NCAT Legal Bulletin Issue 2 of 2025 | The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
This issue features case summaries of recent decisions from High Court of Australia, NSW Court of Appeal, Supreme Court of NSW, Victorian Court of Appeal and Supreme Court of South Australia Court of Appeal published in March and April 2025. | Australian Competition and Consumer Commission v J Hutchinson Pty Ltd & Anor; Australian Competition And Consumer Commission v Construction, Forestry And Maritime Employees Union & Anor [2025] HCA 10: The majority of the High Court dismissed appeals from a decision of the Full Court of the Federal Court, concerning ss 45E(3) and 45EA of the Competition and Consumer Act 2010 (Cth) regarding prohibitions of “understandings” for the purposes of hindering a person from acquiring goods or services, from another person from whom the person is under an obligation to acquire those goods or services. In this case, J Hutchinson Pty Ltd capitulated to the CFMEU, who threatened to commence industrial action should a particular subcontractor (who did not have an enterprise agreement with the CFMEU), be allowed on site. There was no evidence of an agreement, although the ACCC argued that there was an “understanding” because the subcontractor was terminated and industrial action did not commence. The majority of the High Court dismissed the appeal and held that a contravention of the sections requires proof of express or tacit communication between the parties of a commitment to do what has been demanded to be an “understanding”.
| Prothonotary of the Supreme Court of New South Wales v Yousif [2025] NSWCA 77: The Court of Appeal declared that Ms Alina Yousif is not a fit and proper person and removed her name from the roll. Ms Yousif was in a relationship with a former client, Mr Clinton Parkinson, who had connections with a motorcycle club. A police investigation into, and surveillance of, Mr Parkinson resulted in Ms Yousif’s arrest for her participation in crimes uncovered by police. She was convicted of three offences relating to knowingly taking part in the supply of methylamphetamine, participating in a criminal group and her attempt to induce a Service NSW employee to accept a fake driver’s licence as genuine.
| Rock v Henderson; Rock v Henderson (No 2) [2025] NSWCA 47: Mr Rock appealed two related cases from the District Court that arose after an acrimonious relationship breakdown with his former wife, Ms Henderson. The first case involved his claim for damages over a dismissed ADVO by Ms Henderson; the other, brought on behalf of his daughter, concerned alleged assault and battery. The hearing was conducted between June and August 2023, and orders were made in May 2024. However, the written reasons were delayed until August 2024. Mr Rock unsuccessfully appealed the decision on several grounds, including seeking orders that, as a consequence of the delay, the matter should be retried.
| Makowska v St George Community Housing Limited [2025] NSWCA 61: The applicant sought leave from the Court of Appeal to appeal a decision in the Supreme Court (which considered an appeal of an NCAT Appeal Panel decision) on a question of costs. It was contended that the respondent’s rejection of the applicant’s non-financial settlement proposal was in breach of a model litigant policy and, as such, the respondent had engaged in “barratry”. While the respondent was not in breach of that policy, it nevertheless did not apply. Leave to appeal was refused and further costs were ordered against the applicant.
| SP 95221 v Lane Cove Council [2025] NSWSC 172: The Supreme Court ordered, under s 69 of the Supreme Court Act 1970 (NSW), that NCAT accept for filing and determination (or transfer to the Supreme Court), the application filed by the plaintiff in December 2018 that was rejected by the Registrar on 21 January 2019, finding that the Registrar did not take into account the relevant considerations of the NCAT practice directions in rejecting the application. As a result, the plaintiff had been denied procedural fairness because there was no opportunity to advance the argument.
| Gaynor v Burns [2025] NSWSC 185: Mr Gaynor sought judicial review of two decisions made by the delegate of the Anti-Discrimination Board (NSW) (ADB) regarding a discrimination complaint involving a video posted in Queensland and viewed in NSW. It was submitted that the ADB lacked jurisdiction because the “public act” occurred outside NSW. The Supreme Court held that the establishment of jurisdiction under the Anti-Discrimination Act 1977 (NSW) (AD Act) is a matter for a body exercising judicial power, such as NCAT. It was noted that there was some force to the contention that the relevant location is where the material is viewed under s 49ZT of the AD Act, however there was no final determination on the issue.
| Khanna v Bunnings Group Limited [2025] NSWSC 199: The plaintiff sought judicial review of a decision made in the Consumer and Commercial Division of NCAT regarding Bunnings’ alleged misleading and deceptive conduct in relation to a weedkilling product that had damaged his lawn. The Supreme Court considered and dismissed the application on its merits. McHugh JA summarised the authorities concerning the assistance of unrepresented litigants, highlighting that it is not the duty of NCAT to conduct a case on behalf of an unrepresented litigant.
| Duplex Australia Pty Limited v Hathaway [2025] NSWSC 383: This decision concerns an application for security for costs against the plaintiff (Duplex) and Duplex’s application seeking a stay on enforcement of orders made in NCAT. The Court noted that, on the limited material, some of the arguments “have very little merit” however the Court could not conclude that the appeal was “untenable”. Concerns were raised, based on the conduct of Duplex, that there may be issues obtaining payment of future costs. The Court considered that Duplex’s explanations for previous non-compliance with NCAT’s orders were, “frankly, silly”. As matter of practicality, orders were made for costs security and a stay on enforcement of NCAT orders.
| KB v Burrun Dalai Corporation Inc (Costs) [2025] NSWSC 252: On 25 February 2025 the plaintiffs’ summons, which sought the exercise of the Supreme Court’s inherent parens patriae jurisdiction, was dismissed. This decision concerns the determination of costs in that matter. Despite the fact that the proceedings are in the protective jurisdiction of the Court, UCPR r 42.1 applies, noting that costs remain in the full discretion of the Court. In all the circumstances, the Court found that it was appropriate for the plaintiff to pay the first defendant’s costs.
| The Owners – Strata Plan 87003 v Raysons Constructions Pty Ltd (No 2) [2025] NSWSC 182: Following the Owners Corporation’s successful appeal of an NCAT Appeal Panel decision (and where the respondent, Raysons, was ordered to pay costs), Raysons seeks an order pursuant to s 6(1) of the Suitors’ Fund Act 1951 (NSW) that it be granted an indemnity certificate in respect of the costs of the appeal. The central argument in the appeal concerned a slip in NCAT’s dispositive first instance reasoning. The Appeal Panel was led into error in the acceptance of Raysons’ submissions on that point, which was sufficient to allow the appeal. The Court did not grant the certificate, noting that the costs on the appeal were incurred, at least in part, because of Rayson’s own conduct.
| Secretary to the Department of Health v Davis [2025] VSCA 40: The Victorian Court of Appeal dismissed an application from the Secretary to the Department of Health (the Department) for leave to appeal against a decision of the Victorian Civil and Administrative Tribunal (VCAT) ordering disclosure of a document that had been relied on by the Public Health Commander to issue COVID-19 Stay at Home Directions (No 6) and (No 7) in Victoria. The Department had otherwise successfully relied on exemptions under ss 28 and 30 of the Freedom of Information Act 1982 (VIC) (FOI Act) to prevent disclosure. The Court of Appeal noted that there was plainly a public interest in the disclosure of the documents, and in that context, the critical issue before VCAT was whether disclosure would be contrary to the public interest under s 30(1)(b) of the Victorian FOI Act. The Court of Appeal found that the grounds of appeal had no prospects for success and refused leave to appeal the decision of VCAT.
| Paramedicine Board of Australia v Jackson [2025] SASCA 25: The SA Court of Appeal addressed the scope of the statutory duty of a National Board to refer “a matter about a registered health practitioner” to the South Australian Civil and Administrative Tribunal (SACAT), including the corresponding jurisdiction of SACAT under ss 193 and 196 of Sch 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (the SA National Law). The preliminary question of law concerned whether SACAT had jurisdiction to consider and determine a referral regarding conduct that occurred prior to the registration of the practitioner. The Court held that while the practitioner does not need to be registered at the time of the referral, the statute clearly outlines that the relevant conduct must have occurred while the practitioner was registered for SACAT to have jurisdiction.
| | | Australian Competition and Consumer Commission v J Hutchinson Pty Ltd & Anor; Australian Competition And Consumer Commission v Construction, Forestry And Maritime Employees Union & Anor [2025] HCA 10 2 April 2025 - Gageler CJ, Edelman, Steward, Gleeson, Beech-Jones JJ
In sum: The High Court dismissed the Australian Competition and Consumer Commission’s (ACCC) appeal from a decision of the Full Court of the Federal Court of Australia concerning an issue as to the nature of an "understanding" as that term is used in Pt IV of the Competition and Consumer Act 2010 (Cth) (the Act), including in ss 45E(3) and 45EA regarding prohibitions of understandings for the purposes of hindering the person from acquiring goods or services, from another person from whom the person is under an obligation to acquire those goods or services. In this case, J Hutchinson Pty Ltd had entered into subcontracting agreement with a subcontractor who did not have an enterprise agreement with the CFMEU. Following threatened industrial at the site, the subcontractor contract was terminated (but without any evidence of assent from J Hutchinson to the CFMEU that the contract would be terminated).
The Full Federal Court had allowed appeals by Hutchinson and the CFMEU, holding that there was no relevant arrangement or understanding between Hutchinson and the CFMEU. The ACCC then appealed to the High Court on the basis that there is an "understanding" for the purposes of the Act, if one person makes a threat and demand to a second person, and the second person capitulates to that threat and acts as demanded. The majority of the High Court rejected the ACCC's contention on the basis that arrival at an "understanding" for the purposes of s 45E(3) requires proof of express or tacit communication between the parties of a commitment to do what has been demanded. The appeal was dismissed.
Catchwords:
Competition and consumer law – Competition and Consumer Act 2010 (Cth) – Restrictive trade practices – Prohibition of contracts, arrangements, or understandings affecting the supply or acquisition of goods – Where head contractor succumbed to threat from union and terminated subcontract without any verbal (or written) assent being communicated to union – Whether sufficient to give rise to "understanding" in context of ss 45E(3) and 45EA of Competition and Consumer Act that head contractor succumbed to union's threat of industrial action by doing what was demanded under sanction of that threat.
Words and phrases – "acceptance", "acquisition situation", "arrangement", "arrangement or understanding", "arriving at an understanding", "assent", "communication", "communication of acceptance", "communication of assent", "consensus", "contract, arrangement or understanding", "express or tacit communication", "giving effect to an understanding", "implied promise", "implied request", "inducement", "making a contract", "making an arrangement", "manifestations of mutual consent", "meeting of minds", "offer", "performance", "proscribed purpose", "reciprocity", "secondary boycott", "threat", "threat of industrial action", "unilateral contracts".
Competition and Consumer Act 2010 (Cth) – ss 45E, 45EA, 76.
Held (dismissing the appeal with costs):
(i) Link to the High Court’s case summary is here. | | Court of Appeal of New South Wales | Prothonotary of the Supreme Court of New South Wales v Yousif [2025] NSWCA 77 23 April 2025 - Ward ACJ, Ball JA, Basten AJA
In sum: Ms Alina Yousif was admitted as a solicitor in February 2016 and in late 2016 began working at the Aboriginal Legal Service in Griffith. Around that time, Ms Yousif started a relationship with her former client, Mr Clinton Parkinson, who had connections with the Bandidos Motorcycle Club and who had just recently been released from custody for the supply of methylamphetamine in a commercial quantity and two firearm related offences. By August 2017, a police investigation into Mr Parkinson had commenced, and for the purpose of that investigation, lawful surveillance was conducted of Mr Parkinson. That surveillance uncovered that Ms Yousif was also participating in criminal activity. She was charged, and ultimately convicted, of offences relating to taking part in the supply of methylamphetamine, participating in a criminal group and her attempt to induce a Service NSW employee to accept a fake Indian driver’s licence as genuine, and to have that licence converted to an Australian Licence. These proceedings concerned an application for a declaration that Ms Yousif is not a fit and proper person to remain on the Roll of Australian Lawyers and an order that her name be removed from that roll.
Catchwords: LEGAL PRACTITIONERS — Disciplinary proceedings against solicitor — Whether Respondent a fit and proper person to remain on the Roll of Australian Lawyers — Where Respondent convicted of participating in a criminal group, using a false document with the intention of inducing a person to accept as genuine and then to influence that person to exercise a public duty, and knowingly taking part in the supply of a prohibited drug — Where Respondent served sentence by way of intensive correction order (ICO) — Where ICO has expired — Where Respondent opposes relief sought — Whether Respondent likely to be unfit for the indefinite future — Court satisfied of unfitness to practise for the indefinite future.
Held (Declaring that Alina Yousif is not a fit and proper person to remain on the Roll of Australian Lawyers and order that she be removed from the roll):
(i) The Court of Appeal held that Ms Yousif had committed serious criminal offences, two of which went to her honesty. She gave false evidence both at her trial and in these proceedings concerning her involvement in the offences. Accordingly, the Court was satisfied that she was “likely to be unfit to practise for the indefinite future”.
(ii) Link to the Court of Appeal’s case summary is here. | Rock v Henderson; Rock v Henderson (No 2) [2025] NSWCA 47 28 March 2025 - Kirk JA; Adamson JA; Ball JA
In sum: This matter involved the appeal of two related matters arising out of the acrimonious relationship breakdown between the parties and their daughter. In the first proceedings, Mr Rock sought damages arising out of Ms Henderson’s application for an Apprehended Domestic Violence Order (ADVO) that had been struck out in the District Court. The second proceedings were brought by the daughter of Mr Rock and Ms Henderson, through her tutor Mr Rock, regarding damages for incidents of assault and battery. The proceedings were heard over eight days between June and August 2023, and orders were made on 9 May 2024 for a verdict in favour of the defendant with reasons to follow, however those reasons were not provided until approximately three months later on 13 August 2024. Mr Rock appealed, and the daughter sought leave to appeal. One of the issues on appeal was the delay in receiving the reasons for decision.
Catchwords: COURTS AND JUDGES – significant delay in providing reasons for judgment by primary judge – where primary judge delivered written reasons three months after making final orders in proceedings – whether delay in providing reasons amounts to error – whether a retrial is required as a consequence of the delay – whether UCPR r 36.2 applies where reasons for judgment are not yet reduced to writing – whether a common law duty compels District Court judges to give written reasons for judgment contemporaneously with judgment or very soon thereafter – where common law rule in Palmer v Clarke (1989) 19 NSWLR 158 has evolved – no such common law duty – retrial not required.
TORTS – malicious prosecution – whether the tort is available in respect of the procuring of an Apprehended Domestic Violence Order (ADVO) – where ‘prosecutor’ for the purposes of the tort is the complainant – where provisional ADVO was issued by a police officer – where interim ADVO was consented to by respondent on a no admissions basis – where application for final ADVO was rejected by Magistrate – tort does not apply
TORTS – trespass – where appellant claimed to suffer PTSD resulting from the trespass – where the appellant claimed the trespass damaged his house – where primary judge found trespass occurred – where appellant failed to establish that he suffered damage as a consequence of the trespass – where primary judge declined to award damages for trespass – nominal damages payable
APPEALS – leave to appeal – where six instances of alleged battery occurred – where primary judge implicitly rejected the alleged battery – where damages not assessed by primary judge – whether failure to assess damages constituted error – where damages would likely be nominal and fall below $100,000 – whether leave should be granted – leave refused
Held (allowing the appeal in part and refusing the appeal with regard the judgement delay issue):
(i) With respect to the delay in giving reasons, the Court of Appeal noted that whilst there may have once been a common law duty of a court in civil cases to deliver reasons at or immediately after the time it pronounces judgment (Palmer v Clarke (1989) 19 NSWLR 158), the common law is no longer that strict, and that duty has been substantially modified in civil cases in the Supreme Court, District Court and Local Court. Their Honours noted that generally, a court should not make final orders without giving reasons. However, if it is necessary to postpone giving reasons (for example, because of urgency) reasons should be given as soon as reasonably practicable after a judgment is delivered. Whether a court has failed to comply with that obligation will depend on all relevant circumstances, including the nature of the issue to be decided, the length of the delay and the reasons for any delay: [55], [60].
(ii) Link to the Court of Appeal’s case summary is here. | Makowska v St George Community Housing Limited [2025] NSWCA 61 7 April 2025 - Stern JA; McHugh JA
In sum: The applicant made an unsuccessful application to NCAT for a reduction in rent on the basis that some areas of common property had deteriorated. The Appeal Panel then dismissed her appeal, and the applicant sought leave to appeal to the Supreme Court, where her application was dismissed with costs. This decision concerns an application for leave to appeal, limited to the question of costs ordered in the Supreme Court proceedings. It was argued that the respondent had rejected a non-financial settlement proposal, which the applicant alleged was in breach of the Model Litigant Policy for Civil Litigation and, as a result, the respondent engaged in “barratry” causing unnecessary litigation and expense. That submission was not accepted. Leave to appeal was refused with further costs ordered against the applicant.
Catchwords: COSTS – Party/Party – General rule that costs follow the event – Relevance of Model Litigant Policy for Civil Litigation – Where offer of compromise rejected – Where no better outcome achieved
Held (Dismissing the summons seeking leave to appeal and ordering costs against the applicant):
(i) The Court of Appeal outlined a number of difficulties with the contention that the Model Litigant Policy (issued June 2016 and reviewed July 2024) applied to the respondent, including that the respondent is an independent entity and the policy only applies to the State or its agencies. Had the policy applied, it was found that there was no basis to suggest a breach of that policy and that “[t]he respondent’s response to the applicant’s offer was entirely consistent with the obligation under [3.1] of that policy to “act with complete propriety, fairly and in accordance with the highest professional standards”.”
(ii) Their Honours noted that, while the applicant feels a genuine responsibility to hold the respondent to account, that does not weigh in favour of the grant of leave to appeal. | | Supreme Court of New South Wales | SP 95221 v Lane Cove Council [2025] NSWSC 172 10 March 2025 - Slattery J
In sum: The Supreme Court ordered, pursuant to s 69 of the Supreme Court Act 1970 (NSW), that NCAT accept for filing and determination (or transfer to the Supreme Court), the application filed by the plaintiff in December 2018, that was rejected by the Registrar on 21 January 2019, finding that the Registrar did not take into account the relevant considerations of the NCAT procedural directions in rejecting the application. As a result, the plaintiff had been denied procedural fairness because there was no opportunity to advance an argument.
Facts: Lane Cove Council (the Council) originally owned a car park that was developed in 2015 to add a residential building on top. An interim occupation certificate was issued by the Council on 23 December 2016 with a final occupational certificate issued on 11 April 2017. The residential building had both major and non-major defects, and the plaintiff filed an application with NCAT for relief under the Home Building Act 1987 (NSW) (HB Act) on 22 December 2018 (the 2018 Application). NCAT sent a standard letter on 24 December 2018 to the applicant, which provided information concerning the requirement in s 48J of the HB Act for NSW Fair Trading to have investigated any building dispute before the Tribunal, otherwise NCAT must not accept an application for determination. The plaintiff was followed up for the documents, stating “[i]f you do not provide the documentary evidence by 18-JAN-2019 the Registrar must not accept your application, and your file will be closed”. On 21 January, the Registrar had not received any response or evidence and closed the file pursuant to s 48J.
On 22 January 2019, the plaintiff’s representative emailed the Registrar, noting that NCAT Procedural Direction 5 directs the Registrar to accept claims without investigation when the time for lodging the claim is within 3 months, as in this case. Nevertheless, the 2018 Application was finalised by NCAT due to the absence of an investigation. Further correspondence from the plaintiff’s representative about the Procedural Direction did not change the Registrar’s position. The Registrar’s refusal to accept the 2018 Application prevented the plaintiff from pursuing proceedings against the Council and against the Developer in NCAT under the HB Act. Negotiations between the parties continued, however in November 2022, the plaintiff commenced proceedings for relief in the Supreme Court concerning the non-major defects (which would otherwise have been out of time without acceptance of the 2018 NCAT application), and for major defects, which was within time.
Held (ordering that NCAT accept the 2018 Application for filing and determination):
(i) NCAT Procedural Direction 5 provides a direction from the President to “accept building claims… even if the Principal Registrar is not satisfied that the subject matter of the claim has been investigated… (d) claims where the time for lodging a claim is due to expire within 3 months”. The Supreme Court held that the exemption should have been open to the plaintiff under the procedural direction and accepted that the reasons for the delay were owed to ongoing negotiations, the pandemic and the builder going into administration. At [129] Slattery J found that the Registrar’s lack of reference to Procedural Direction 5 indicates that the Registrar’s decision did not take into account those relevant considerations. The Tribunal erred in law in applying an incorrect test and the plaintiff was denied procedural fairness by being denied the opportunity to advance an argument based on the Procedural Direction 5.
(ii) Slattery J also considered an alternative basis for the decision, being that when the Registrar considered the rejection, the date differed from the lodgement date and the final occupation certificate was also due to expire within 3 months of the Registrar’s decision.
(iii) The Council was ordered to pay the costs of the plaintiff. | Gaynor v Burns [2025] NSWSC 185 12 March 2025 - N Adams J
In sum: Mr Gaynor sought judicial review of two decisions made by the delegate of the Anti-Discrimination Board (NSW) (ADB): accepting a complaint of homosexual vilification under s 89B of the Anti-Discrimination Act 1977 (NSW) (AD Act) and referring that matter to NCAT under s 93C. It was submitted that the ADB lacked jurisdiction because the “public act” occurred outside NSW. The Supreme Court held that the President of the ADB is to conduct an initial sifting process, while the establishment of jurisdiction under the AD Act is a matter for a body exercising judicial power. Her Honour noted that there was some force to the contention that the relevant location under s 49ZT of the AD Act is where the material is viewed, but the Court did not make a determination on this issue.
Facts: This case is one of a number of disputes between Mr Gaynor and Mr Burns. Mr Burns filed a complaint with the ADB in relation to a YouTube video posted by Mr Gaynor, which it was alleged constituted homosexual vilification under s 49ZT of the AD Act. The complaint was accepted by the ADB and referred to NCAT. Mr Gaynor resides in Queensland (where the video was uploaded) and Mr Burns resides in NSW.
Held (dismissing the summons and ordering that Mr Gaynor to pay the costs of the fourth defendant):
(i) Mr Gaynor’s challenge to the validity of the two decisions centres on establishing that two facts: (1) where Mr Burns resides and (2) where the public act occurred within the meaning of s 49ZT of the AD Act, are jurisdictional in nature. The Court noted at [85] that Mr Gaynor must establish that these facts are prerequisites to be satisfied before the discretionary power to accept a complaint under s 89B of the AD Act can be exercised. Mr Gaynor did not establish his contention, and the Court held that the ADB’s preliminary decisions to accept and refer complaints were administrative in nature, not judicial.
(ii) The Supreme Court found that, at the time of determining whether to accept a complaint under s 89B, the President of the ADB’s function is to conduct “an initial sifting process”. It is not the President’s function to determine whether there was a public act in NSW as a precondition to jurisdiction, when referring a complaint under s 93C. It is a matter for the body exercising judicial power, such as NCAT, to determine whether there was a public act in NSW, and whether that is the necessary criterion to establish jurisdiction under the AD Act.”
(iii) Adams J declined to determine the extraterritoriality issue as part of this decision, however her Honour noted that there may be some force to the argument that the relevant location of the public act under s 49ZT of the AD Act is where the material is viewed, however no final determinations were made on the issue. In seeking a determination on the extraterritoriality issue, Mr Burns had submitted that it was futile to refer the matter to NCAT in circumstances where it was common ground that NCAT does not have jurisdiction, however Mr Burns accepted that a rejection from NCAT was required before proceeding to the Local Court to determine the matter.
(iv) The Court also noted that issues were raised concerning the adequacy of reasons and a difference between the initial reasons and the supplementary reasons. These arguments were not considered to go to the grounds in the summons alleging jurisdictional error. | Khanna v Bunnings Group Limited [2025] NSWSC 199 13 March 2025 - McHugh JA
In sum: The plaintiff sought judicial review of a decision made in the Consumer and Commercial Division of NCAT regarding a claim of misleading and deceptive conduct of Bunnings in relation to weedkilling product that damaged the lawn of the property he was leasing. The Supreme Court considered and dismissed the application on its merits (noting that the application was fully argued and otherwise this “would have been a strong case for exercising the power in s 34(1)(c)” of the NCAT Act. Regarding the role of the Tribunal to assist self-represented litigants, McHugh JA noted that it is not the duty of a trial judge to conduct a case on behalf of an unrepresented litigant.
Facts: On 12 August 2023, the plaintiff purchased a weedkiller from Bunnings, allegedly after being assured by Bunnings’ staff that it would not harm any grass. When it was applied however, the weedkilling product damaged the lawn of the property the plaintiff was leasing. In NCAT, the plaintiff alleged Bunnings had engaged in misleading conduct under s 18 of the Australian Consumer Law (ACL), claiming the staff and packaging were misleading. Bunnings argued the product was properly labelled as a targeted weedkiller, and NCAT accepted this, similarly finding it unlikely that staff gave contrary advice to the label. The claim was dismissed, along with additional claims of consumer guarantees, fraud, and emotional distress. The plaintiff did not appeal to NCAT’s Appeal Panel and instead sought judicial review in the Supreme Court.
Held (dismissing the summons seeking judicial review of NCAT’s decision):
(i) The plaintiff contended that he was denied procedural fairness because NCAT relied on documents from Bunnings, which he alleged were not served on him. The Supreme Court found that the Tribunal Member had taken some care to identify the material the parties were relying on and “most significantly”, the Member asked the plaintiff directly about the documents Bunnings had supplied. The Supreme Court noted that in the hearing, the plaintiff was told of the documents and acted as if he knew of the documents, thus there was no denial of procedural fairness on this ground.
(ii) The Supreme Court addressed each of the plaintiff’s various further grounds, including a ground that NCAT failed to provide guidance to a self-represented litigant, contending that NCAT should have taken it upon itself to require Bunnings to produce certain material. His Honour held that this misconceives the role of the Tribunal, noting that it is not the function or duty of a trial judge to conduct a case on behalf of an unrepresented litigant and cautioned against “conferring an unfair advantage on unrepresented litigants by reason of excessive curial assistance”. | Duplex Australia Pty Limited v Hathaway [2025] NSWSC 383 10 April 2025 - Hamill J (as Duty Judge)
In sum: This decision concerns an application for security for costs against the plaintiff (Duplex) and Duplex’s application seeking a stay on enforcement of orders made in NCAT to pay the respondents damages and their costs for the claimed defective home building works. The Court noted that, on the limited material, some of the arguments in the appeal “have very little merit” but could not conclude that the appeal was “untenable”. There were concerns raised, based on the conduct of Duplex, that there may be issues obtaining payment of future costs and that some of the explanations for not paying the amounts to date were “frankly, silly”. By way of compromise, security for costs was ordered together with a stay on the enforcement of the NCAT proceedings.
Facts: The plaintiff (Duplex) was unsuccessful in defending a claim brought in the Consumer and Commercial Division of NCAT, and on appeal to the Appeal Panel, in relation to defective home building works carried out on the now respondents’ property. Finding in favour of the respondents, NCAT ordered Duplex to pay $92,301 in damages together with costs, which had not been paid. Duplex commenced proceedings in the Supreme Court to appeal the NCAT decision.
Held (ordering security for costs on the appeal and a stay of enforcement proceedings):
(i) Regarding r 42.21(1A)(b) of the Uniform Civil Procedure Rules 2005 (NSW), Hamill J had a “strong suspicion the appeal to this Court is an attempt to avoid the judgment of the NCAT Appeal Panel and/or to delay payment of the money ordered by NCAT to be paid to the defendants” (at [10]). The amount sought in security for costs was deemed reasonable, and a slightly less sum of $50,000 was ordered to be provided in security for costs.
(ii) Although the Court initially saw no reason to stay enforcement of the NCAT orders, it agreed, in the course of discussions with the parties’ lawyers at the hearing, to take a pragmatic and realistic view that Duplex was not going to pay the order in any event. In a compromise, security for costs was ordered and in return, the enforcement of the NCAT orders were stayed. If Duplex failed to provide the security, the Supreme Court proceedings will be stayed. | KB v Burrun Dalai Corporation Inc (Costs) [2025] NSWSC 252 25 March 2025 - Hammerschlag CJ in Eq
In sum: On 25 February 2025, the Supreme Court delivered the principal judgement in this matter, dismissing the Summons. This application concerns the determination of costs, and despite the fact that these are proceedings in the protective jurisdiction of the Court, UCPR r 42.1 applies, noting that costs remain in the full discretion of the Court. In all the circumstances, the Court found that it was appropriate for the plaintiff to pay the first defendant’s costs.
Held (plaintiffs are to be the first defendant’s costs as agreed or assessed):
(i) The plaintiffs were entirely unsuccessful in their application and nevertheless claimed that the defendants should pay their costs. His Honour noted that to grant the relief sought had posed an unacceptable risk and there was no conduct of the defendants that would warrant any departure from the rule. | The Owners – Strata Plan 87003 v Raysons Constructions Pty Ltd (No 2) [2025] NSWSC 182 11 March 2025 - Leeming JA
In sum: Following a successful appeal of an NCAT decision where the respondent (Raysons) was ordered to pay costs, Raysons seeks an order pursuant to s 6(1) of the Suitors’ Fund Act 1951 (NSW) that it be granted an indemnity certificate in respect of the costs of these appeal submissions (a certificate gives a qualified entitlement to be paid an amount of money from the Suitors’ Fund). In the appeal, the Supreme Court was not able to determine matters that were undetermined before an Appeal Panel and so, for part of the appeal, orders were made for those parts to be redetermined by the Appeal Panel. Whether or not all or most of the orders will be confirmed or set aside remains to be determined. Otherwise, the central argument on the appeal concerned a slip in the NCAT’s dispositive first instance reasoning at [35], that Raysons had argued to the Appeal Panel (and was accepted), should be read literally such that the matter would be out of time, and which the Supreme Court determined that it should not. It was noted that the acceptance of Raysons’ submission led the Appeal Panel into error, and it is far from the case where costs were incurred by Raysons not through its own conduct.
Held (dismissing the motion):
(i) The Supreme Court stated held that “even though there were other errors of law in the Appeal Panel’s decision, and even though Raysons may not have contributed to those other errors, Raysons’ role in relation to the dispositive error in the construction of [35] is sufficient to deny Raysons’ application”. It was determined not to be appropriate to grant an indemnity certificate for costs incurred as a direct result of Raysons’ own erroneous submission to the Appeal Panel which it sought to defend in the appeal to the Supreme Court. | | | Secretary to the Department of Health v Davis [2025] VSCA 40 20 March 2025 - Niall CJ and Emerton P and Kaye JA
In sum: The Victorian Court of Appeal dismissed an application from the Secretary to the Department of Health (the Department) for leave to appeal against a decision of the Victorian Civil and Administrative Tribunal (VCAT) that ordered the disclosure of “document 34” relied on by the Public Health Commander to issue COVID-19 Stay at Home Directions (No 6) and (No 7). The Department had otherwise successfully relied on exemptions under ss 28 and 30 of the Freedom of Information Act 1982 (Vic) (Victorian FOI Act). The Court of Appeal noted that there was plainly a public interest in the disclosure of the documents, and in that context, the critical issue before VCAT was whether disclosure would be contrary to the public interest under s 30(1)(b) of the Victorian FOI Act. The Court of Appeal found that the grounds of appeal had no prospects for success and refused leave to appeal the decision of VCAT.
Facts: In the first instance proceedings, VCAT ordered the disclosure of “document 34” relied on by the Public Health Commander to issue COVID-19 Stay at Home Directions (No 6) and (No 7) under the Victorian FOI Act. The Department had otherwise successfully relied on exemptions under ss 28 and 30 of the Victorian FOI Act to not disclose other “working documents”. VCAT distinguished “document 34” from the other documents because it was not a working document within the meaning of s 30 of the Victorian FOI Act. The disclosure of “document 34” was not found to be contrary to the public interest, and VCAT determined that the Department had not discharged its onus on the balance of probabilities that the document was exempt.
Held (the Department’s application for leave to appeal was refused):
(i) The majority of the Department’s appeal grounds concerned the Tribunal’s reasoning regarding whether disclosure was contrary to public interest, including that VCAT erred in making the findings it did and that the Department was denied procedural fairness, including the finding that “the process of clarifying information, prior to reaching a decision, is not one that departmental officers would be reluctant to engage in, if there was a possibility of disclosure”. Each of the grounds argued by the Department did not succeed. The Court of Appeal held that the findings made were open to VCAT and that the Department was not denied procedural fairness. The application was dismissed. | Paramedicine Board of Australia v Jackson; Physiotherapy Board of Australia v Smith [2025] SASCA 25 20 March 2025 - Livesey P, S Doyle and Bleby JJA
In sum: This is an appeal of two matters concerning the scope of the statutory duty of a National Board to refer “a matter about a registered health practitioner” to the South Australian Civil and Administrative Tribunal (SACAT), and the corresponding jurisdiction of SACAT to hear and determine a matter referred to it, under ss 193 and 196 of Sch 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (the SA National Law). The preliminary questions of law concerned whether SACAT had jurisdiction to consider and determine the respondent’s conduct that occurred prior to the registration of the practitioners.
Facts: The proceedings regarding Mr Jackson, a paramedic, concerned his failure to advise the Board that, between the application for registration and his application being granted, he had been suspended by his employer and charged with criminal offences. On the Tribunal’s reasoning, there were two limitations to its jurisdiction in respect of the allegation against Mr Jackson. The first was that s 193 required that the person the subject of the referral be a registered health practitioner at the time of the referral (Mr Jackson’s registration had lapsed by that time). The second is that s 193 only permits the Board to refer a matter to SACAT where conduct is said to constitute professional misconduct that occurred while the person was a registered health practitioner (whereas Mr Jackson’s failure to disclose occurred prior to his registration). The Tribunal found that s 193 confers jurisdiction only while the person is registered and SACAT may only consider matters that occurred while the respondent is registered.
In the second matter on appeal by a Board, several allegations of professional misconduct were made against Mr Smith, a physiotherapist, including conduct that occurred prior to his registration. At the time of the hearing and determination of the referral, Mr Smith’s registration had lapsed.
Held (allowing the appeal and substituting the answer to the question of law and confirming practitioners may only be referred to SACAT concerning conduct occurring while registered):
(i) The Board challenged the first finding of the Tribunal in the Jackson proceedings with respect to the Board’s lack of jurisdiction to refer matters to SACAT where practitioners are no longer registered. The Court of Appeal considered that s 196(4), which provides for the disqualification of a person applying for registration where a person does not currently hold registration, is a “reasonably powerful” contextual indication of a broader intention that the referral is not confined to practitioners who are registered at the time of referral. The SA Court of Appeal found that, consistent with the protective purpose of the SA National Law, the referral and determination of matters in SACAT is not confined to matters relating only to practitioners who are registered at the time of the referral.
(ii) The Board also challenged SACAT’s finding in the Jackson proceedings that the Tribunal’s jurisdiction is only enlivened where a referral is in relation to conduct that occurred while the practitioner was registered. The Court of Appeal found that the registration and renewal process under the SA National Law provides an appropriate mechanism for addressing concerns about conduct occurring while the practitioner is not registered, including, for example, that a person is not a fit and proper person to practise the profession (see s 55(1)(b)). Their Honours held that the primary judge was correct to construe s 193(1)(a)(i) as confined to a referral power in relation to conduct of the practitioner while registered.
(iii) In relation to Mr Smith, the Court of Appeal held that the jurisdiction to hear and determine the referral is not affected if the practitioner’s registration had lapsed at the time of the determination of the referral. However, by reason of s 193(1)(a)(i) of the SA National Law, only conduct occurring after Mr Smith was registered may be the subject of a referral. | | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Legal Bulletin should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication. |
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