to do so. She raised four grounds of “appeal” from the Tribunal’s decision. First, that the Tribunal had regard to an irrelevant matter. Namely, that the Tribunal took into consideration her role as sole director of Transcon Holding Pty Ltd (Transcon), an aged care service provider which had its approval revoked by the Aged Care Quality and Safety Commission for significant deficiencies and non-compliance with care standards. Second, that the Tribunal made an evaluative judgment on her character based on the incomplete disclosure of her national criminal record and her failure to attend the hearing on account of being “too busy.” Third, that the Tribunal erroneously held that her experience in running Transcon did not meet the definition of “practice” in the prescribed standard, being the Registration Standard: Recency of Practice. Finally, the costs order made by the Tribunal was “unfair and unjust” as she had not received a wage since 2019.
Held (dismissing the appeal):
(i) Despite raising four grounds of appeal, Ms Wu failed to identify any question of law, and failed to seek leave to appeal on any other matter. Ms Wu also conceded that she would pursue an appeal, irrespective of whether a pro bono appointed barrister advised the appeal had little prospect of success. Ultimately, whilst it had the power to make a referral for pro bono assistance (r 7.36, UCPR), it must be done in the “interests of the administration of justice”.
(ii) Pro bono assistance is ‘a valuable and scarce resource’ which is dependent on the “goodwill” of members of the profession, therefore absent any merit to the case, a referral will rarely be in the interests of the administration of justice. Pro bono assistance was refused on three grounds; first, the appeal lacked merit. Second, any advice given to Ms Wu was unlikely to deter her from pursing “futile litigation.” And finally, it was rejected that Ms Wu lacked the financial means. She had a home valued at $2.2 million and she was merely reluctant to borrow against the security of that asset. This differed from a self-represented litigant who was “completely lacking” in financial means (at [15], [16], [17], [18], [19], [20]).
Read the decision on the NSW Caselaw website. | Chief Commissioner of State Revenue v E Group Security Pty Ltd [2022] NSWCA 115 6 July 2022 – Bell CJ, Gleeson JA, Leeming JA
In sum: The Court of Appeal dismissed an application challenging the construction of s 37 of the Payroll Tax Act 2007 (PTA). The definition of “employment agency contract” in s 37 of the PTA was to be construed in accordance with the reasoning in UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852, that an employment agency contract was a contract under which “a person procures the services of another person in and for the conduct of the business of the employment agent’s client”. It was held, no departure should be made from the existing caselaw where provisions had been made for employment agents; where there was no significant reason to depart from the orthodox construction and where the changes in the PTA aimed to harmonise payroll tax legislation across jurisdictions.
Catchwords: TAXES AND DUTIES – payroll tax – employment agents – interpretation of s 37(1) of Payroll Tax Act 2007 (NSW) – where Chief Commissioner sought to overturn construction determined by UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852 – construction consistently applied in subsequent cases – numerous subsequent amendments to legislation – some amendments had materially altered the operation of employment agency contract provisions – construction not shown to be unworkable or untenable – legislation harmonised with other jurisdictions – construction in UNSW Global not departed from
Held (dismissing the appeal):
(i) A copy of the Court of Appeal’s case summary is here.
Read the decision on the NSW Caselaw website. | Fasako Pty Ltd v TianyD Beauty and Hairdressing Australia Pty Ltd [2022] NSWCA 112 1 July 2022 – White JA; Basten AJA
In sum: The Court of Appeal dismissed an application for leave to appeal against the decision of the Supreme Court which refused to hear an appeal from the NCAT Appeal Panel. The Court declined leave, in circumstances where Fasako Pty Ltd failed to identify with sufficient precision, any relevant questions of law or how the primary Judge should have decided on the issues differently.
Catchwords: APPEALS – leave to appeal – interlocutory judgment – proposed appeal from refusal of leave to appeal from NCAT Appeal Panel – constrained approach to grant of leave for third level of appeal – primary judge found no error of law more than merely arguable – failure to consider submissions – LEASES AND TENANCIES – enforceability of commercial lease – breach of condition – landlord’s obligation to keep building in sound structural condition – breach – alleged inadequacy of water pump and pipes to provide fire protection
Held (dismissing the appeal):
(i) A copy of the Court of Appeal’s case summary is here.
Read the decision on the NSW Caselaw website. | Morsingh v Health Care Complaints Commission [2022] NSWCA 106 28 June 2022 – White JA, Mitchelmore JA and Basten AJA
In sum: The Court of Appeal dismissed two appeals commenced by Dr Morsingh, challenging the decision of NCAT, which found that Dr Morsingh had engaged in professional misconduct relating to inappropriate conduct during a medical examination. His medical registration was subsequently cancelled. The Court of Appeal held; Dr Morsingh’s challenges to the factual findings had “no substance” and NCAT had made no error in either decision.
Catchwords: APPEAL – disciplinary proceedings – finding of professional misconduct – order of NCAT cancelling registration of medical practitioner – appeal as of right restricted to question of law – challenge to acceptance of complainant’s evidence – challenge to severity of disciplinary order – whether a lesser order would have served the public interest – circumstances warranting a grant of leave – HEALTH – professional registration and discipline – complaints – breach by medical practitioner of patient’s sexual boundaries during consultation – practitioner used consultation to indulge his own social and sexual inclinations – challenge to decision to cancel registration – whether decision unreasonable – whether failure to consider or give sufficient weight to relevant evidence – no question of law identified by applicant – no substance to challenges against factual findings
Held (dismissing the appeal):
(i) Link to the Court of Appeal’s case summary is here.
Read the decision on the NSW Caselaw website. | Health Care Complaints Commission v Robinson [2022] NSWCA 164 26 August – Leeming JA, Kirk JA and Simpson AJA
In sum: The Health Care Complaints Commission appealed NCAT’s decision which found Dr Robinson was guilty of unsatisfactory professional misconduct but not professional misconduct. There was no right of appeal where the finding was neither considered an ancillary nor interlocutory issue for the purpose of cl 29 of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW). Interlocutory decisions are confined to evidentiary or procedural issues which do not finally determine a dispute. However, the Court stipulated that the characterisation of conduct (as either professional misconduct or unsatisfactory professional conduct) fell outside the scope of either an ancillary or interlocutory decision for the purpose of s 4 NCAT Act, and this was considered a “professional decision”. As such, there is an inherent right to appeal both a “Stage 1” and “Stage 2” decision of NCAT, where the legislation did not strictly adopt a two-staged approach. However, the Court held that NCAT constructively failed to exercise its jurisdiction and erred in law, where it equated “inappropriate conduct of a sexual nature” with conduct that is sexually motivated, a determination which failed to address the Commission’s submission that the breast examination was “sexual in nature” and therefore not dependant on the motivation. The Court also held that NCAT should clearly delineate in advance of a hearing, whether the characterisation of conduct as either unsatisfactory professional conduct or professional misconduct will be determined in a single hearing or a two-stage hearing.
Catchwords: OCCUPATIONS – Heath practitioners – Misconduct and discipline – Disciplinary proceedings – ophthalmologist conducted breast and abdominal examination in circumstances where examination not indicated – application by Health Care Complaints Commission to NSW Civil and Administrative Tribunal seeking finding of professional misconduct – Tribunal found only unsatisfactory professional conduct – whether Tribunal erred in equating inappropriate conduct of a sexual nature with conduct that is sexually motivated – two-stage procedure for determination of disciplinary complaints – meaning of “interlocutory decision” in Civil and Administrative Tribunal Act 2013 (NSW)
Held (allowing the appeal):
(i) Link to the Court of Appeal’s case summary is here.
Read the decision on the NSW Caselaw website. | Supreme Court of New South Wales | Office of the Children’s Guardian v EQE [2022] NSWSC 871 5 July 2022 – Davies J
In sum: The Supreme Court ordered that NCAT’s decision to grant the respondent (EQE) a working with children’s check clearance (WWCCC) be set aside. It held that NCAT misapplied the statutory test in s 18(2) of the Child Protection (Working with Children) Act 2012 (CPWWC Act); misconstrued s 30(1A) CPWWC Act and erred by not considering whether EQE posed a real risk to the safety of children, even after his acquittal of child sexual offences. Ultimately, the central consideration of public interest is the need to protect children from sexual and physical harm; the Court said this was not considered by NCAT in its reasons. As the Court only reviewed the process and reasoning of the Tribunal (as opposed to the merits of the case), the matter was remitted back to NCAT to be decided according to law.
Facts: The respondent (EQE) was refused a Working with Children’s Check Clearance (WWCCC) after being charged with four offences concerning the indecent assault and sexual assault of his stepdaughter. He was subsequently found not guilty on all charges. EQE sought a review of the plaintiff’s (Children’s Guardian) decision in NCAT. NCAT set aside the decision of the Children’s Guardian’s and directed that EQE should be issued with a WWCCC within 28 days. The Children’s Guardian commenced the appeal of this decision under cl 17 Sch 3 to the Civil and Administrative Tribunal Act 2013 (NCAT Act), regarding questions of law. Primarily; misapplying or misconstruing in s 18(2) of the Child Protection (Working with Children) Act 2012 (CPWWC Act); failing to consider whether EQE posed a risk to the safety of children should the allegations against him be true and NCAT erred by misapplying or misconstruing s 30(1A)(b), CPWWC Act. Further, it was argued that NCAT erred in its finding in relation to s 30(1A) CPWWC Act, that a reasonable person would allow their child to have direct contact with EQE that was not directly supervised and that finding was “irrational/illogical” and not supported by facts.
Held (allowing the appeal):
(i) In relation to the mandatory considerations in s 30(1) CPWWCC Act, NCAT found on the material before it, that it could not make a positive finding that the conduct relating to any of the four charges had occurred. In weighing the seriousness of the charges against NCAT’s inability to make a positive finding, it determined that EQE was unlikely to demonstrate behaviour of a sexual nature towards minors in future. As such, NCAT found that EQE did not pose a “real and appreciable risk to the safety of children”. However, in granting a WWCCC under s 18(2), precedent establishes that NCAT must refuse to grant a clearance where there is a “possibility that the alleged conduct has occurred” as a risk to the safety of children remains. The appropriate test, therefore, comes to a singular consideration; where NCAT is not positively satisfied that the alleged conduct occurred, but cannot dismiss the allegation as groundless it is “necessary” to assess the person as a posing a risk to the safety of children (at [18], [20], [25], [26]).
(ii) Whilst NCAT correctly satisfied itself that the alleged conduct did not occur to a civil standard, it failed to assess whether there was a possibility the conduct could have occurred. In the present circumstances, NCAT should have also had consideration to the fact there was sufficient evidence to warrant the Director of Public Prosecutions pressing the charges to trial. Ultimately, NCAT made two errors; to conclude from the absence of a positive finding that EQE did not pose a real and appreciable risk to children and; NCAT found on the balance of probabilities that the offences did not occur. Where there was competing evidence and no finding that the allegations were groundless, NCAT failed to assess whether the possibility that the offences occurred could support the view there was a risk to children (at [18], [20], [25], [29], [30], [33], [34], [40]).
(iii) Whilst NCAT’s considerations concerning EQE’s acquittal and there being no evidence of misconduct as a martial arts instructor for over 30 years were relevant considerations, they were not the only relevant matters to consider. It was held that NCAT ought to have considered the possibility that the allegations were true and how that impacted on the risk, pursuant to s 30(1A)(a), CPWWC Act. Even where no positive finding could be made, this would have assisted in reaching a satisfaction that the reasonable person would allow their child to have direct contact with EQE (at [53], [54]).
(iv) Such a consideration was absent from NCAT’s reasons in its determination. It was relevant and important to regard EQE’s desire to continue his employment with the NSW Corrective Services, as a martial arts instructor and educator. However, in considering the public interest, it was held that NCAT failed to consider the “central consideration to public interest.” The Court made reference to established case law and held that the central consideration of public interest is the need to protect children from physical and sexual harm. In light of this omission, it was held that NCAT’s consideration of both s 30(1A)(a) and (b), CPWCCA Act was “inadequate” because the focus on its assessment failed to come to terms with the relevant risk that needed to be made out in s 18, CPWWCC Act (at [59], [60]).
Read the decision on the NSW Caselaw website. | Secretary, NSW Department of Communities and Justice and Anor v ZYM and Anor [2022] NSWSC 935 12 July 2022 – Lindsay J
In sum: The NCAT Appeal Panel dismissed Guardianship proceedings and referred the matter to the Supreme Court under s 25L Guardianship Act 1987, allowing the Supreme Court to exercise its powers to authorise the remuneration of a private financial manager.
Facts: NCAT at first instance, made guardianship and financial management orders in respect of ZYM. ZYM had been under the parental responsibility of the Minister from the age of 2 years old, following a motor vehicle accident which left him severely disabled. The plaintiff (Secretary), as his tutor, was awarded compensation of $12 million from proceedings in the District Court, which could not be bestowed upon ZYM before he reached 18 years of age. At the time of the hearing in NCAT, there was insufficient evidence to warrant the appointment of a private manager and the NSW Trustee was appointed, with the expectation that a suitably qualified private manager could be appointed in future. The Secretary appealed the decision of NCAT at first instance to the Appeal Panel, which then referred the matter to the Supreme Court, to challenge the identity of the appointed financial manager and to seek to appoint a private financial manager. NCAT’s financial management order was subsequently stayed pending the determination of the appeal.
Held (allowing the appeal):
(i) With consent of the parties, the Court made an order dismissing the Appeal Panel proceedings under s 25L Guardianship Act 1987, on the basis that ZYM’s capability to manage his own affairs should be referred to the Court. This order aimed to facilitate “early settlement” of the appointment of the financial manager, to enable ZYM’s care arrangements to be confirmed without further delay. ZYM was subsequently declared to be “incapable” of managing his own financial affairs by reason of his disability, per s 41(1)(a) NSW Trustee and Guardianship Act 2009 (NSW) (at [7], [8], [26]).
(ii) Upon attaining majority, ZYM acquired an entitlement to a substantial sum of money, which could not be finally assessed until firm arrangements for a financial management regime had been resolved. But prior to this, and before NCAT at first instance, ZYM’s only financial asset consisted of his disability pension. Due to the need for ZYM’s care arrangements to be confirmed prior to him turning 18, the Secretary commenced the NCAT application with a sense of urgency and without the necessary evidence to appoint a private financial manager who was an unlicensed Trustee Company. Therefore, the appointment of the NSW Trustee by NCAT was the “correct” decision at the time and the hesitancy to appoint the private manager was appropriate (at [21], [23]).
(iii) At the time of the Supreme Court proceedings, ZYM had attained majority, a financial manager had been appointed, he had received the full entitlement to his compensation and the necessary evidence to appoint the private financial manager was available. With the subsequent evidence concerning the private financial manager, the Court exercised its powers to make decisions concerning the management of ZYM’s estate. The private manager was appointed as the joint financial manager of the protected estate, with remuneration to be paid subject to the NSW Trustee’s authorisation to assume management of ZYM’s financial affairs (powers which NCAT does not possess) (at [25], [26]).
Read the decision on the NSW Caselaw website. | Keevers v Sarraf Property Group Pty Ltd [2022] NSWSC 1017 28 July 2022 – Harrison AsJ
In sum: There was no error in the decision of NCAT to join the defendant company to the Appeal Panel proceedings, where it was not a party at first instance. The joinder of the defendant was to ensure fairness to the party, whose real interests would be affected by the decision and to provide a contradictor. Section 44 Civil and Administrative Tribunal Act 2013 (NCAT Act) confers a wide discretion to join a party to a proceeding and s 80 NCAT Act should not be read down to exclude that specific exercise of powers. The summons was dismissed where none of the other contended grounds of appeal raised any errors of law.
Facts: The plaintiffs (Keevers) commenced proceedings in the Supreme Court, challenging the decision of the Appeal Panel which concerned the payment of special levies under the Strata Schemes Management Act 2015 (SSMA) and the appointment of a compulsory strata manager. Following the Appeal Panel decision, the defendant (Sarraf), as majority lot owner, informed Keevers that the previous strata manager refused to take back management and a new strata manager would be appointed. Later, the strata manager appointed by NCAT handed over the books and records to Sarraf and they had passed a motion appointing its preferred strata manager to run the scheme. On 1 September 2021, a development application was lodged with Randwick Council (on the instructions of Sarraf) for the demolition of the strata building and the construction of nine apartments on the site in its place. On 23 September 2021, an order was made by NCAT which the remitted proceedings be stayed pending finalisation of the appeal to the Supreme Court. Keevers raised four potential errors concerning the interlocutory decision to join Sarraf to the appeal, procedural fairness, potential errors in the factual findings and the issue of costs.
Held (dismissing the appeal):
(i) It was argued that the Appeal Panel erred in law, in ordering that Sarraf be joined to the proceedings, or in the alternative, that no order was made to limit the joinder. These grounds were rejected. Section 44 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) confers a wide discretion on NCAT in determining who should be joined to proceedings. An appeal had been brought by an Owners Corporation, the officers of which had now been displaced by the appointment of a compulsory manager. In reality, those who wished to contest the orders under appeal were not the Owners Corporation nor the defendants to the appeal, but the other party who are called the "majority owner", being Sarraf. In this case, if Sarraf were not joined to the appeal, there would be no contradictor in the proceedings (at [76], [81], [100]).
(ii) Further, a party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings. Sarraf, whose interests would be directly affected was therefore considered a “proper” party for this purpose. The real issues could only be determined where the interests of both the minority (Keevers) and majority lot owner (Sarraf) were properly heard. It was therefore considered that s 80 of the NCAT Act, which deals with the making of appeals, should not be read to exclude the exercise of the specific powers set out in s 44(2) of the NCAT Act, one of which is to join parties. All grounds 1, 1A and 1B failed (at [154], [155], [156], [157], [161], [165])
(iii) Keevers argued the Appeal Panel’s findings were affected by procedural fairness where the “seriously adverse” findings were neither sought nor advanced. However, on appeal to the Court, no error of law was found in the reasons for the decision. The conclusions of the Appeal Panel found that an expert report assessing the Special Levy was inflated (exceeding $1 million) and was infected by the unprofessionalism and untruthfulness of the expert witness. The contrasting evidence tendered estimated the cost to be about $77,650. The conclusions were also suggestive of impropriety by John Sarraf (as company nominee for Sarraf) in seeking to take advantage of his friendship with the expert witness to obtain an untruthful report, which was ultimately found to be unreliable. Where the expert witness had specific allegations put to him in cross-examination and the Appeal Panel was entitled to consider factual matters there was no injustice or errors concerning procedural fairness in the decision of the Appeal Panel. This ground was rejected (at [166], [169], [178], [179], [180]).
(iv) The plaintiffs argued that it was not open to the Appeal Panel to make certain factual findings, citing issues with the reliance placed on particular evidence. It was argued there was no probative evidence to support the conclusion that the expert report was inflated, nor was there evidence to support the conclusion that the building work subject of the special levy went beyond what was required by s 106 SSMA. The ground was rejected, where it was open to the Appeal Panel to make findings of fact on the material that was before NCAT on first instance. Leave to appeal on this ground was refused (at [181], [203], [204], [206]).
(v) It was also argued that some of the findings of the Appeal Panel were “infected” with factual error. This ground was rejected by the Court as the issues had been previously ventilated before NCAT and the Appeal Panel. Where the plaintiffs merely disagreed with the Appeal Panel’s finding, this did not give rise to an error of law. Where the Appeal Panel disagreed with some factual findings made by the Tribunal member at first instance, it provided reasons as to why. Even if the Appeal Panel were wrong, incorrect factual findings did not give rise to a right to appeal as it does not concern a question of law (at [207], [236], [237]).
(vi) Leave to appeal was refused. None of the appeal grounds identified errors of law or raised an injustice in the sense of going beyond what is reasonably arguable that the Appeal Panel was in error. No questions of principle or questions of public importance were raised. In such circumstances, the summons was dismissed and costs were to follow the event (at [253], [254]).
Read the decision on the NSW Caselaw website. | Coster v Compass Housing Services Co Ltd t/as Home in Place [2022] NSWSC 1067 8 August 2022 – Dhanji J
In sum: The Appeal Panel failed to consider whether the plaintiff’s breach was insufficient to warrant the termination of her social housing tenancy per s 87 Residential Tenancies Act 2010. In failing to have regard to a relevant consideration, the Appeal Panel fell into legal error and the matter was remitted back to a differently constituted Panel to be determined according to law.
Facts: The plaintiff (Ms Coster) was a social housing resident, whose tenancy agreement was with the defendant (Compass). Ms Coster was issued with a termination notice in October 2021 for multiple breaches of the requirement to self-isolate after contracting COVID-19. Compass sought an order for terminating the social housing agreement in NCAT. Ms Coster, who was not legally represented, did not appear in NCAT. Compass informed NCAT, that on the previous day, Ms Coster’s close friend died by suicide in her residence and an adjournment was given. Ms Coster made no appearance at the adjourned hearing, where she had been taken into custody and was unable to contact NCAT. In her absence, NCAT proceeded to final hearing. After taking evidence from Compass, a termination order was made. Following her release from custody and with the assistance of Legal Aid, Ms Coster was able to obtain some necessary documents from Compass to commence an appeal in the Appeal Panel (with significant delay). Ms Coster sought leave to appeal NCAT’s orders and to stay the termination of the agreement. On 8 June 2022, the Appeal Panel heard the matter and in ex tempore reasons, refused to grant to the plaintiff an extension of time in which to appeal and the appeal was consequently dismissed. Ms Coster sought leave in the Supreme Court to appeal against the decision of the NCAT Appeal Panel and sought a stay in relation to the eviction order. Both parties consented to orders which, in essence, agreed to the primary relief sought by Ms Coster in her summons.
Held (allowing the appeal):
(i) Despite the parties filing consent orders with the Court, the parties were advised that a hearing was necessary. This was because of the nature of the relief, which was sought, being the quashing of the decision through certiorari, required the matter to be heard. Granting consent orders in chambers would be inappropriate, where it is necessary for the Court to consider and be satisfied for itself, the merits of the appeal. However, given the position of the parties, the Court was not required to consider all the grounds of appeal. Where any one of the grounds proffered were established, it would warrant the making of the orders agreed to by the parties (at [3], [12]).
(ii) The Court found that the Appeal Panel had erred in failing to consider the plaintiff’s argument, that the breach of her COVID-19 self-isolation restrictions was insufficient to justify the termination of the residential tenancy agreement. Reliance was had on s 87 Residential Tenancies Act 2010, where NCAT can only terminate a lease if the breach is “sufficient” to justify termination of the lease. Given the factual circumstances, it was inferred by the Court that the Appeal Panel failed to have regard to a relevant matter. In failing to address the particular arguments of the plaintiff concerning s 87, it was regarded as a failure to give adequate reasons for the decision. This was established an error of law. The matter was remitted back to the Appeal Panel to be determined according to law (at [14], [17]).
Read the decision on the NSW Caselaw website. | Norkin v University of New England [2022] NSWSC 819 24 June 2022 – Davies J
In sum: The Appeal Panel’s mischaracterisation of an error of law as an error of fact did not give rise to a right of appeal where the substance of the legal issue was not in dispute. The collection of private information was correctly determined to directly relate to an activity of the University, for the purpose of s 8 Privacy and Personal Information Protection Act 1998 (NSW). Granting leave to appeal on this basis was futile, especially where the plaintiff suffered no detriment.
Facts: The plaintiff (Mr Norkin) was in the process of sponsoring his brother (the applicant) for a student visa under the Simplified Student Visa Framework, to undertake postgraduate studies at the University of New England (UNE). As part of this process, UNE had to be satisfied that the applicant met the relevant criteria and were authorised to make enquiries concerning the applicant. This included enquiries of a personal nature with respect to the applicant, Mr Norkin and his extended family, including Mr Nokrin’s annual income, tax returns, name, age, marital status and any former spouses. Mr Norkin contended the information collected extended beyond what UNE was lawfully entitled to, and intruded on, to an unreasonable extent, on their personal affairs. He sought an internal review under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). The University found that it had complied with the principles concerning collection in the PPIP Act. This decision was upheld upon external review to NCAT. Mr Norkin the appealed to the Appeal Panel of NCAT, which refused leave. It found that whilst NCAT at first instance made a factual error, all of the actions were permissible under the PPIP Act. Mr Norkin sought leave to appeal the decision to the Supreme Court.
Held (dismissing the appeal):
(i) Mr Norkin contended that the Appeal Panel erred by classifying the Tribunal’s error of law as an error of fact. The Court found that whilst there is no error of law in making a wrong factual finding, a determination of a question of fact may give rise to a question of law where the issue of fact fell within a relevant statutory provision. The question of whether the University lawfully collected personal information (for the purpose of s 8 of the PPIP Act) because it fell within the objects and functions of the university (per s 6 of the UNE Act) was a question of law. Consequently, the plaintiff did not need leave to appeal (at [32], [33]).
(ii) Although the Appeal Panel had made an error of fact, there was no error of law in simply making a wrong factual finding. Critically, it was not in dispute that one of the University’s activities was conducting pre-visa assessments. Therefore, the substance of the ground was correctly determined by the Appeal Panel, which found the data collection was “directly related to [an] activity” of the University under the PPIP Act. Granting the plaintiff leave to appeal on the basis was futile (at [34]).
(iii) Mr Norkin also contended that he was denied the opportunity to make submissions on the “activity” of the University, a question of law. The Court determined that Mr Norkin had not been denied procedural fairness because the underlying factual matters to the conclusion were not in dispute. The Appeal Panel was entitled to reach its view on the material before it and if it was wrong in its conclusion, the present appeal gave Mr Norkin the opportunity to make submissions, which he failed to do (at [39], [40]).
(iv) It was also argued that the Appeal Panel had been illogical in its decision, in merging the separate concepts of “purpose” and “activity” in s 8 PPIP Act. Even if the Appeal Panel had erred in its approach to substituting a view that the collection was related to an activity rather than a purpose, the error is not such that leave should be granted for an appeal. Where it was not disputed that the collection related to an activity of the University, he failed to demonstrate an error of law. Further, Mr Norkin suffered no detriment as a result of the Appeal Panel’s decision and there was no utility in an appeal (at [42], [43], [44], [45], [46], [86], [91]).
Read the decision on the NSW Caselaw website. | Zioukin v Lang [2022] NSWSC 823 21 June 2022 – Basten AJ
In sum: A plaintiff’s informal application to vacate the hearing date, and the amended summons seeking to appeal a decision from NCAT, were both dismissed. It was held that the plaintiff’s case was not more than “reasonably arguable” in circumstances where the plaintiff’s challenge to a termination notice issued under s 85 of the Residential Tenancies Act 2010 (NSW) did not “warrant a grant of leave to appeal” as the plaintiff could not establish what relief would be available to him if the matter were to be remitted to the Appeal Panel of NCAT.
Catchwords: APPEALS – leave to appeal – appeal from Appeal Panel of NCAT – appeal on question of law – grounds – ground to be more than merely arguable – whether reasons adequate – whether plaintiff denied procedural fairness – CIVIL PROCEDURE – application by plaintiff to vacate hearing – late medical certificate – chronic illness – pro forma certificate – nature and history of proceedings – cost and inconvenience to respondent – whether proceedings futile – LEASES AND TENANCIES – residential tenancy agreement – holding over period – notice of termination without reasons – whether retaliatory notice – tenant evicted whether relief available in NCAT
Held (dismissing the appeal)
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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