| | | | | NCAT Appeal Panel Decisions Digest Issue 9 of 2020
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| 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 October 2020: - Zhu v Aspinall [2020] NSWCATAP 226 – in which the Appeal Panel allowed an appeal from a decision in the Consumer and Commercial Division, largely on the basis that the Tribunal below had erred in finding that the appellant was not an “impacted tenant” as defined in s 228A of the Residential Tenancies Act 2010 (NSW).
- Hassani v Afzal [2020] NSWCATAP 219 – in which the Appeal Panel allowed an appeal from the Consumer and Commercial Division on the basis that the Tribunal below erred in denying the appellants procedural fairness, and in its application of ss 228A and 228B of the Residential Tenancies Act 2010 (NSW), relating to whether or not the appellants were tenants impacted by the COVID-19.
- Rice v JR & SD Farmer t/a Urban Bespoke Homes [2020] NSWCATAP 208 – in which the Appeal Panel allowed an appeal from a decision of the Consumer and Commercial Division relating to a home building dispute, on the basis that the Tribunal below made multiple errors. Of particular importance in relation to these issues was the application of the recent decisions in Mann v Paterson Constructions Pty Ltd [2019] HCA 32 (which related to Victorian home building legislation) and Paraiso v CBS Build Pty Ltd [2020] NSWSC 190 (which applied the Mann principles in a NSW context).
- Vitality Works Australia Pty Limited v Yelda; Sydney Water Corporation v Yelda [2020] NSWCATAP 210 – in which the Appeal Panel dismissed an appeal from a decision in the Administrative and Equal Opportunity Division, holding that the Tribunal did not apply the wrong test, take into account irrelevant factors, reach unreasonable conclusions or give inadequate reasons in finding that the appellants had contravened provisions of the Anti-Discrimination Act 1977 (NSW). In doing so, the Appeal Panel gave commentary on the correct analysis to apply under ss 22A and 22B of the Act, relating to sexual harassment of employees – in particular, the tests to apply in determining whether conduct is of a “sexual nature” and “unwelcome”.
- Gaynor v Burns [2020] NSWCATAP 203 – in which the Appeal Panel refused leave to extend time for filing an appeal against a decision made by the Tribunal in 2018, which “declined to determine” numerous applications in respect of complaints under the Anti-Discrimination Act 1977 (NSW). Although the appellant should have been given notice of the decision below, and part of the decision related to proceedings which were then the subject of a stay order, the Appeal Panel did not think that these (potential) procedural errors worked any practical injustice on the appellant, such that the exclusion of time to appeal should be granted.
Each case title is hyperlinked to the full decision available on NSW Caselaw.
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| Consumer and Commercial Division - Tenancy
M Harrowell, Deputy President; J Kearney, Senior Member
In sum: The Appeal Panel allowed an appeal from a decision in the Consumer and Commercial Division, largely on the basis that the Tribunal below had erred in finding that the appellant was not an “impacted tenant” as defined in s 228A of the Residential Tenancies Act 2010 (NSW) (the RT Act).
Facts: The appellant (tenant) and the respondent (landlord) were parties to a residential tenancy agreement in respect of premises in Kirribilli ([1]).
In March 2020, the tenant stopped paying rent because she said she was impacted by the COVID-19 pandemic. Until this time, she could afford the rent in part because she was receiving payments from a sub-tenant, Ms Zenkis. Ms Zenkis ceased contributing to rent in March 2020 for reasons set out in an email to the tenant, including that she had asked her manager if she could work remotely, had been refused this request and advised that her employment might not continue beyond the next month, had resigned from her job, and decided to return to Melbourne to be with her family ([3], [50]).
In April 2020, the landlord issued the tenant a notice of termination for non-payment of rent, and applied to NCAT seeking orders for termination and possession ([4]). The landlord conceded that the termination notice was issued within 60 days of the commencement of Part 6A of the RT Reg, and that she had not participated in a rent negotiation process ([51]).
The tenant contended that she was a COVID-19 impacted tenant within the meaning of the RT Act, and that by reason of reg 41C of the RT Regulation, the landlord was not permitted to issue the termination notice or apply for a termination order ([5]).
The Tribunal rejected the tenant’s claim that she was a COVID-19 impacted tenant, and found there were rent arrears in excess of $15,000 (the jurisdictional limit of a money order in these circumstances). It proceeded to make termination and possession orders, an order that the tenant pay the landlord $15,000, and an order stipulating a daily occupation fee until possession was given ([6]-[7]).
The tenant appealed on the basis that the Tribunal erred in finding that she was not an impacted tenant, and erred in its calculation of outstanding rent ([9])
Held (granting leave to appeal and allowing the appeal in part, varying the money order, and setting aside the termination, possession and occupation fee orders):
Whether the Tribunal erred in its calculation of rental arrears – YES
(i) The landlord accepted that the Tribunal had erred in respect of the order for payment of rental arrears, and the parties consented to an amended sum of $13,242.72 ([13], [19], [34]-[35]).
(ii) However, the tenant maintained that the residential tenancy legislation concerning the COVID-19 pandemic permitted the Tribunal (and Appeal Panel) to make an order reducing the rent ([20]).
(iii) In the Appeal Panel’s view, there is no such power. Reg 41C(4) of the RT Regulation only operates for the purpose of “dealing with an application by a landlord or an impacted tenant relating to a termination notice or a termination order”. It has no relevance in determining the amount of rent payable under a residential tenancy agreement, nor does it confer power on the Tribunal (or the Appeal Panel) to reduce the rent payable ([38]).
(iv) Nor did the Tribunal have power to reduce the rent under s 44 of the RT Act, which applies where “there is a reduction or withdrawal of goods, services or facilities provided with residential premises” ([39]-[40]).
(v) Accordingly, the Appeal Panel varied the money order below from $15,000 to $13,242.72, but did not make any further orders in respect of the requested rent reduction ([42]).
Whether the Tribunal erred in making the termination order, on the basis that the tenant was not a COVID-19 impacted tenant – YES
(vi) The Tribunal erred in finding that the tenant was not an impacted tenant, and leave was granted to appeal in respect of this ground ([52]).
(vii) The savings of a person are not relevant to determining their household income, and it was an error for the Tribunal to consider this matter (e.g. stating that “there was no evidence to show that [the tenant’s] savings were impacted by Covid or that there was a loss of savings that led to a loss of 25% of household income”) ([44], [53]).
(viii) The fact that Ms Zenkis was not a co-tenant under the residential tenancy agreement did not prevent her from being a “rent paying member” of the household, as referred to in s 228B and defined in s 228A of the RT Act. A rent-paying member of the household means any person who “regularly contributes towards the rent payable under a residential tenancy agreement”, whether or not they are a tenant ([55]-[57]).
(ix) It was clear that Ms Zenkis had lost employment or income as a result of the COVID-19 pandemic, and that she was a rent-paying member of the household at the residential premises. Having regard to these facts and the evidence of the tenant about her income, the Appeal Panel was satisfied the tenant was an impacted tenant within the meaning of the RT Act, and was entitled to the protections provided by reg 41C ([58]).
(x) Accordingly, the landlord was not entitled to issue the termination notice or apply to the Tribunal for a termination order, and the Tribunal erred in making that order. Consequently, the Appeal Panel set aside the termination and possession orders, as well as the order fixing the occupation fee ([59]-[61]).
(xi) However, the Appeal Panel did not order that the bond, which had been released to the landlord, should be repaid to the tenant. Rather, it ordered that the amount of the bond should be offset against the rental arrears still payable by the tenant ([63]-[65]).
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| Consumer and Commercial Division - Tenancy
M Harrowell, Deputy President; J Kearney, Senior Member
In sum: The Appeal Panel allowed an appeal from the Consumer and Commercial Division on the basis that the Tribunal below erred by (a) denying the appellants an opportunity to present their evidence, test the other party’s evidence by way of cross-examination, and make submissions in respect of that evidence, (b) stating there was “no evidence” of the appellants’ income before and after the onset of the COVID-19 pandemic, and (c) rejecting the appellants’ claim that they were “impacted tenants” in a household that was “impacted by the COVID-19 pandemic” within the meaning of ss 228A and 228B of the RT Act.
Facts: The appellants (tenants) and respondents (landlords) were parties to a residential tenancy agreement in respect of premises in Glenwood ([1]).
In May 2020, the landlords issued the tenants a notice of termination in respect of rent arrears, and in June 2020, applied to NCAT seeking orders for termination and possession ([2]). There was no dispute that the landlords did not participate in a “formal rent negotiation process” as defined in s 228A of the RT Act ([11]).
The Tribunal made orders for termination and possession, fixed a daily occupation fee, and ordered the tenants to immediately pay the landlords $11,942.86 of rent arrears ([3]). In doing so, the Tribunal rejected the tenants’ claim that they were a household impacted by the COVID-19 pandemic, and consequently, held that the provisions in Part 13 of the RT Act and Part 6A of the RT Reg did not apply ([4]).
The tenants appealed against the termination, possession and occupation fee orders, arguing that (a) they were denied procedural fairness, in being prevented from providing further documentation of the financial impact of COVID-19 on the household, and (b) the Tribunal erred in not finding that they were impacted tenants ([7]).
Held (allowing the appeal, setting aside the possession, termination and occupation fee orders made below, and remitting the matter to be redetermined by the Tribunal differently constituted):
Whether the tenants were denied procedural fairness
(i) The transcript of the proceedings below showed that parties were not given an opportunity to present oral evidence, test the other parties' evidence or make submissions concerning the evidence. Rather, the hearing proceeded in a manner which moved from the formal hearing process to the conciliation process and back again. The tenants were not afforded an opportunity to make submissions about why the evidence they had provided (including a statement from two of the tenants’ accountant confirming a 60% reduction in their income, and oral evidence given at the hearing that the other two tenants did not contribute to rent) was sufficient to demonstrate they were COVID-19 impacted ([28(1)], [40]).
(ii) In the absence of a clearly delineated hearing process to give the parties an opportunity to cross examine and make submissions about each other’s evidence, the hearing process miscarried and both parties were denied a reasonable opportunity to be heard ([41]).
(iii) The Tribunal erroneously concluded that there was no evidence of the actual income figures of the four tenants before and after April 2020 and that this was fatal to the tenants’ claim. There was some evidence, albeit scant, concerning these matters. This evidence included that the personal income of Amir and Arash Hassani had reduced by 60% and that they were the only rent paying members of the household ([13], [17]-19], [28(2)]).
(iv) A COVID-19 impacted household is defined in s 228B of the RT Act as a household where any one or more rent-paying members of the household have lost employment or income, or had a reduction in work hours or income, due to the COVID-19 pandemic, resulting in the weekly household income (i.e. the total weekly income received by each rent-paying member of the household) by at least 25% ([31]-[33]).
(v) Esmaeil Hassani and Khadijeh Etemadifar, the parents of Amir and Arash Hassani, were pensioners and did not contribute to paying the rent. Both Esmaeil and Khadijeh were “impacted tenants”, but not “rent-paying members” of the household. Significantly, the definition of “impacted tenant” in s 228A does not require every tenant to be a “rent-paying member of the household”. Rather, the tenant must be a “member of a household impacted by the COVID-19 pandemic” ([34]).
(vi) The Appeal Panel thought that the evidence provided to the Tribunal “may” support a finding that the tenants were COVID-19 impacted, as ([37]):
a. there was evidence the only rent paying members of the household were Amir and Arash Hassani;
b. there was evidence, albeit scant, that because of the COVID-19 pandemic, the income of Amir and Arash had reduced by 60% (more than a 25% reduction);
c. only the income of rent paying members of the household is relevant to determining a household is impacted by the COVID-19 pandemic; and
d. the other two tenants, Esmaeil and Khadijeh, did not appear to be rent paying members of the household. Consequently, while they may be impacted tenants as defined under the RT Act, their income was irrelevant for the purpose of determining whether the household was impacted within the meaning of s 228B of the RT Act.
(vii) That is not to suggest that the income of all members of the household (rent paying or not) is irrelevant to the exercise of any discretion to terminate a tenancy under reg 41C(4). However, a determination under that section only arises in circumstances where a termination notice and/or application to the Tribunal has been validly made ([38]).
(viii) The Tribunal was, prima facie, in error in rejecting the tenants’ claim that they were impacted tenants in a household that was impacted by the COVID-19 pandemic ([39]).
(ix) Accordingly, the Appeal Panel set aside the Tribunal’s orders and remitted the proceedings for rehearing on the question of whether a termination order should be made, including the question of whether the tenants and/or the household were “impacted” within the meaning of the RT Act and RT Regulation ([42]).
(x) If the Tribunal finds that the tenants are impacted tenants, the landlords’ application to the Tribunal should be dismissed, as the termination notice was served in contravention of reg 41C (i.e. it was served during the moratorium period, and less than 60 days after the commencement of Part 6A) ([44]).
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| | Rice v JR & SD Farmer t/a Urban Bespoke Homes [2020] NSWCATAP 208 Consumer and Commercial Division - Home Building
T Simon, Principal Member; P H Molony, Senior Member
In sum: The Appeal Panel allowed an appeal from a decision of the Consumer and Commercial Division relating to a home building dispute, on the basis that the Tribunal below (a) erred in refusing to allow the appellants to rely on a written statement, either because it was filed late or was in the wrong form, (b) failed to calculate the cost of contractual variations in accordance with the relevant costs clause in the home building contract, (c) failed to treat increases in provisional sums as purported variations, and (d) erred in calculating the quantum meruit payable in respect of purported variations without reference to the “ceiling” created by relevant costs clauses in the contract. Of particular importance in relation to these issues was the application of the recent decisions in Mann v Paterson Constructions Pty Ltd [2019] HCA 32 (Mann) (which related to Victorian home building legislation) and Paraiso v CBS Build Pty Ltd [2020] NSWSC 190 (Paraiso) (which applied the Mann principles in a NSW context).
Facts: The appellants (homeowners) were parties to a home building contract with the respondents (builders) in respect of renovations to the homeowners’ property ([1]-[2]).
The contract between the parties was a pro forma residential building agreement provided by the Master Builders Association of NSW ([46]). Key provisions in that contract include cl 14, which sets out how variations to a contract can be established (including a requirement that variations be in writing and signed by both parties) and how the costs of additional work can be calculated, and cl 15, which deals with prime costs items and provisional sums ([58]-[59], [65]).
During the hearing, the homeowners sought to rely on the written statement of Mr Long, a sub-contractor who worked for the builders on the renovations. The Tribunal refused to permit the homeowners to rely on this statement, purportedly on the basis that it was not served in accordance with the timetable of evidence ([30]). Although no complaint was made about late service to the Member (and the parties agreed the statement had been served in time), the builders had complained that Mr Long’s statement was in the wrong form ([29]-[32]).
The Tribunal ordered that the homeowners pay the builders $26,083.35 comprised of (a) the balance owing under the completed contract, (b) adjustments for electrical and plumbing work which cost more than provisional sums in the contract (c) purported variations to the contract ([1]-[2], [81], [95]).
The homeowners appealed, arguing that the Tribunal made errors of law relating to (a) its refusal to allow the homeowners to rely on Mr Long’s statement (b) its findings about costs recoverable for purported variations (c) its findings about recovery of sums additional to the provisional allowances in the contract, and (d) bias ([27]).
Held (allowing the appeal, setting aside the decision below, and remitting the matter to the Tribunal differently constituted):
Whether the Tribunal erred in refusing to permit the homeowners to rely on Mr Long’s statement – YES
(i) If Mr Long’s statement was rejected based on a failure to file evidence in time, this was based on a misapprehension of facts. The statement was filed months before the hearing, and before the Tribunal had made directions setting down a timetable for filing evidence ([37]-[38]).
(ii) If the statement was rejected because it was in the wrong form, this was similarly without merit, as the Tribunal’s directions did not specify what form statements should take. Even if they had, the statement was filed before the Tribunal’s directions (which did not have retrospective effect). Further, ss 36 and 38 of the NCAT Act make it clear that the Tribunal is to eschew technicalities and matters of form; must ensure it has necessary evidence before it to determine the real issues in dispute justly, quickly and cheaply; can determine its own practice and procedure; and must act with as little formality as possible ([39]).
(iii) When exercising a procedural discretion such as whether or not to admit evidence, the Tribunal should be guided by ss 36 and 38, in addition to considerations such as the need to ensure procedural fairness and to require the parties to comply with Tribunal directions. In this case, there was no breach of the directions and no injustice to the builders by allowing Mr Long’s statement into evidence. The Member’s refusal was based on material errors of fact, and was plainly unjust to the homeowners ([40]).
(iv) If Mr Long’s evidence had been admitted and accepted in preference to the builders’ evidence, it would have likely resulted in a substantial reduction in the amount the homeowners were ordered to pay ([37]).
(v) In the circumstances, the Tribunal’s refusal to allow Mr Long’s statement into evidence was an error of law in the sense described in House v King [2013] HCA 40; (1936) 55 CLR 499 ([41]-[42]).
(vi) While this alone would have been sufficient to allow the appeal, the Appeal Panel proceeded to address the other issues raised ([44]).
Whether the Tribunal erred in calculating the cost of contractual variations (i.e. variations which satisfied the requirements of cl 14(d)(i)) – YES
(vii) When a Tribunal finds, at first instance, that a variation is contractually effective, it must consider whether the price was agreed, and if not, what amount the builder is entitled to under cl 14(h) and (i): Paraiso at [43] ([69]).
(viii) In relation to a number of contractual variations, contained in a list signed by both parties, the Tribunal failed to consider whether the amounts claimed were calculated in accordance with cl 14(h), as it was required to do ([75]).
(ix) With respect to contractual variations to work on the bathroom vanity, the Tribunal found that the homeowners could not dispute the charge “without evidence of unreasonableness”. This applied the wrong test, and put the burden of proving that the charge was unreasonable on the homeowners. What was required was that the builders demonstrate that the charge for each variation was (a) fair and reasonable, and (b) did not exceed the amount chargeable under the contract, calculated in accordance with cl 14(h). The failure to consider these matters was an error of law ([76]).
(x) With respect to contractual variations to work on the fireplace, the Tribunal failed to consider (a) whether the details of the variation agreed to were sufficient, and (b) whether the amount claimed by the builders exceeded the amount recoverable under cl 14(h) ([77]).
Whether the Tribunal erred in failing to treat increases to provisional sums in the contract as purported variations to the contract – YES
(xi) When considering claims for provisional sums, if the claims are not within the original scope of works, then the Tribunal must first consider whether there is a binding variation changing the scope of the works to include the new claim: Paraiso at [146] ([85]) .
(xii) In this case, the Tribunal did not consider whether the increases in the provisional sums were due to variations to the scope of works under the contract, and, if so, whether the variation had been made in accordance with cl 14. Instead, the Tribunal appeared to have treated these claims as not having been made under the contract, and as recoverable on a quantum meruit basis ([86], [89]).
(xiii) That the increased prices were due to variations was the logical conclusion from the evidence. The Tribunal’s failure to consider whether the escalation in the provisional sums was a variation in the scope of the works was, in the light of the contractual provisions, an error of law ([87]-[88]).
Whether the Tribunal erred in its calculation of the quantum meruit payable in respect of purported variations (i.e. those that did not satisfy the requirements of cl 14(d)(i)) – YES
(xiv) The High Court’s decision in Mann is authority for the proposition that the amount owing under a building contract constitutes a “ceiling” on the amount recoverable by a builder in a quantum meruit claim relating to work performed under the contract: Goncalves v Bora Developments Pty Ltd [2020] NSWCATAP 9 ([91]).
(xv) In Paraiso, Fagan J held that contract rates act as an “upper limit” on a quantum meruit claim that arises where the parties did not sign written details of a purported variation. That is, the “ceiling” rule is not limited to situations (such as the facts in Mann) where a contract is terminated through fault of the homeowners ([93]-[94]).
(xvi) In this case, where the Tribunal appeared to find that the builders were entitled to a quantum meruit claim in respect of certain unsigned variations, it did not have regard to the question of whether the amount of restitution claimed exceeded the ceiling on the amount recoverable under the contract ([98]).
(xvii) The Tribunal was required to calculate the costs of the work claimed on a quantum meruit basis in accordance with cl 14(h), which would then be the ceiling on the amount recoverable by the builders. If the amount claimed by the builders was less than the ceiling, then the builders could claim that amount by way of restitution. If the amount claimed was more than the ceiling, the amount recoverable was limited to the ceiling ([99]).
(xviii) By failing to ask itself these questions the Tribunal fell into error and applied the wrong law ([100]).
(xix) On remittal, the Tribunal will be required to (a) consider whether, in the light of the evidence before it, an entitlement to recover a quantum meruit is established, and (b) consider the impact of the “ceiling” calculated as above ([101]).
(xx) The Appeal Panel further commented that “[i]t would seem inevitable, following [Mann], that a builder seeking to recover for work done on a restitutionary basis will have to present evidence of the costs of the work and material involved, calculated in accordance with the applicable building contract” ([102]).
Whether the Tribunal’s decision was affected by actual or apprehended bias – NO
(xxi) Having reviewed the transcript of the proceedings below, the Appeal Panel did not accept that the Member made it clear “that he intended to consider any claims made by the builders as prima facie valid irrespective of the breaches by the builders of the contract terms, unless the homeowners could prove, to his satisfaction, otherwise” ([110]).
(xxii) Although he made a series of comments and rulings adverse to the homeowners, these were not made in a hostile or antagonistic fashion, they reflected the general understanding of the law before Mann, and were made in the context of proceedings where the builders were unrepresented and the Member was trying to persuade the parties to settle ([111]-[114]).
(xxiii) The Appeal Panel was not persuaded that the Member’s comments demonstrated actual bias or apprehended bias (in the sense that the Tribunal Member’s conduct might cause a lay observer to conclude that the Member might not bring an impartial mind to his determination of the claims) ([115]-[117]).
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| Administrative and Equal Opportunity Division
Cole DCJ, Deputy President; J Lonsdale, Senior Member
In sum: The Appeal Panel dismissed an appeal from a decision in the Administrative and Equal Opportunity Division, holding that the Tribunal below did not apply the wrong test, take into account irrelevant factors, reach unreasonable conclusions or give inadequate reasons in finding that the appellants had contravened provisions of the Anti-Discrimination Act 1977 (NSW) (the AD Act). In doing so, the Appeal Panel made a number of comments about the correct analysis to apply under ss 22A and 22B of the AD Act, relating to sexual harassment of employees – in particular, the tests to apply in determining whether conduct is of a “sexual nature” and “unwelcome”.
Facts: This matter concerned two appeals from a decision in which the Tribunal determined that both Vitality Works Australia Pty Ltd (VW) and Sydney Water Corporation (SW) had contravened s 22B (sexual harassment) and s 25(2)(c) (discrimination against an employee on the ground of sex) of the AD Act ([1]-[2]).
The contravention related to the display of a poster (the Poster) in the Ryde Depot of SW, which showed a photograph of the respondent, Ms Yelda, with a caption that said “Feel great – lubricate!”. In smaller writing on the poster were other phrases including “SafeSpine Injury Prevention Program – We’ve got your back”, “Kick off your SafeStarts by warming up the joints”, and “ask a SafeSpine leader or specialist for ideas” ([2], [8]-[9]).
Ms Yelda had agreed to have her photograph taken by an employee of VW for use in a health and safety campaign, but was not informed about the caption that would be used. When she saw the Poster displayed, the Tribunal found that she felt humiliated ([6], [11]-[12]).
The Poster was designed and sent electronically from VW to SW, and an employee of SW, Mr Sybra, printed copies and arranged to have them displayed, including outside the men’s toilet at the Ryde depot ([10]).
Two other posters using the same slogan were created – one depicting a group of three men in a class room, and the other a group of two men performing a neck stretch and shoulder roll. However, there was no evidence that these were ever displayed ([13], [114]).
Held (dismissing the appeal):
The extent of the appellants’ conduct
(i) The Appeal Panel rejected VW’s submission that its conduct was limited to inserting Ms Yelda’s photo into the Poster template. There was an evidential adequate basis for finding that VW managed the printing and display of posters, and that Mr Sybra was under the supervision and direction of VW when he displayed the poster. The Appeal Panel rejected the contention that these findings were so unreasonable that they could not be made ([29]-[31]).
(ii) The Appeal Panel also rejected SW’s submission that its conduct was limited to commissioning a safety campaign, or to commissioning a safety campaign and displaying the posters associated with that campaign. The Tribunal accurately described SW’s conduct as including: approving the layout and design of the Poster, authorising VW to display the Poster at SW worksites, and (jointly with VW) publishing, printing, displaying and distributing the Poster ([20]-[24], [42]).
(iii) It was clearly open to the Tribunal to find that SW was responsible for Mr Sybra’s decision to display the poster at the Ryde depot. The AD Act provides, in s 53(1), that an act done by an employee which, if done by the employer, would be a contravention of the AD Act, is taken to have been done by the employer unless the employer did not expressly or impliedly authorise the act ([62]-[65]).
(iv) The Tribunal did not apply the wrong test in determining that VW’s conduct occurred “at a place that is a workplace of both of those persons” within the meaning of s 22B(6). The AD Act defines “workplace” in s 22B(9) to mean a “place at which a workplace participant works or otherwise attends in connection with being a workplace participant”. There was no error of law in the Tribunal finding that VW was a workplace participant at the Ryde Depot at the relevant time ([93]).
Finding that the appellants’ conduct was of a “sexual nature”
(v) The Appeal Panel rejected the appellants’ arguments that the Tribunal applied the wrong test, or considered irrelevant factors, in determining whether the appellants’ conduct was conduct of a sexual nature within the meaning of the definition of sexual harassment in s 22A(b) ([33]-[36]).
(vi) The Appeal Panel rejected the SW’s submission that the Poster should be interpreted only in the context of the SafeSpine program ([42]).
(vii) Contrary to VW’s submission, there is no requirement that a poster such as the Poster contain “sexually explicit” content in order to constitute conduct of a sexual nature or sexual harassment under the AD Act. Nor is there a requirement that the conduct must be the product of a conscious decision ([44]-[46]).
(viii) The intention of SW and VW and their employees does not determine whether their conduct was “conduct of a sexual nature”. The question of whether conduct is “conduct of a sexual nature” is to be determined on an objective basis: that is, from the point of view of a hypothetical reasonable person. The Tribunal at first instance assessed the relevant conduct in this matter on an objective basis and concluded that it was conduct of a sexual nature under the AD Act. There was no error of law in that reasoning ([42], [48]).
(ix) The Appeal Panel also rejected SW’s argument that the Tribunal took into account, as an irrelevant factor, “the hypothetical capacity of conduct to be construed in a prurient way”, in determining whether it was of a sexual nature. The objective assessment that the words with the picture on the Poster were reasonably capable of conveying a sexual meaning (to a hypothetical reasonable person) was not an irrelevant factor, but the application of the objective test in s 22A(b) ([59]-[60]).
(x) SW’s intentions, objectives, and awareness with respect to the possible meaning of the Poster were not determinative of the question of whether printing and displaying the Poster constituted conduct of a sexual nature ([60]-[61]).
(xi) It was also not an error for the Tribunal to note that the dictionary definition of the word “lubricate” did not “greatly assist” in resolving the conflict between the parties, as it did not “easily apply to either party’s contention for how the word ‘lubricate’ should be interpreted in the context of the Poster” ([67]-[70]).
(xii) Clearly the Poster may bear more than one interpretation by the hypothetical reasonable person. The existence of products referred to as “lubricants” for sexual purposes is notorious. It was open to the Tribunal to determine that the poster, with its juxtaposition of a smiling Ms Yelda with her hand in the air pointing to the words “Feel great – lubricate”, viewed objectively, conveyed a sexual meaning. There was no error of law ([70], [75]).
Finding that the appellants’ conduct was “unwelcome”
(xiii) The Appeal Panel rejected VW’s argument that the Tribunal applied the wrong test and/or took into account irrelevant factors in determining whether the conduct was “unwelcome” within the meaning of s 22A(b) ([79]).
(xiv) VW relied on the decision in O’Callaghan v Loder [1983] 3 NSWLR 89 which held that, in relation to discrimination in the form of sexual harassment, an employer “must either know that his conduct is unwelcome, or the circumstances must be such that he should know it”. However, this case no longer reflects the definition of “sexual harassment” in s 22A of the AD Act ([86]-[89]).
(xv) The Tribunal did not err in adopting the test for the meaning of “unwelcome” conduct set out in Re Aldridge v Booth [1988] FCA 170 at [4]-[5] and GLS v PLP (Human Rights) [2018] ECAT 221 at [33] (although the Appeal Panel noted that these passages should be applied bearing in mind that they also relate to different statutory schemes) ([92]).
Finding that the appellants’ conduct was “in relation to” Ms Yelda
(xvi) The Tribunal did not fail to give adequate reasons for why it held that Sydney Water’s conduct was “in relation to” Ms Yelda within the meaning of s 22A(b). It was self-evident that the conduct was “in relation” to Ms Yelda, as she was pictured on the Poster. The “conduct of a sexual nature” in s 22A(b) of the Act does not have to be solely, or even principally, “in relation to” the person harassed ([78]).
Finding that a reasonable person would have anticipated that Ms Yelda would be offended, humiliated or intimidated
(xvii) The Tribunal was clearly aware that sexual harassment under s 22A of the AD Act requires both “unwelcome” conduct of a “sexual nature” and the anticipation of a reasonable person, in all the circumstances, that the person in Ms Yelda’s position would be “offended, humiliated or intimidated”. It did not conflate these elements ([50]-[52]).
(xviii) The Appeal Panel also rejected VW’s argument that the Tribunal took into account irrelevant factors in determining the circumstances in which a reasonable person would have anticipated that Ms Yelda would be offended, humiliated or intimidated, including the size and location of the Poster, and the knowledge that “it was a predominantly blue-collar workforce which would be viewing the Poster” ([53]-[55]).
(xix) The Appeal Panel declined leave for Vitality Works to appeal on an issue of fact, being that the Tribunal erred in finding that Ms Yelda was offended, humiliated or intimidated by the Poster. There was sufficient evidentiary basis for this finding, and the Tribunal below was best placed to assess how genuine Ms Yelda’s opinions and feelings about the Poster were ([99]-[110], [122]).
Finding that Ms Yelda was treated less favourably than a member of “the opposite sex” within the meaning s 24(1)(a)
(xx) There was no error of law in the Tribunal’s finding that Ms Yelda was treated less favourably than a member of “the opposite sex” within the meaning of s 24(1)(a) of the AD Act. In considering this issue, the relevant comparators were the men featured on the other posters designed by Vitality Works, and Mr Mead, who had his photo taken at the same time as Ms Yelda, but was not featured on a poster ([117]-[118]).
(xxi) Accordingly, both Vitality Works’ and Sydney Water’s appeals were dismissed, as no errors of law were established ([121], [123]).
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| Administrative and Equal Opportunity Division
Armstrong J, President; M Harrowell, Deputy President; A Suthers, Principal Member
In sum: The Appeal Panel refused leave to extend time for filing an appeal against a decision made by the Tribunal in 2018, which “declined to determine” numerous applications in respect of complaints under the AD Act. Although the appellant should have been given notice of the decision below, and part of the decision related to proceedings which were then the subject of a stay order, the Appeal Panel did not think that these (potential) procedural errors worked any practical injustice on the appellant, such that the extension of time to appeal should be granted.
Facts: The underlying dispute between the parties to this appeal, relating to complaints under the AD Act, has traversed the gamut of relevant tribunals and courts in New South Wales, as well as the High Court. In Burns v Corbett [2018] HCA 15, it was confirmed that NCAT lacks power to determine disputes between residents of different states (as Mr Gaynor and Mr Burns are), as this involves an exercise of federal jurisdiction ([1]-[3], [11]).
Having conducted a belated review of the NCAT proceedings, Mr Gaynor identified a potential irregularity in an order made by the Tribunal in February 2018. In sum, the Tribunal “declined to determine” 10 applications on the basis that they involved the exercise of federal diversity jurisdiction, and dismissed a further 3 applications because Mr Burns had withdrawn them (the Decision) ([5]-[7], [12]).
In April 2020, Mr Gaynor sought to appeal the Decision, on the basis that (a) the Tribunal made the Decision without power, as the proceedings in respect of one of the applications it “declined to determine” were stayed by an order of the Appeal Panel; (b) if the Tribunal was not satisfied it had jurisdiction to determine the proceedings, they should have been dismissed as misconceived or lacking in substance; (c) the Tribunal denied him procedural fairness, and (d) the Decision was made under s 108(2)(g) of the AD Act, and should not have been made absent a finding that the complaints were substantiated. The appeal was filed more than 2 years out of time ([5], [9], [24]-[25]).
Held (refusing an extension of time):
(i) Despite accepting that there may have been a procedural error made by the Tribunal in making the Decision, in that it made an order in respect of one of the proceedings whilst a stay may have been in effect and made the Decision without notice to the parties, the Appeal Panel decided not to exercise its discretion to extend time for lodging the notice of appeal ([10]).
Effect of a previous Appeal Panel’s stay order
(ii) One of the proceedings which the Tribunal “declined to determine” in the Decision was, at the time of the Decision, still subject to a stay order made by an Appeal Panel in April 2015. That Appeal Panel had ordered that the particular proceedings be stayed until an interlocutory application for summary dismissal, and any internal or external appeal from that application, had been determined. While the interlocutory application was determined in October 2015, Mr Burns did not abandon his internal appeal in respect of that determination until May 2018 (after the Decision was made) ([26]-[29]).
(iii) The Appeal Panel in this case noted that the stay might not have been effective, as the previous Appeal Panel had purported to exercise federal jurisdiction in ordering the stay ([36]).
(iv) Even assuming that the stay was effective, the Decision did not create any binding determination of the controversy between the parties, but rather, was a manifestation of the Tribunal “forming an opinion as to whether the claim amount[ed] to one invoking federal jurisdiction”: Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213 (Wilson); Burns v Gaynor [2017] NSWCA 3 at [95], [97] ([33], [35], [37]).
(v) In any event, noting that it is a discretionary exercise to grant prohibition where there is an error on the face of the record of an inferior court/tribunal, the Appeal Panel did not consider that the Tribunal’s potential error in the Decision, relating to the stay, had sufficient merit to cause it to vary, quash or set aside the Decision if an extension of time were granted. Further, there was no practical injustice arising from the decision ([38]-[39]).
Failure to afford procedural fairness
(vi) Mr Gaynor also argued that he was not afforded procedural fairness, as the Tribunal did not give him notice of its intention to make the Decision ([51]).
(vii) While it would have been proper for the parties to have had notice of the Tribunal’s intention to make the Decision, after dispensing with a hearing and the opportunity to make submissions under ss 50(2) and (3) of the NCAT Act, Mr Gaynor lost no opportunity to obtain a more favourable result through this deficiency. There was no practical injustice ([52]-[53]).
Other grounds of appeal
(viii) Mr Gaynor made a number of other unsuccessful arguments, which the Appeal Panel found had no merit and did not warrant an extension of time, including that:
a. the Tribunal below had no power to “decline to determine” proceedings which raised issues previously determined by the Tribunal. Mr Gaynor pointed to the decision of a differently constituted Tribunal which summarily dismissed multiple applications by Mr Burns on the basis that there was “no public act in New South Wales” established (as required by s 49ZT of the AD Act). However, that summary dismissal was beyond power, as it was made in the purported exercise of federal jurisdiction, and could therefore be treated as “no decision at all”: Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11. Further, there was no evidence that the facts underlying the summary dismissal were sufficiently similar to the facts underlying the Decision, or that Mr Burns had consented to his rights relating to the Decision being determined by the summary dismissal ([27], [40]-[44]).
b. the Tribunal should have dismissed the proceedings under s 55(1)(b) of the NCAT Act, or alternatively, under s 102 of the AD Act. Section 102 was not available, as it requires adjudication on a complaint in the exercise of judicial power. It was not necessary to determine whether the Tribunal could have dismissed the proceedings under s 55 as misconceived or lacking in substance, because it certainly had no power to do so in a way which created a binding determination on the merits of the justiciable controversy between the parties: Wilson at [11]. Further, the option of transferring proceedings to a court with jurisdiction is only available in respect of applications in the Consumer and Commercial Division ([45]-[49]).
c. the Tribunal made the Decision in reliance on s 108(2)(g) of the AD Act, which requires that the Tribunal find a complaint “substantiated” before “declin[ing] to take any further action”. Despite the similar wording between this subsection and the Decision, there was no proper basis to assume the Tribunal made the Decision based on the power in s 108. Rather, the Tribunal clearly declined to determine the applications because they involved the exercise of federal diversity jurisdiction ([54]-[55]).
(ix) Mr Gaynor’s appeal had no merit, and was unable to demonstrate that strict compliance with the rules (i.e. the time limit for filing appeals) would work an injustice on him. Further, the delay in lodging the appeal was exceptionally long, without a convincing explanation. Accordingly, leave to extend time was refused ([57]-[59]).
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| | | Administrative and Equal Opportunity Division
Decision of: Armstrong J, President; M Harrowell, Deputy President; A Suthers, Principal Member
Catchwords: APPEAL – Jurisdiction – Federal Matter – Procedural irregularity – Leave to extend time for filing Notice of Appeal – Appeal lodged years out of time – Leave refused
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| Consumer and Commercial Division - Home Building
Decision of: T Simon, Principal Member; S Frost, Senior Member
Catchwords: APPEAL – expert opinion evidence – failure to refer to or comply strictly with Expert Witness Code – potential conflict of interest – discretion to reject the tender of an expert report filed and served late
APPEAL – application for extension of time to lodge appeal – length of delay – prejudice to other party – prospects of success
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| Consumer and Commercial Division - Strata
Decision of: S Westgarth, Deputy President; D Robertson, Senior Member
Catchwords: ADMINISTRATIVE LAW – Civil & Administrative Tribunal (NSW) – appeal on a question of law, substantial miscarriage of justice, appointment of a compulsory strata manager, orders disproportionate to alleged failings of Owners Corporation
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| Consumer and Commercial Division - Home Building
Decision of: S Higgins, Senior Member; G Walker, Senior Member
Catchwords: APPEAL – home building contract – construction of terms of the agreement – whether the agreement included the disputed stormwater drainage work
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| Consumer and Commercial Division - Retirement Villages
Decision of: N Hennessy ADCJ, Deputy President; L Pearson, Principal Member
Catchwords: APPEAL – application for costs on appeal – whether there are special circumstances warranting a costs order
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| Consumer and Commercial Division - Home Building
Decision of: T Simon, Principal Member; P H Molony, Senior Member
Catchwords: APPEAL– discretion regarding admission evidence – Tribunal decision based on a mistaken view of relevant facts – refusal to admit evidence did not facilitate the just, quick and cheap resolution of the real issues in the proceedings – Tribunal decision to refuse admission of evidence due to improper form - s 36 and 38(4) Civil and Administrative Tribunal Act 2013 – appeal allowed.
APPEAL – Building and Construction – home building - requirement for variations to be in writing and signed – variation not in writing not enforceable in contract – recovery for unenforceable variation on a quantum meruit – cost of variation calculated in accordance with the contract constitutes cap on what may be recovered as fair and reasonable cost of work.
ADMINISTRATIVE LAW – appeal on a question of law – bias – actual bias – apprehended bias – decision not affected by actual or apprehended bias.
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| Consumer and Commercial Division - Motor Vehicles
Decision of: R Dubler SC, Senior Member; G Blake AM SC, Senior Member
Catchwords: COSTS – party/party – amount claimed or in dispute - general rule that costs follow the event – costs should follow the event
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| Administrative and Equal Opportunity Division
Decision of: Cole DCJ, Deputy President; J Lonsdale, Senior Member
Catchwords: APPEAL – anti-discrimination – allegation of sexual harassment by display of a poster at the workplace – allegation of discrimination in work on the basis of sex
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| Administrative and Equal Opportunity Division
Decision of: Hennessy ADCJ, Deputy President; J Lonsdale, Senior Member
Catchwords: APPEAL – administrative law – freedom of information STATUTORY INTERPRETATION – Government Information (Public Access) Act 2009 (NSW) meaning of s 4 (definition of ‘government information’) – meaning of 75(1), meaning of s 112, meaning of s 53(1)
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| Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; J Lonsdale, Senior Member
Catchwords: PROCEDURE – civil – judgments and orders amending, varying and setting aside – setting aside – no error demonstrated
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| Consumer and Commercial Division - Commercial
Decision of: K Rosser, Principal Member; G K Burton SC, Senior Member
Catchwords: Dividing Fences – adequacy of reasons and findings on jurisdictional facts and discretionary grounds – extension of time – discretionary considerations – prospects on appeal – explanation for delay – prejudice and utility of remission for further hearing
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| Consumer and Commercial Division - Home Building
Decision of: A Suthers, Principal Member
Catchwords: APPEAL – Costs – costs of application for a stay
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| Administrative and Equal Opportunity Division
Decision of: Cole DCJ, Deputy President; Emeritus Prof GD Walker, Senior Member
Catchwords: APPEALS – Leave to appeal – basis to appeal on question of fact not established – requirement of search
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| Decision of: S Westgarth, Deputy President; G Curtin SC, Senior Member
Catchwords: CONTRACTS – remedies – damages – after repudiation – measure of damages – proper construction of contracts
CIVIL PROCEDURE – jurisdiction – inferior tribunal – equitable defence
CIVIL PROCEDURE – jurisdiction – whether s 48K(9) of the Home Building Act 1989 confers jurisdiction on the Tribunal despite cl 5(7) of Sch 4 of the Civil and Administrative Tribunal Act 2013
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| Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; G Curtin SC, Senior Member
Catchwords: APPEALS – points not taken at hearing – grounds not raised in Notice of Appeal or in submissions – not arguable on appeal – adjournment of appeal – refusal
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| Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; M Gracie, Senior Member
Catchwords: APPEAL - Leave to appeal from decision on costs from Consumer and Commercial Division of NCAT - no question of law - usual order that costs follow the event - successful party - leave to appeal refused
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| Consumer and Commercial Division - Tenancy
Decision of: M Harrowell, Deputy President; J Kearney, Senior Member
Catchwords: LAND LAW – Residential tenancy agreement – termination of tenancy for non-payment of rent – COVID-19 pandemic – prohibition on giving termination notice in moratorium period – relevance of income of tenant who is not a rent paying member of a household in determining if household and tenant are impacted by the COVID-19 pandemic.
PRACTICE AND PROCEDURE – conciliation process unsuccessful and hearing completed – Parties not afforded opportunity to present evidence and ask questions
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| Consumer and Commercial Division - Social Housing
Decision of: M Harrowell, Deputy President; T Simon, Principal Member
Catchwords: LAND LAW – termination of residential tenancy agreement – failure to consider relevant evidence – miscarriage of discretion
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| Consumer and Commercial Division - Motor Vehicles
Decision of: S Westgarth, Deputy President; G Burton SC, Senior Member
Catchwords: APPEAL – question of law, leave grounds, procedural fairness, disability, Australian Consumer Law
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| Consumer and Commercial Division - Tenancy
Decision of: G Blake Am SC, Senior Member; M Gracie, Senior Member
Catchwords: APPEAL – NCAT – error of law – discretion miscarried
RESIDENTIAL TENANCY – excessive rent – withdrawal by landlord of part of the facilities provided with residential premises – date from which excessive rent order applies
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| Consumer and Commercial Division - Social Housing
Decision of: P Durack SC, Senior Member; J Lucy, Senior Member
Catchwords: APPEALS – residential tenancy of social housing – termination proceedings – unlawful use of residential premises – landlord’s exercise of statutory right to extend fixed term – exercise occurred subsequent to commencement of termination proceedings – whether alleged unlawful use of the residential premises still available to justify termination – whether landlord waived right to pursue a termination order.
APPEALS – civil procedure – appeal from interlocutory decision – order for stay of Tribunal proceedings pending determination of criminal proceedings – decision not attended by sufficient doubt – no substantial injustice if leave to appeal refused – discretionary decision on particular facts – no error of principle or question of public importance – leave to appeal refused
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| Administrative and Equal Opportunity Division
Decision of: Hennessy ADCJ, Deputy President; Dr Lucy, Senior Member
Catchwords: APPEAL – questions of law – making a finding of fact for which there is no evidence – meaning of giving “proper, genuine and realistic consideration” to a matter;
STATUTORY INTERPRETATION – meaning of s 75 of Government Information (Public Access) Act 2009
ORDERS – scope of remittal powers under s 63 and s 65 of Administrative Decisions Review Act 1997 (NSW)
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| Occupational Division
Decision of: Hennessy ADCJ, Deputy President; Dr Lucy, Senior Member
Catchwords: APPEAL – where appellant has appealed on questions other than questions of law – whether leave should be given to appeal – whether, if leave is given, the Appeal Panel should admit further evidence on appeal
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| Consumer and Commercial Division - Tenancy
Decision of: M Harrowell, Deputy President; J Kearney, Senior Member
Catchwords: LAND LAW – Residential tenancy dispute – termination for non-payment of rent – COVID-19 pandemic – legislation prohibiting issue of termination notice or making application to Tribunal where tenant impacted by pandemic – challenge to findings concerning whether tenant was an impacted tenant and consequential orders
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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.
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