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| NCAT Appeal Panel Decisions Digest January 2019 Decisions
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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.
The following decisions were handed down during January 2019. Each case title is hyperlinked to the full decision available on NSW Caselaw.
The latest issue features summaries of recent Appeal Panel decisions, including: - CME v University of Technology Sydney [2019] NSWCATAP 3, which addressed the question of whether the Privacy and Personal Information Protection Act 1998 applies to the publication of Tribunal decisions;
- Liang v University of Technology Sydney [2019] NSWCATAP 17, an example of where “special circumstances” existed for the purpose of an award of costs under s60 of the CAT Act;
- Luk v Commissioner of Police, NSW Police [2019] NSWCATAP 23, which considered whether a Criminal Code offence was a prescribed offence for the purposes of the Security Industry Act 1997; and
- Raissis v Anaz [2019] NSWCATAP 25, which addressed procedural fairness and the Tribunal’s obligation under s38(6)(a) of the CAT Act. The decision also considered the effect of the Surveillance Devices Act 2007 on the admissibility of evidence in the Tribunal.
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| CME v University of Technology Sydney [2019] NSWCATAP 3
Administrative and Equal Opportunity Division – GIPA and Privacy
Hennessy LCM, Deputy President; G K Burton SC, Senior Member
In 2000, the Australasian Legal Information Institute (AustLII) published a decision provided to it by the Victorian Civil and Administrative Tribunal (VCAT), to which the appellant was a party. In 2016, VCAT refused the appellant’s application to remove the decision from AustLII but removed any reference to the appellant’s address ([1]). The appellant applied to the Tribunal to review AustLII’s conduct under the Privacy and Personal Information Protection Act 1998 (PPIP Act), particularly in relation to the alleged publication of personal information without consent ([3]-[4]).
At first instance, the Tribunal dismissed the application for the reason that it did not have jurisdiction due to s6 of the PPIP Act: ([5]). In the alternative, the Tribunal held that the exemption in s25 of the PPIP Act relating to lawful authorisation applied.
Held (dismissing the appeal):
(i) The Tribunal was correct in concluding that it did not have jurisdiction to hear the review application and in summarily dismissing the matter ([8]-[9], [21]). Section 6 of the PPIP Act provides that the PPIP Act does not affect the manner in which a court or tribunal exercises the court’s or tribunal’s judicial functions. Section 147 of the VCAT Act provides VCAT with a discretion to publish its decisions ([18]). VCAT in providing its decision to AustLII for publication on a website was simply exercising its judicial function in a particular way. “The exercise of a judicial function is not subject to the PPIP Act regardless of the manner in which that function is exercised” ([20]).
(ii) Due to the conclusion on s6 PPIP Act it was not necessary to determine the s25 PPIP Act issue. However, the Appeal Panel noted that the reference to “law” in s25 PPIP Act is not limited to NSW law. The Tribunal did not err in applying the exemption in the alternative.
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| Liang v University of Technology, Sydney [2019] NSWCATAP 17
Consumer and Commercial Division – General
R Titterton, Principal Member; J Kearney, Senior Member
The respondent, the successful party in the appeal, sought costs for the first instance decision and the appeal, in part on a party/party basis and, in part, on an indemnity basis ([4]).
The Appeal Panel only dealt with the application for costs of the appeal ([6]). The expression “special circumstances” in the costs rule provision in s60 of the Civil and Administrative Tribunal Act 2013 (CAT Act) means:
“circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional. Further, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. Each situation must, of course, be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs.”: Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148 at [43] ([11]).
Held (allowing the costs application): There were “special circumstances” that warranted an award of costs because:
- “the appeal grounds were all without substance
- the appellant conducted the proceedings in a way that unnecessarily disadvantaged the respondent (s60(3)(a)). This was particularly manifested in the appellant’s lengthy and generalised submissions, exacerbated by some of the submissions making no sense, or being irrelevant;
- the scandalous matters referred to in pars [94] and [95] of the appeal decision” ([19]).
The Appeal Panel exercised its discretion to award costs in the respondents’ favour ([22]). |
| Luk v Commissioner of Police, NSW Police [2019] NSWCATAP 23
Administrative and Equal Opportunity Division – Administrative Review
M Schyvens, Deputy President; L Pearson, Principal Member
The Commissioner of Police NSW revoked the appellant’s class 1AC security licence under ss16(1)(b) and 26(1A) of the Security Industry Act 1997 (SI Act) on the ground that the appellant had been found guilty (without a conviction) of a prescribed offence. Clause 15 of the Security Industry Regulation 2016 (SI Regulation) prescribes offences “involving stalking or intimidation”. It is an offence under s474.17 of the Criminal Code Act 1995 (Cth) (Criminal Code) to use a carriage service “in a way… that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive” ([14]). The appellant’s conduct involved making telephone calls and sending text messages threatening his former partner and their children. The appellant was found guilty (but not convicted) of the offence under s474.17 of the Criminal Code in a NSW Court ([5]). The appellant applied to the Tribunal for administrative review of the licence revocation ([3]).
At first instance, the Tribunal affirmed the Commissioner’s decision. The Tribunal held that the appellant had been found guilty of an offence “involving stalking or intimidation” despite the provision not using those express words and, that this was a “prescribed offence” under the SI Regulation for the purposes of s26(1A) of the SI Act. Therefore, neither the Commissioner nor the Tribunal had any discretion in relation to the mandatory revocation of the licence ([3], [7]).
On internal appeal, the appellant argued the Tribunal had erred in law in finding that the offence under s474.17(1) of the Criminal Code was a “prescribed offence” within the meaning of s16(1)(b) of the SI Act by reason of cl15(1)(i) of the SI Regulation ([9], [23]).
Held (dismissing the appeal):
The Tribunal had to determine the ordinary and grammatical meaning of the words “offence involving… intimidation” having regard to their context and legislative purpose, given the absence of a statutory definition: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 ([29]).
There are various ways in which the SI Regulation identifies and prescribes offences for the purpose of s16(1) of the SI Act. In this context, the Tribunal was correct in concluding that there is limited work for the principle of statutory construction that the express mention of one thing excludes another (exclusion unius) ([32]). In interpreting and applying cl15(1)(i) of the SI Regulation, the decision-maker must characterise the particular offence that the person has been convicted or found guilty of in determining whether it involves the conduct described in cl15, namely “stalking or intimidation” ([33]). The principles in Farah v Director, Department of Finance and Services [2014] NSWCATAP 23 apply ([37]).
There was no error in the Tribunal considering two dictionary definitions of “involves” (meaning “includes” or “entails”) in interpreting cl15 and in concluding that the offence in s474.17(1) of Criminal Code was a prescribed offence for the purposes of the SI Act ([39]).
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| Raissis v Anaz [2019] NSWCATAP 25
Consumer and Commercial Division – Tenancy
A Britton, Principal Member; J McAteer, Senior Member
The respondent entered into a residential tenancy agreement with the appellant. The respondent applied to the Tribunal for an order that the appellant repay the $3000 bond. The appellant made a cross-application for an order that the respondent pay him a $2000 “break lease fee”. The respondent was never given keys to nor occupied the subject premises.
At first instance, the Tribunal found that the appellant repudiated the agreement by not giving the respondent possession to the subject premises. The Tribunal ordered the appellant to repay the bond to the respondent.
The appellant’s grounds of appeal were i) the Tribunal erred in revoking leave for the appellant to be represented by his brother at the hearing; ii) the Tribunal erred in failing to invite the appellant’s brother to give evidence at the hearing; iii) the Tribunal erred by admitting a covertly recorded conversation into evidence; and iv) the weight of evidence supported the conclusion that it was the respondent, not the appellant, who repudiated the agreement ([5]-[6]).
Held (dismissing the appeal):
(i) The Tribunal did not err in revoking leave for the appellant’s brother to represent him under r32(2) of the Civil and Administrative Tribunal Rules 2014. The Tribunal did not fail to address the pre-requisites to exercising this power ([13]). The revocation was not “unreasonably or plainly unjust” ([14]). Neither was there a denial of procedural fairness. Section 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (CAT Act) requires the Tribunal to take measures that are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or have their submissions considered, but not to afford a person every opportunity to present their case (emphasis in original). The appellant represented himself and actively participated in the proceedings despite the contention that his brother would have been better able to present his case ([15]).
(ii) Section 38(6)(a) of the CAT Act should not be given its literal meaning. First, this would produce a “patently unintended” result and offend the “golden rule” of statutory construction. Secondly, that interpretation would be inconsistent with the objects of the CAT Act, including the just, quick and cheap resolution of proceedings. (Note, the Appeal Panel did not determine the parameters of the s38(6)(a) obligation). The Tribunal did not breach s38(6)(a) by not calling evidence from the appellant’s brother ([24]-[27]).
(iii) It was open to the Tribunal to admit the conversation recorded contrary to the Surveillance Devices Act 2007 into evidence, consistent with its power to determine its own procedure. Even if the Evidence Act 1995 applied, it would have been open to the Tribunal to admit the recording after undertaking the balancing act under s138(3) ([31]-[36]).
(iv) A decision that a finding was “against the weight of evidence” means:
“[W]here the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach”: Collins v Urban [2014] NSWCATAP 17 at [77] ([46]).
The finding that the appellant’s comments amounted to repudiation of the agreement was open to the Tribunal. The evidence did not weigh so heavily against this conclusion that no reasonable tribunal member could have reached it ([47]).
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Murphy v Trustees of Catholic Aged Care Sydney (No 2) [2019] NSWCATAP 1
Consumer and Commercial Division – Retirement Villages
Decision of: M Harrowell, Principal Member; R Seiden SC, Principal MemberCatchwords: COSTS – s60 Civil and Administrative Tribunal Act 2013 – Special circumstances. |
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Singh v Khan [2019] NSWCATAP 2
Consumer and Commercial Division – Commercial
Decision of: L P Robberds QC, Senior Member; D A C Robertson, Senior MemberCatchwords: APPEAL – interlocutory decision – no issue of principle. |
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Garside v Carroll [2019] NSWCATAP 4
Consumer and Commercial Division – Home Building
Decision of: M Harrowell, Principal Member; T Simon, Senior MemberCatchwords: PRACTICE AND PROCEDURE – Leave to appeal – substantial delay – inadequate explanation of delay – no substantial prospects of success – fresh evidence – evidence reasonably available at time or original hearing. |
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Steward v McKay (No 2) [2019] NSWCATAP 5
Consumer and Commercial Division – Tenancy
Decision of: R Titterton, Principal Member; D Charles, Senior MemberCatchwords: COSTS – special circumstances established – lump sum costs order made. |
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Feedback Deli Pty Ltd v The Owners – Strata Plan No 36613 [2019] NSWCATAP 6
Consumer and Commercial Division – Strata
Decision of: R C Titterton, Principal Member; A Boxall, Senior MemberCatchwords: PRACTICE AND PROCEDURE – whether Tribunal erred in failing to join a party, and subsequently dismissing proceedings. |
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Ahearn v Doig [2019] NSWCATAP 7
Consumer and Commercial Division – Retirement Villages
Decision of: S Westgarth, Deputy President; D Robertson, Senior MemberCatchwords: Evidence relied upon at first instance – fresh evidence – mitigation. |
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Long v Metromix Pty Ltd [2019] NSWCATAP 8
Consumer and Commercial Division – General
Decision of: M Harrowell, Principal MemberCatchwords: PRACTICE AND PROCEDURE – Representation – applicable principles. |
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Bardic v Okere [2019] NSWCATAP 9
Consumer and Commercial Division – Retirement Villages
Decision of: G K Burton SC, Senior Member; M Anderson, Senior MemberCatchwords: Residential tenancy – disposal of tenant’s goods by landlord – no error of law – no basis for leave. |
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Hoang v Halim [2019] NSWCATAP 10
Consumer and Commercial Division – Tenancy
Decision of: R L Hamilton SC, Senior Member; R Perrignon, Senior MemberCatchwords: APPEALS – interlocutory decision – application filed out of time – discretion to extend time refused – leave to appeal required – residential tenancy matter – leave to file appeal out of time. |
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Hsueh v Alldis & Cox (Coogee) Pty Ltd [2019] NSWCATAP 11
Consumer and Commercial Division – Commercial
Decision of: F Corsaro SC, Senior Member; D A C Robertson, Senior MemberCatchwords: APPEAL – No question of law – no issue of principle. |
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Pines Resort Management Pty Ltd t/as Gateway Lifestyle the Pines v Marsh [2019] NSWCATAP 12
Consumer and Commercial Division – Residential Communities
Decision of: M Harrowell, Principal MemberCatchwords: COSTS – special circumstances – order where proceedings dismissed prior to final hearing as appeal withdrawn. |
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Rahmany v Zhu [2019] NSWCATAP 13
Consumer and Commercial Division - Tenancy
Decision of: M Harrowell, Principal Member; T Simon, Senior MemberCatchwords: APPEALS – Leave to appeal – miscalculation of award – challenge to findings concerning breach of residential tenancy agreement and assessment of loss. |
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Ashcroft Cleaning Services Pty Ltd t/as Wiseberry Acclaim Real Estate v Braganza [2019] NSWCATAP 14
Consumer and Commercial Division – Commercial
Decision of: M Harrowell, Principal Member; T Simon, Senior MemberCatchwords: APPEAL – Leave to appeal – finding of misrepresentation in connection with agency agreement – failure to disclose relevant market conditions – decision available on the evidence. |
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Akter as the Executor of the Estate of the late AKM Shamsuzzaman v Keane [2019] NSWCATAP 15
Consumer and Commercial Division – General
Decision of: M Harrowell, Principal Member; A Boxall, Senior MemberCatchwords: APPEAL – Leave to appeal – Reconciliation of contract payments – Evaluation of evidence. |
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Hylton v Hayes [2019] NSWCATAP 18
Consumer and Commercial Division – Commercial
Decision of: R Titterton, Principal Member; S Frost, Senior MemberCatchwords: APPEAL – question of law – denial of procedural fairness – whether a hearing was conducted. |
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Taylor v Joye [2019] NSWCATAP 19
Consumer and Commercial Division – Commercial
Decision of: R C Titterton, Principal Member; R L Hamilton SC, Senior MemberCatchwords: COSTS – application of correct costs rule – Rule 38 of the Civil and Administrative Tribunal Rules 2014 does not apply – s60 of the Civil and Administrative Tribunal Act 2013 (NSW) 2013 applies. |
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Profitability Consulting Pty Ltd v Thorpe [2019] NSWCATAP 20
Consumer and Commercial Division – General
Decision of: L Pearson, Principal Member; D A C Robertson, Senior MemberCatchwords: APPEAL – procedural fairness – refusal of representation – apprehended bias – failure to address substantial submissions. STATUTORY INTERPRETATION – Property, Stock and Business Agents Act – whether ss36 and 55 applicable to unlicensed agents – whether appellant was acting as an agent within the meaning of the Act. WORDS AND PHRASES – Real estate agent – on-site residential property manager. |
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ZJF v ZJG [2019] NSWCATAP 21
Guardianship Division
Decision of: M Schyvens, Deputy President; A Suthers, Senior Legal Member; L Porter, Community MemberCatchwords: APPEAL – Guardianship Division – review of enduring guardianship – guardianship and financial management orders – no question of law identified – whether leave should be granted to appeal on questions other than questions of law. |
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Oz Local Australia Pty Ltd v Girl Friday Solutions Pty Ltd [2019] NSWCATAP 22
Consumer and Commercial Division – General
Decision of: M Harrowell, Principal Member; J Kearney, Senior MemberCatchwords: APPEAL – Leave to adduce fresh evidence in circumstances where default in compliance with directions - Challenge to dismissal of the adjournment application in circumstances where company failed to appear, medical evidence insufficient and no explanation provided why another representative would not appear – Extension of time to appeal – inadequate and inconsistent explanation of why appeal not lodged in time – evidence before the Tribunal sufficient to justify conclusions reached. |
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ZJQ v ZJR [2019] NSWCATAP 24
Guardianship Division
Decision of: L Pearson, Principal Member; R Booby, Senior Member; M Spencer, General MemberCatchwords: APPEAL – renewal of guardianship order on requested review – accommodation function - whether error in renewing appointment of Public Guardian. |
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John Maait Properties Pty Ltd v The Owners - Strata Plan No 50396 [2019] NSWCATAP 26
Consumer and Commercial Division – Strata
Decision of: M Harrowell, Principal Member; Dr J Lucy, Senior MemberCatchwords: STRATA SCHEMES – unauthorised alteration to common property – obligation on Owners Corporation to reinstate common property – damages for breach of duty to repair – by-law regulating security access to building – by-law limiting access devices and areas of common property to which access is given – not harsh, unconscionable or oppressive – jurisdiction to award damages for loss arising from exercise of power in respect of issuing security access devices. |
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Kesselring v Van Bodegraven [2019] NSWCATAP 27
Consumer and Commercial Division – Tenancy
Decision of: L Pearson, Principal Member; Dr R Dubler SC, Senior MemberCatchwords: APPEAL – Residential tenancies – Fixed term agreement - Proposed sale of premises – Agreement to vacate – Whether error on question of law. |
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Vella v Mir [2019] NSWCATAP 28
Consumer and Commercial Division – Home Building
Decision of: K Rosser, Principal Member; J Kearney, Senior MemberCatchwords: APPEAL – Home Building – Definition of major defect – Limitation defence or jurisdictional issue – s18F defence – Jones v Dunkel inference. |
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ZHT v NSW Trustee and Guardian [2019] NSWCATAP 29
Administrative and Equal Opportunity Division – Administrative Review
Decision of: Hennessy LCM, Deputy President; S Frost, Senior MemberCatchwords: APPEAL – no question of law identified – whether leave to appeal should be granted. |
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Jones v American Express Australia Limited [2019] NSWCATAP 30
Consumer and Commercial Division – General
Decision of: A P Coleman SC, Senior Member; A Suthers, Principal MemberCatchwords: Appeal – procedural fairness – Tribunal received unsworn evidence. |
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Harrison v Riley [2019] NSWCATAP 31
Consumer and Commercial Division – General
Decision of: L Pearson, Principal Member; S Montgomery, Senior MemberCatchwords: APPEAL – Parties to contract – Whether error in conclusion that work not undertaken with due care and skill – Evidence. |
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Zhang v Tam [2019] NSWCATAP 32
Consumer and Commercial Division – Tenancy
Decision of: S Westgarth, Deputy President; S Montgomery, Senior MemberCatchwords: Appeal – out of time – no error identified. |
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Dimitriou v Sigdel [2019] NSWCATAP 33
Consumer and Commercial Division – Tenancy
Decision of: S Westgarth, Deputy President; S Montgomery, Senior MemberCatchwords: Appeal – no error – reinstatement. |
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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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