| | | | | Issue 2 of 2014 July 2014
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| The NSW Civil and Administrative Tribunal (NCAT) Legal Bulletin is a regular publication highlighting relevant and interesting case law from across the various State jurisdictions, and other useful information and updates that are of significance to the Tribunal's work. For more information about the Tribunal visit the NCAT website. |
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| | | Cain v NSW Land and Housing Corporation [2014] NSWCA 28 26 February 2014 – Basten, Gleeson and Leeming JA
Summary: Appellant sought judicial review of a decision of the District Court that found that the Consumer, Trader and Tenancy Tribunal had no discretion to refuse an order sought by a landlord under the Residential Tenancies Act 2010 (NSW) s91. The lead judgement, delivered by Basten JA, set out the correct approach:
[14] The word “may”, “if used to confer a power, indicates that the power may be exercised or not, at discretion”: Interpretation Act 1987 (NSW), s 9(1). Nevertheless, such a power can, in particular circumstances, be coupled with a duty to exercise the power: Ward v Williams [1955] HCA 4; 92 CLR 496.
And at [25] His Honour continued:
The difference in effect between "may" and "must" (or "shall", being the term identified as imposing a duty in s 9(2) of the Interpretation Act) does not depend upon the existence of s 9 of the Interpretation Act; it is an element of ordinary English usage. Nor did the distinction escape the drafter of the Residential Tenancies Act, which uses the language of power and the language of obligation with, to all appearances, deliberate precision: cf the use of "must" in ss 84(3) and 85(3). There is nothing in the surrounding provisions which require a strained construction of s 91.
Link: Read the decision on the NSW Caselaw website
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| | | G v W [2014] NSWSC 108
25 February 2014 – Lindsay J
Summary: This is an appeal from the Guardianship Tribunal (as it was then), by way of the Guardianship Act 1987 (NSW) s 67, seeking a revocation of the appointment of an enduring guardian and for the substituted appointment of a guardian. The appeal was unsuccessful. His Honour deals with the changes made to the Guardianship Act 1987 and the introduction of the NCAT legislation at [3] and [9]. Accurately, His Honour sets out how, at [7], ‘the provisions of the Civil and Administrative Tribunal Act governing the business of the Guardianship Division of NCAT (schedule 6) are substantially similar to Part 6 of the Guardianship Act, now repealed.’
His Honour summarises the operation of the appeal process from the Tribunal (now Division) in the following manner, at [31].
...[a] section 67 appeal is not intended to serve as a second trial of an issue litigated in the Tribunal. It provides (together with the Court's general parens patriae jurisdiction) a means for supervision of work undertaken by the Guardianship Tribunal as a statutory tribunal entrusted with the primary task of deciding questions of guardianship: Re B (No 1) [2011] NSWSC 1075 at [58]-[61]; Re F (2013) NSWSC 54 at [5]-[10]; SAB v SEM [2013] NSWSC 253 at [3]-[10]; and Re H [2013] NSWSC 1384 at [19].
His Honour goes on to say in the next paragraph at [32]:
A formal identification in originating process of an error on a question of law, material to a decision of the Tribunal under challenge, is generally a necessary - but never a sufficient - condition for success on the hearing of an appeal under a provision such as s 67(1)(a). The substance is more important than the form. What is, generally, critically required is identification of a material error in the Tribunal's Reasons for Decision or its process of reaching that decision. An order might be erroneous in itself, but more often error lurks in underlying reasoning and processes. So it must be here. There is nothing exceptional in the terms in which the Tribunal expressed its decision(s).
Link: Read the decision on the NSW Caselaw website. |
| | | NSW Civil and Administrative Tribunal (NCAT)
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| Griffin v Ingram [2014] NSWCATAP 5
10 March 2014 – Wright J (President), Chesterman (Principal Member) and Smith (Senior Member)
Summary: This case is an important appeal concerning the transitional provisions of the NCAT legislation. In particular, Schedule 1 Clause 9. It was concluded by the Panel, at [32] that the appeal concerned an unexercised right to apply within the meaning of Sch 1, cl 9(1)(a).
Generally, regarding the transitional provisions, the Panel outlined at [20]:
In general terms these transitional provisions establish mechanisms which allow proceedings or orders to be heard, finalised, appealed or otherwise dealt with in circumstances where this could not otherwise occur because of the abolition of the various previously existing tribunals. Given their nature, transitional provisions also usually provide the only means of having the proceedings to which they apply heard, finalised, appealed or otherwise dealt with. Whether this latter comment applies to cl 9 is at the heart of the issues raised in this matter.
The reasons go on to consider the scope of what is an “internally appealable decision” per s 32(4).
Link: Read the decision on the NSW Caselaw website. |
| One Path Life Limited, Allianz Australia Life Insurance Limited and Suncorp Life and Superannuation Limited v NSW Registry of Births, Deaths and Marriages and Gerasimov [2014] NSWCATAP 3
14 February 2014 - Chesterman (Principal Member), Montgomery (Senior Member) and Antonios (General Member)
Summary: This matter is interesting for the restatement of the way to approach a case where concurrent proceedings are on foot in NCAT and another forum, in this case the District Court, and whether or not it is appropriate or necessary to grant a stay in those circumstances.
At [93] the Appeal Panel applies the relevant authority and states:
The decision in Complete Wardrobes provides sufficient authority for the proposition that, in appropriate circumstances, the ADT could stay or adjourn proceedings until a question on which their outcome was dependent had been authoritatively determined in proceedings already instituted in another forum. That decision did not, in our opinion, turn on the fact that the application for adjournment had the support of both parties.
Link: Read the decision on the NSW Caselaw website. |
| Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6
13 March 2014 – Wright J (President), Walker (Senior Member) and Bolt (General Member)
Summary: Another interesting issue that arises under the transitional provisions of the NCAT Act is what law governs the hearing. This appeal, against a decision of the ADT that set aside the appellant's decision to cancel the respondent's real estate licence among other disciplinary actions, is important in the way it sets out, albeit briefly, the operation of this part of the transitional provisions. The Appeal Panel explains at [5]:
By operation of cl 7(1) of Schedule 1 to the Act, this appeal is taken to have been duly commenced in NCAT and may be heard and determined by NCAT. For this purpose and under cl 7(3), NCAT has and may exercise all the functions which the ADT previously had and the applicable legislation is that which would have applied if the NCAT legislation had not been enacted. Consequently, the Administrative Decisions Tribunal Act 1997 (ADT Act) as in force at 31 December 2013 applies to this appeal. In particular, Part 1 of Ch 7 of the ADT Act which deals with internal appeals to the Appeal Panel of the ADT applies to this appeal even though it is being heard by the Appeal Panel of NCAT.
Link: Read the decision on the NSW Caselaw website. |
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