NCAT Appeal Panel Decisions Digest Issue 12 of 2023 |
The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
This issue features summaries of the following Appeal Panel decisions handed down in December 2023:
Australian Postal Corporation v Lux Cuttings Pty Ltd [2023] NSWCATAP 316: An Appeal Panel quashed a first instance decision and dismissed an appeal on the basis that the Tribunal lacked jurisdiction. The Appeal Panel found that Australia Post is ‘the Commonwealth’ for the purposes of s 75(iii) of the Constitution. The Tribunal possesses the authority to make this determination but is limited to findings solely pertaining to the issue of jurisdiction.
YFB v YFC [2023] NSWCATAP 337: An Appeal Panel allowed an appeal from a Tribunal decision which had failed to offer a self-represented appellant an adjournment in relation to his application for guardianship of his father. The Tribunal adjourned a hearing relating to the enduring power of attorney appointment on the basis that the solicitor, who witnessed the execution of both enduring guardianship and enduring power of attorney, could not be contacted to give evidence regarding the father’s capacity. The Appeal Panel held that the Tribunal erred in failing to offer the appellant an adjournment in relation to enduring guardianship on the same evidentiary basis the enduring power of attorney hearing had been adjourned.
The Owners – Strata Plan No 21563 v Rutherford [2023] NSWCATAP 326: An Appeal Panel allowed an appeal and varied an order relating to costs. The Appeal Panel held that the Tribunal erred with respect to a question of law in awarding, as compensation for breach of duty to maintain and repair common property, compensation for legal costs associated with mediation in a strata dispute. Under reg 60 of the Strata Schemes Management Regulation 2016 (NSW), parties to a mediation are to pay their own costs associated with mediation. The Appeal Panel held that costs associated with mediation under the Strata Schemes Management Act 2015 (NSW) cannot be the subject of an award of damages for breach; nor are such costs recoverable as costs of, or incidental to, the proceedings.
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. Does the Tribunal possess the authority to decide whether a party is ‘the Commonwealth’ for the purpose of s 75(iii) of the Federal Constitution?
Australian Postal Corporation v Lux Cuttings Pty Ltd [2023] NSWCATAP 316 Consumer and Commercial Division - General A Suthers, Principal Member; D Goldstein, Senior Member
In sum: The Tribunal has no jurisdiction to exercise judicial power over matters within federal jurisdiction. However, it does possess incidental (or anterior) jurisdiction to decide whether matters brought before it are within jurisdiction. The Tribunal can give effect to the decisions it makes in that regard, so long as this decision is limited to the issue of jurisdiction.
Facts: The appellant (Australia Post) entered into annual contracts with the respondent (Lux) to deliver parcels to Lux’s customers. On two occasions, deliveries were deemed to be lost in transit. The Tribunal ordered Australia Post to pay Lux $72.97 being the value of the goods lost and services not provided. The Appeal Panel considered whether the Tribunal acted beyond jurisdiction in making this order because Australia Post is ‘the Commonwealth’ for the purposes of the Commonwealth Constitution, and only courts invested with federal jurisdiction can determine matters where the Commonwealth is a party.
Additionally, during deliberations, a question arose as to whether the mere raising of the question by Australia Post as to whether it is ‘the Commonwealth’ is sufficient to deny the Tribunal jurisdiction in the matter. It is well established that where the Tribunal is exercising judicial power, and a party raises a defence which relies on a Commonwealth law or the Constitution, constituting the circumstances under s 76 of the Constitution, the Tribunal is then deprived of jurisdiction. Lux submitted that Australia Post had failed to raise a sufficient defence.
Held (the decision at first instance is quashed; otherwise dismissing the appeal): (i) The Appeal Panel found that Australia Post is ‘the Commonwealth’ in this circumstance and cannot be sued in NCAT. The Appeal Panel noted that s 75(iii) should be given “a wide construction and effect” in considering whether the Commonwealth “is suing or being sued” (Maguire v Simpson (1977) 139 CLR 362; [1977] HCA 63 at [9]). In reaching this conclusion, the Tribunal had regard to both the Australian Postal Corporation Act 1989 (Cth) (APC Act), being the statute which established Australia Post, and also to the criteria set out by McHugh J in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 at [127] which ultimately found that ASIC was ‘the Commonwealth’ for the relevant purpose. For example, criteria put forth by McHugh J included where “the Commonwealth has incorporated a body with no corporators” (at [127]), and the APC Act states that Australia Post is a body corporate established by a Commonwealth law (ss 12 and 13 of the APC Act), but which has no corporators. In addition, it is bound by “community service obligations” under s 27 of the APC Act and “general government obligations” under s 28 of the APC Act (at [41]-[42], [47]-[52]).
(ii) The Appeal Panel agreed with Lux that raising the issue of jurisdiction is not a defence. The Appeal Panel held that raising jurisdiction is not “the answer made to a claim … that [Australia Post] is free from the obligation asserted against [it] and that this freedom is conferred by an Act of the Parliament” (see, Walsh J in Felton v Mulligan (1971) 124 CLR 367; [1971] HCA 39 at [408]-[409]). It follows that were the Tribunal wrong on the preliminary point of whether Australia Post is ‘the Commonwealth’, nonetheless a genuinely raised defence which suggests a right or immunity arises under Commonwealth law would not exist (at [34], [36]).
(iii) The Appeal Panel held that, by way of its anterior jurisdiction, it can determine the limits of its authority and can make orders to give effect to the decision it makes in that regard, so long as it does so solely in relation to the issue of jurisdiction. This constitutes the further exercise of judicial power conferred by the State of NSW (at [60]). This means that the Tribunal is empowered to quash the order made at first instance. |
2. In what circumstances will failing to offer appellants in Guardianship Division proceedings an adjournment amount to a failure to afford procedural fairness?
YFB v YFC [2023] NSWCATAP 337 Guardianship Division C P Fougere, Principal Member; J D’Arcy, Senior Member; C Kennedy, General Member
In sum: Providing a party with a reasonable opportunity to be heard under s 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), and therefore ensuring procedural fairness is afforded to the parties, can include offering a self-represented party an adjournment, even if not requested by the party. It may also involve reviewing the material provided and examining whether it is possible to discern grounds which may raise a question of law or form the basis for leave to appeal.
Facts: The self-represented appellant (YFB) lodged an application for guardianship, a review of the existing enduring power of attorney, and additionally applied for a financial management order, in respect of his father (YFC). The Tribunal dismissed the application for guardianship at first instance leaving unaffected an enduring guardianship appointment made by YFC appointing his daughter (YFS) as enduring guardian. However, the Tribunal adjourned the hearing relating to the enduring power of attorney and financial management order on the basis that the solicitor, who witnessed the execution of both enduring guardianship and enduring power of attorney, could not be contacted to give evidence deemed important in the consideration of YFC’s capacity at the time of the enduring appointments. The Appeal Panel considered whether the Tribunal denied YFB procedural fairness by failing to propose an adjournment of the hearing of the guardianship application so that the solicitor could be available to give evidence.
Held (allowing the appeal): (i) The Tribunal must ensure parties “have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings” as required by s 38(5)(c) of the NCAT Act. Relying on the authority of Basten J in Italiano v Carbone [2005] NSWCA 177 at [105]-[107], the Appeal Panel noted that providing a party with a reasonable opportunity to be heard can include offering a self-represented party an adjournment, even if not requested by the party (at [43]-[44]).
(ii) The Appeal Panel was not satisfied that a hearing of the guardianship application should have proceeded where a direct challenge was being made to YFC’s capacity to make a different enduring appointment made on the same date. The Appeal Panel held that the decision to dismiss the application for a guardianship order be set aside, and the application for the appointment of a guardianship order be remitted to the Tribunal for reconsideration (at [45]-[54]). |
3. Does Strata Schemes Management Regulation 2016 (NSW) reg 60 (reg 60) prevent the award of damages for breach of s 106 of the Strata Schemes Management Act 2015 (NSW) (SSMA) by an owners corporation, in respect of costs associated with mediation?
The Owners – Strata Plan No 21563 v Rutherford [2023] NSWCATAP 326 Consumer and Commercial Division - Strata Scheme D Robertson, Senior Member; G Sarginson, Senior Member
In sum: Costs associated with a mediation under the SSMA will ordinarily be characterised as a cost of or incidental to Tribunal proceedings, and such costs should not be characterised as an element of damages for breach of duty under s 106 of the SSMA. Reg 60 then places a further restriction on the Tribunal and any court’s power to make an order for costs associated with the mediation.
Facts: A dispute arose between the appellant (the owners corporation) and the respondent (Rutherford) regarding breach of the owners corporation’s duty to maintain and repair property under s 106 of the SSMA. To resolve the dispute, the parties entered into pre-litigation mediation conducted by NSW Fair Trading, prior to Tribunal litigation. The Tribunal ultimately awarded Rutherford damages in the amount of $10,169.29, which included legal costs under ss 106(5) and 232 of the SSMA. The owners corporation appealed this order asserting that the legal costs claimed were associated with the mediation thereby contravening reg 60 of the Strata Schemes Management Regulation 2016 (NSW) which dictates parties must “pay their own costs associated with the mediation”.
Held (allowing the appeal): (i) The general principle applied in courts is that costs of and incidental to proceedings cannot be recovered as damages (at [52]). The Appeal Panel pointed to the Full Federal Court in Gray v Sirtex Medical Limited (2011) 193 FCR 1; [2011] FCAFC 40 at [15]-[18] which emphasised the distinction long held between damages and legal costs, the amount being assessed differently, and the latter being entirely dependent upon the exercise of a judicial discretion (at [59]). This distinction has even greater significance in the Tribunal where the award of costs is governed by s 60 of the NCAT Act having the effect of the Tribunal only being permitted to award costs where it is satisfied that ‘special circumstances’ exist (at [66]).
(ii) In noting this critical distinction, and relying upon the authority of the High Court in Anderson v Bowles (1951) 84 CLR 310; [1951] HCA 61, the Appeal Panel held that costs of, and incidental to, proceedings should not be characterised as an element of damages for breach of duty under s 106 of the SSMA. The assessment of this distinction as to whether expenses are costs or and incidental to Tribunal proceedings, or are not, will depend upon the facts and circumstances of the dispute (at [97]). The Appeal Panel held that the costs associated with a mediation under the SSMA will ordinarily be a cost of or incidental to Tribunal proceedings (at [98]).
(iii) Reg 60 then places a further restriction on the Tribunal’s powers denying the Tribunal the opportunity to make an order regarding the costs of a mediation (at [102], [110]). As expressly stated under reg 60, parties to a mediation are to pay their own costs associated with mediation (at [111]). The effect of reg 60 understood alongside the authority of the Anderson v Bowles decision is such that costs associated with mediation under the SSMA cannot be the subject of an award of damages under s 106(5); nor are such costs recoverable as costs of, or incidental to, the proceedings.
(iv) The Appeal Panel held that the Tribunal erred when awarding Rutherford the legal costs associated with the mediation. The Appeal Panel ordered that the sum of $10,169.29 be substituted with $7,019.64 having consideration for the costs relating to mediation. |
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Australian Postal Corporation v Lux Cuttings Pty Ltd [2023] NSWCATAP 316 Consumer and Commercial Division - General Decision of: A Suthers, Principal Member; D Goldstein, Senior Member Catchwords: APPEALS – jurisdiction of Tribunal to determine matter in exercise of judicial power where the Australian Postal Corporation is a party – authority to decide whether Australian Postal Corporation is ‘the Commonwealth’ for the purpose of s 75(iii) of the Constitution – whether the mere raising of that contention on a genuine basis deprives the Tribunal of jurisdiction – jurisdiction of Tribunal’s Appeal Panel to make orders affecting decision at first instance in absence of ability to adjudicate on matters in federal jurisdiction |
Punjabi Fusion Group Pty Ltd v Romanos [2023] NSWCATAP 317 Consumer and Commercial Division - Commercial Decision of: S Westgarth, Deputy President; Balla ADCJ, Principal Member Catchwords: APPEAL- whether substantive appeal and a costs appeal should be adjourned because of concurrent Supreme Court proceedings- whether the risk of inconsistencies between the findings of the appeal panel and the findings of the Supreme Court should be avoided by adjourning the appeals. |
Katsonis v Al Moussawi [2023] NSWCATAP 318 Consumer and Commercial Division - Residential Tenancy Decision of: G Ellis SC, Senior Member; J McAteer, Senior Member Catchwords: APPEAL – No question of principle |
Shamoun v Dbouk [2023] NSWCATAP 319 Consumer and Commercial Division - Residential Tenancy Decision of: G Ellis SC, Senior Member; J McAteer, Senior Member Catchwords: APPEAL – No question of principle |
Commissioner for Fair Trading v Hall [2023] NSWCATAP 320 Occupational Division Decision of: S Westgarth, Deputy President; A Suthers, Principal Member Catchwords: APPEAL - Administrative Law - application for a contractor licence under the Home Building Act -whether the applicant had attained experience as an employee or as a subcontractor - factors to be considered when determining whether an employer/employee relationship existed -consideration of the purpose of the requirement for experience to be attained as an employee. |
Lockard v Reeves [2023] NSWCATAP 321 Consumer and Commercial Division - General Decision of: S Thode Principal Member; D Goldstein Senior Member Catchwords: APPEAL – Error of law – Leave to appeal – New evidence not reasonably available – New evidence obtained after the date of the decision. |
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Mohamud v Raad [2023] NSWCATAP 324 Consumer and Commercial Division - Residential Tenancy Decision of: R C Titterton OAM, Senior Member; D Goldstein, Senior Member Catchwords: APPEALS – denial of procedural fairness – leave to appeal – extension of time to file notice of appeal – no question of principle |
Jeray v Blue Mountains City Council [2023] NSWCATAP 325 Administrative and Equal Opportunity Division Decision of: Hennessy ADCJ, Deputy President; Dr R Dubler SC, Senior Member Catchwords: CIVIL PROCEDURE – whether Tribunal has jurisdiction to hear an appeal from a statement of the Tribunal that “The Information Commissioner appears and has a right to be heard in these proceedings but is hot a party” – whether such a statement is an internally appealable decision – whether leave should be given to appeal from interlocutory decisions by way of procedural directions - whether certain questions of law should be referred to the Supreme Court – whether the Appeal Panel members should recuse themselves |
The Owners – Strata Plan No 21563 v Rutherford [2023] NSWCATAP 326 Consumer and Commercial Division - Strata Scheme Decision of: D Robertson, Senior Member; G Sarginson, Senior Member Catchwords: LAND LAW – Strata title – Duty to maintain and repair common property – Liability of owners corporation for foreseeable losses sustained by reason of a failure to maintain and repair common property - Strata Schemes Management Regulation 2016 clause 60 – Parties to pay their own costs associated with a mediation – Whether damages for failure to repair and maintain common property may include legal costs associated with a mediation seeking to resolve a dispute concerning the maintenance of common property |
Tao v The Owners - Strata Plan No 16107 [2023] NSWCATAP 327 Consumer and Commercial Division - Strata Scheme Decision of: S Westgarth, Deputy President; G Burton SC, Senior Member Catchwords: APPEAL- damage to lot property in a strata scheme-whether leave to appeal should be granted having regard to evidence-whether evidence was misinterpreted-whether decision resulted in a clear injustice-whether owners corporation liable to perform a work order- consideration of sections 106, 122 and 232 of the Strata Schemes Management Act |
Taylor v Lay [2023] NSWCATAP 328 Consumer and Commercial Division - General Decision of: S Westgarth, Deputy President; M Gracie, Senior Member Catchwords: APPEAL – NCAT - Australian Consumer Law – British Bulldog puppy diagnosed with a serious congenital health condition shortly after being purchased - whether representations as to the health of the puppy were misleading or deceptive in breach of s 18 of the ACL – finding by Tribunal of a breach of ACL consumer guarantee that goods will be of acceptable quality – questions of law raised by Notice of Appeal when properly construed - principles for assessing proper measure of damages for breach of statutory guarantee provision of ACL– varying amount of damages ordered by Tribunal – claim for appellant’s costs of appeal |
Manca v Tullipan Homes Pty Ltd [2023] NSWCATAP 329 Consumer and Commercial Division - Home Building Decision of: Balla ADCJ, Principal Member; G Sarginson, Senior Member Catchwords: APPEAL – error on a question of law - leave to appeal - appeal from an interlocutory decision – appeal from an ancillary decision |
EJX v The University of Newcastle [2023] NSWCATAP 330 Administrative and Equal Opportunity Division Decision of: Balla ADCJ, Principal Member; Dr R Dubler SC, Senior Member Catchwords: PRIVACY AND PERSONAL INFORMATION – whether use for purpose collected - whether contravention of information privacy principles |
Wang v Chief Commissioner of State Revenue [2023] NSWCATAP 331 Administrative and Equal Opportunity Division Decision of: S Higgins, Senior Member; Dr J Lucy, Senior Member Catchwords: ADMINISTRATIVE LAW – internal appeal – application for an extension of time to lodge the appeal – whether the appeal lacks merit TAXES AND DUTIES – Land tax – Surcharge land tax – principal place of residence exemption |
YDW v YDZ [2023] NSWCATAP 332 Guardianship Division Decision of: I R Coleman SC ADCJ, Principal Member; L Organ, Legal Member; M Spencer, General Member Catchwords: APPEAL- whether leave to appeal interlocutory procedural orders should be granted |
Sun v Zhang [2023] NSWCATAP 333 Consumer and Commercial Division - Residential Tenancy Decision of: D Robertson, Senior Member; D Goldstein, Senior Member Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent — Rent increases – In the absence of a notice served in compliance with the requirements of the Act, the entry into a renewed fixed term tenancy agreement does not increase the rent payable notwithstanding that the renewed agreement states a higher rent |
Solar Naturally Pty Ltd v Tait [2023] NSWCATAP 334 Consumer and Commercial Division - Home Building Decision of: S Thode, Principal Member; Dr J Lucy, Senior Member Catchwords: APPEALS – denial of procedural fairness – consent orders - no question of principle |
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YFT v YFV [2023] NSWCATAP 336 Guardianship Division Decision of: C Fougere, Principal Member; J Kearney, Senior Member; C Kennedy, Senior Member Catchwords: APPEAL – whether wrong findings made – whether no evidence for findings that NSW Trustee and Guardian investigating alleged financial abuse by sons of Subject P – whether Tribunal member biased - no question of law – leave to appeal refused – no question of principle |
YFB v YFC [2023] NSWCATAP 337 Guardianship Division Decision of: C P Fougere, Principal Member; J D’Arcy, Senior Member; C Kennedy, General Member Catchwords: APPEAL – Guardianship Division – whether breach of procedural fairness – whether appellant should have been offered adjournment – adjournment of other proceedings so that witness available to give evidence – appeal allowed. |
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YFP v Public Guardian [2023] NSWCATAP 339 Guardianship Division Decision of: A Britton, Deputy President; J T Kearney, Senior Member; C M Kennedy, Senior Member Catchwords: GUARDIANSHIP — whether the Tribunal misapplied ss 15(3), 17(1) of the Guardianship Act 1987 (NSW) — whether proposed guardian “able to exercise the functions conferred or imposed by the proposed guardianship order” PROCEDURAL FAIRNESS — whether Tribunal complied with obligation “to take such measures as are reasonably practicable to ensure each party had a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings” NCAT Act, s 38(5)(c) Civil and Administrative Tribunal Act 2013 (NSW) PROCEDURAL FAIRNESS — “practical injustice” — whether Tribunal’s alleged to afford the appellant a reasonable opportunity to be heard deprived deprive the appellant of the possibility of a successful outcome EVIDENCE — “no evidence ” — whether finding was made without evidence LEAVE TO APPEAL — principles governing granting leave to appeal from decision made by Civil and Administrative Tribunal |
YDC v YDD [2023] NSWCATAP 340 Guardianship Division Decision of: C Fougere, Principal Member; R Booby, Senior Member; L Porter, General Member Catchwords: APPEAL – Guardianship Division – whether Tribunal failed to apply legal precedents – whether breach of procedural fairness – whether appellant should have been offered adjournment – whether appellant was carer of subject person – whether failure to consider mandatory considerations - appeal dismissed |
Middleton v Wrona (No.3) [2023] NSWCATAP 341 Consumer and Commercial Division - Home Building Decision of: M Harrowell, Deputy President; D Robertson, Senior Member Catchwords: PRACTICE AND PROCEDURE – s 63 of the Civil and Administrative Tribunal Act 2013 (NSW)- Power to correct errors in decisions of the Tribunal – no error disclosed |
Redmyre Group Pty Ltd v Stockman (No 2) [2023] NSWCATAP 342 Consumer and Commercial Division - Home Building Decision of: G Blake AM SC, Senior Member; D Fairlie, Senior Member Catchwords: COSTS — Party/Party — Appeals – amount in dispute exceeds $30,000 - general rule that costs follow the event – costs awarded against unsuccessful appellant |
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DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Appeal Panel Decisions Digest should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication. |
