NCAT Legal Bulletin Issue 2 of 2026 | 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 the High Court of Australia, the Court of Appeal of New South Wales, the Supreme Court of New South Wales and the Supreme Court of Victoria published in March and April 2026. | | SunshineLoans Pty Ltd (ACN 092 821 960) v. Australian Securities and Investments Commission (in [2026] HCA 8): ASIC appealed a decision from the Full Federal Court of Australia which remitted the next stage of proceedings to the trial judge on the basis that no reasonable apprehension of bias arose. The High Court unanimously dismissed the appeal and agreed that the trial judge’s findings in the first stage of proceedings did not reveal any animosity towards nor prejudgment of the appellant or one of its directors and as such, the second stage should also be heard by the same trial judge.
| Hua Nan Trading Pty Ltd t/as Huanan Trading v The Owners Strata Plan No. 32369 (in [2026] NSWCA 47): The NSW Court of Appeal held that the applicant had filed its application out of time. The Court rejected the applicant’s argument that its second application was not filed out of time because there was continuity between first and second applications. Instead, the Court held that there was no such continuity, particularly given the first application was closed by NCAT and they had separate file numbers. The issue of filing time was the only one agitated on appeal and was a finding of fact or possibly a mixed finding of fact and law, meaning leave to appeal could not be obtained in respect to this issue. The appeal was dismissed.
| Veterinary Practitioners Board of New South Wales v Kovac (in [2026] NSWCA 60): The NSW Court of Appeal allowed an appeal from NCAT’s Occupational Division, where NCAT held that non-compliance with s 41 of the Veterinary Practice Act 2003 (NSW) (VP Act) deprived NCAT of jurisdiction to determine certain complaints in a disciplinary application brought to it by the Veterinary Practitioners Board. The Court instead held that, while NCAT correctly determined that it had jurisdiction to consider the Board’s compliance with the VP Act, it incorrectly concluded that non-compliance with s 41 of that Act deprived NCAT of jurisdiction to determine certain complaints, emphasising that the VP Act told against strict compliance being necessary.
| | Culleton v Tonks (in [2026] NSWSC 174): The Supreme Court of NSW concluded that the plaintiff’s application for judicial review failed on all grounds. In the first instance NCAT proceedings, the plaintiff was ordered to pay the defendants a sum of $61,993.53. An Appeal Panel dismissed the plaintiff’s appeal despite the interim stay which was granted.
| Megan Thomson v City West Housing Pty Ltd (in [2026] NSWSC 275): The Supreme Court of NSW granted a stay of a decision of NCAT’s Consumer and Commercial Division (CCD) and to the extent necessary, of NCAT’s Appeal Panel. NCAT made a termination order and an order for the possession of property. The Panel refused to grant a stay of these orders. The Court held that a real issue of procedural fairness arose in NCAT’s hearing where Ms Thomson (the plaintiff) had not received any documents initiating proceedings due to being in custody. As such, a stay of NCAT’s orders was necessary until the determination of the appeal.
| Darjilla Pty Ltd trading as Corowa Supa IGA v Annamneni (in [2026] NSWSC 402): The Supreme Court of NSW refused an application for judicial review, finding that NCAT had not made a jurisdictional error when considering s 31 of the Liquor Act 2007 (NSW) (the Liquor Act). The Court agreed with NCAT that because the relevant premises was a “general store”, and not a “take-away food store”, the restrictions under s 31(2) did not apply, and NCAT provided sufficient reasoning for this conclusion.
| J & E Miller (Builder) Pty Ltd v Awad (in [2026] NSWSC 411): The Supreme Court of NSW refused to grant leave to appeal from NCAT’s Appeal Panel on all five grounds. The applicant was a builder who was party to a contract with the respondent (the homeowner) and was found, by NCAT at first instance to be in breach of Home Building Act 1989 (NSW) (the HBA). An Appeal Panel found NCAT had not made an appealable error.
| Medical Board of Australia v Gibbs (in [2026] VSC 158): The Supreme Court of Victoria dismissed an appeal, concluding that the Victorian Civil and Administrative Tribunal (‘VCAT’) did not err in law or misapply the privilege against exposure to penalties when vacating order 3 on the basis respondent (Dr Gibbs) was entitled to rely on penalty privilege in the proceedings before VCAT.
| | | San Bao Pty Ltd v Minister for Immigration and Citizenship [2026] HCA 6 11 March 2026 - Edelman, Steward, Gleeson JJ
In sum: The High Court unanimously dismissed the plaintiff company’s application for a constitutional or other writ to quash the decision of the defendant’s delegate refusing the Company's application for nomination of a Subclass 482 (Skills in Demand) visa, and sought to require the Minister to determine that application according to law. The plaintiff company lodged an online application for standard business sponsorship with the Department of Home Affairs and included an organisational chart. The plaintiff company lodged a separate application for a Subclass 482 (Skills in Demand) visa for Ms Haiming Du. The Minister’s delegate approved the standard business sponsor application but refused the Subclass 482 application, noting that the plaintiff company had not provided sufficient evidence to satisfy the delegate that the position associated with the nominated occupation was “genuine” under reg 2.72(10)(a) of the Migration Regulations 1994 (Cth).
The two asserted jurisdictional errors were: first, that the delegate constructively failed to exercise jurisdiction; and second, that the delegate's decision was legally unreasonable. Both were said to flow from the delegate's decision purportedly resting on the mistaken premise that no organisational chart was provided.
Catchwords: Administrative law – Judicial review – Jurisdictional error – Where application for approval of nomination of individual for Subclass 482 (Skills in Demand) visa refused – Where refusal was based, amongst other things, on consideration of documents and information provided by plaintiff – Where delegate not satisfied that position associated with nominated occupation is genuine – Where application for constitutional or other writ is brought because no other tribunal or court has jurisdiction, respectively, to review or judicially review decision – Whether delegate of Minister constructively failed to exercise jurisdiction by refusing nomination application – Whether delegate's decision was legally unreasonable.
Words and phrases – "abuse of process", "business sponsor", "constitutional writs", "constructive failure to exercise jurisdiction", "delay", "jurisdictional error", "legally unreasonable", "nomination", "organisational chart", "original jurisdiction", "Skills in Demand", "unavailability of the usual court process".
Administrative Review Tribunal Act 2024 (Cth), ss 18(1), 295(1).
Administrative Review Tribunal Rules 2024 (Cth), r 6(3).
High Court Rules 2004 (Cth), r 25.02.
Migration Act 1958 (Cth), ss 140E, 140GB, 338(1), 338(9), 476, 476B.
Migration Regulations 1994 (Cth), regs 2.58(1)(a), 2.59, 4.02(4)(d), Div 2.17.
Held (refusing the appeal):
(i) The plaintiff’s claim regarding the delegate’s failure to consider an organisational chart in its reasons for decision was not, by itself, an exceptional reason for invoking the original jurisdiction of the High Court to correct an asserted jurisdictional error.
(ii) Nevertheless, in dealing with the merits of the plaintiff’s application, the High Court held that there was no sufficient basis to infer that the delegate had mistakenly thought that no organisational chart had been provided.
(iii) The plaintiff had taken the delegate’s reasons out of context when submitting that the application was refused “on the basis of 'no evidence' of an organisation[al] chart”. Instead, when properly understood in their context, the delegate’s reasons were concerned with the absence of sufficient evidence, including from an organisational chart, that explained the need for an additional cook by detailing the relationship the additional cook would have within the existing structure, for example, how duties would be split.
(iv) The plaintiff’s application should be dismissed with costs.
(v) Link to the High Court’s case summary is here. | SunshineLoans Pty Ltd (ACN 092 821 960) v. Australian Securities and Investments Commission [2026] HCA 8 18 March 2026 - Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
In sum: The High Court unanimously dismissed an appeal from the Full Federal Court of Australia. The respondent (ASIC) brought proceedings against the appellant (SunshineLoans) in the Federal Court for contraventions of the National Consumer Credit Protection Act 2019 (Cth). The proceedings were bifurcated into liability and penalty stages. SunshineLoans sought orders that the trial judge recuse himself from the penalty proceedings on the basis of his purported apprehended bias in the liability proceedings. This bias was in relation to the conduct of SunshineLoans and the credibility of its witnesses (specifically, Mr Powe, one of the company’s directors). The trial judge accepted and recused himself on only part of this argument, noting that a reassessment of Mr Powe’s credibility would have given rise to apprehended bias. ASIC appealed the recusal decision to the Full Court which allowed the appeal and ordered a remittal to the trial judge. The High Court dismissed SunshineLoans’ appeal, concluding that no reasonable apprehension of bias arose and that the trial judge’s findings did not reveal any animosity towards nor prejudgment of SunshineLoans or Mr Powe.
Catchwords: Courts – Judges – Bias – Reasonable apprehension of bias – Where proceedings for contraventions of civil penalty provisions of National Consumer Credit Protection Act 2009 (Cth) bifurcated into liability and penalty stages – Where primary judge made adverse credit findings at liability stage – Where contraventions established – Where primary judge recused himself from hearing penalty stage – Whether recusal justified on basis of reasonable apprehension of bias – Whether findings at liability stage revealed animus or prejudgment.
Words and phrases – "adverse credibility findings", "adverse credit findings", "animosity", "animus", "bifurcated hearing", "civil penalty proceedings", "double might test", "fair-minded lay observer", "finality of judicial decisions", "impartial mind", "logical connection", "ordinary judicial practice", "prejudgment", "reasonable apprehension of bias", "recusal".
Federal Court of Australia Act 1976 (Cth), ss 37P, 59.
National Consumer Credit Protection Act 2009 (Cth), ss 166, 167, Sch 1.
Federal Court Rules 2011 (Cth), rr 30.01, 30.02.
Held (the Court unanimously dismissed the appeal):
(i) The liability judgment does not create an apprehension of bias.
(ii) As per Gageler CJ and Gleeson J, there was no suggestion of that the primary judge’s judgment was affected by procedural unfairness and, “in the context of the issued presented” his Honour’s “careful but firm rejection of SunshineLoans’ case, albeit expressed in strong terms in parts, does not demonstrate a lack of professional detachment, or, conversely, antipathy towards SunshineLoans”.
(iii) Link to the High Court’s case summary is here. | | Court of Appeal of New South Wales | Hua Nan Trading Pty Ltd t/as Huanan Trading v The Owners Strata Plan No. 32369 [2026] NSWCA 47 1 April 2026 - Payne JA and Griffiths AJA
In sum: The NSW Court of Appeal dismissed an appeal from a primary judge of the Supreme Court, who held that the applicant’s appeal from a decision of NCAT’s Appeal Panel raised no question of law. The Court of Appeal dismissed the application for leave to appeal, accepting that there was no continuity between the applicant’s two separate strata applications given the first one was closed by NCAT. As a result, the second application was filed out of time and this question of fact or mixed question of fact and law was appropriately decided by the Panel.
Facts: Hua Nan Trading Pty Ltd (the applicant) owned a unit in Strata Plan No. 32396. Following heavy rain between 7 and 10 February 2020, water flooded the unit which damaged stock stored in the unit. The first applicant claimed damages from the Owners of Strata Plan No. 32396 under s 106 of the Strata Schemes Management Act 2015 (NSW) (SSMA), on the basis that it was the respondent’s (The Owners Strata Plan No. 32396) failure to maintain and repair common property, namely a downpipe, which allegedly caused the stock to be damaged by the rainfall.
In February 2022, the applicant’s sole director, Mr Jack Mei, lodged an application for damages (“the February 2022 strata application”) but was advised by NCAT that the application could not be accepted unless proof of attempted mediation was provided (as per s 227(1) of the SSMA). The February 2022 strata application file was subsequently closed by NCAT. Following unsuccessful mediation, Mr Mei lodged a further application in April 2022 (“the April 2022 strata application”). In November 2022, the April 2022 strata application was dismissed on the basis it was brought out of time. In March 2023, an Appeal Panel upheld an appeal of this decision – concluding that NCAT could consider a time extension – and remitted the matter to NCAT to determine whether an extension of time was to be granted (“the 2023 NCAT decision”). After various proceedings before both NCAT at first instance and the Appeal Panel, a second Appeal Panel found that the April 2022 strata application had been brought out of time (s 106(6) of the SSMA). The Panel also found that there was no reason to extend this period pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
The applicant appealed this decision to the Supreme Court under s 83(1) of the NCAT Act, solely on the question of whether the April 2022 strata application was filed out of time. The applicant claimed there was continuity between the February 2022 and April 2022 strata applications. A primary judge of the Supreme Court of NSW held that no question of law was raised and leave to appeal was refused.
Held (refusing leave to appeal):
(i) No issue of principle, question of public importance, or reasonably clear injustice arising from an error which is more than merely arguable was established. The April 2022 strata application cannot be said to be a continuation of the February 2022 strata application in circumstances where the February 2022 strata application was never accepted by NCAT and the related file was closed. The April 2022 strata application related to a separate proceeding, as is reflected in the fact that it was given a separate file number by NCAT.
(ii) The question of whether the April 2022 strata application was filed out of time (the sole ground of appeal) was a finding of fact or possibly a mixed finding of fact and law. As such, there was no prospect of the applicant obtaining leave to appeal in respect of a matter which did not involve a question of law.
(iii) The various proceedings brought by the applicant occupied a disproportionate amount of time and resources in NCAT, the Appeal Panel and the Supreme Court relative to the modest amount claimed.
(iv) These matters weighed heavily against granting leave to appeal, particularly given the applicant’s substantive case was “so weak” for the reasons given in the 2023 NCAT decision. As such, leave to appeal was refused, with costs. | Veterinary Practitioners Board of New South Wales v Kovac [2026] NSWCA 60 16 April 2026 - Mitchelmore JA, Adamson JA and McHugh JA
In sum: The NSW Court of Appeal allowed an appeal from NCAT’s Occupational Division, where NCAT held that non-compliance with s 41 of the Veterinary Practice Act 2003 (NSW) (VP Act) deprived it of jurisdiction to determine several of the complaints contained in a disciplinary application. The Court instead held that, while NCAT correctly determined that it had jurisdiction to consider the Veterinary Practitioners Board’s compliance with the VP Act, it incorrectly concluded that non-compliance with s 41 of that Act deprived NCAT of jurisdiction to determine certain complaints, emphasising that the VP Act told against strict compliance being necessary.
Facts: In 2018, the applicant, the Veterinary Practitioners Board of NSW (the Board) received complaints regarding the respondent, Dr Sam Kovac, a registered veterinary practitioner. In May 2020, the Board established a committee to investigate and determine the complaints, pursuant to Pt 5 of the VP Act. During the Board’s investigation of the complaints, it became aware of additional matters potentially adverse to Dr Kovac. The Board provided Dr Kovac with written notice of these further matters but did not explicitly invite a written response. Nonetheless, Dr Kovac made written representations with respect to the further matters, which the Board considered in making its findings.
In May 2022, the Board (or delegate) determined that Dr Kovac had engaged in unsatisfactory professional conduct and professional misconduct, and lodged an application for disciplinary findings and orders (Disciplinary Application) with NCAT. In January 2025, Dr Kovac applied to NCAT for complete or partial dismissal of the Disciplinary Application on various grounds, including that NCAT lacked jurisdiction to determine the Disciplinary Application by reason of the Board’s failure to delegate its Pt 5 VP Act functions to the complaints committee. Dr Kovac also argued that NCAT lacked jurisdiction with respect to complaints 6 to 8 (dealing with the additional matters) because the Board had not complied with the notification procedures under Pt 5 of the VP Act in respect of those complaints. The Board contended that NCAT could not “look behind” the finding made by the Board (or delegate) under s 47(2)(a) of the VP Act that the veterinary practitioner is guilty of unsatisfactory professional conduct or professional misconduct (a statutory precondition to making a disciplinary application to NCAT), and that NCAT was not the appropriate forum to decide the miscellaneous application brought by Dr Kovac.
On 28 August 2025, NCAT concluded that it did have authority to decide the application brought by Dr Kovac, and that there had been an effective delegation of the Board’s statutory functions to the complaints committee. Further, NCAT found that compliance with the notice requirements under the VP Act was necessary with respect of the additional matters, the Board’s delegate did not comply with express statutory requirements in Pt 5 of the VP Act, and the failure of the Board (or delegate) to so comply deprived NCAT of jurisdiction to determine the complaints dealing with the additional matters. The Board sought leave to appeal from this aspect of NCAT’s decision.
The issues for determination on the appeal were: (1) whether leave to appeal to the Court was required, (2) whether NCAT could consider the Board’s compliance with the VP Act, (3) whether NCAT erred in finding that the Board substantially bypassed the procedures in the VP Act, and (4) whether NCAT consequently failed to engage with the Board’s submissions in relation to the consequences of its non-compliance with statutory procedures.
Held (allowing the appeal):
(i) As to issue (1), it was unnecessary to decide whether leave to appeal was required as it was accepted that leave would be warranted if NCAT was found to have erred in its construction of the VP Act, and that was so found.
(ii) As to issue (2), the Court agreed with the Tribunal’s conclusion that NCAT has jurisdiction to consider the Board’s compliance with the VP Act.
(iii) As a matter of construction of the provisions of Div 2 of Pt 5 of the VP Act, NCAT’s jurisdiction to determine the Disciplinary Application was contingent upon the Board having conducted an investigation. Dr Kovac argued that the complaints committee had not complied with the requirement in s 41, picked up by s 42(5), to invite him to provide a written response to the further matters within at least seven days and that as a result, the Board’s application for a disciplinary finding under s 50 was not made “in accordance with s 47” i.e., it had not conducted an “investigation”. The Court agreed with NCAT’s conclusion that it had jurisdiction to consider that argument, which was a matter for NCAT to decide as a precondition to its jurisdiction.
(iv) As to issue (3), the Court said that the Tribunal erred in finding that the procedures prescribed in Pt 5 of the VP Act were substantially bypassed in relation to complaints 6-8 of the Disciplinary Application, so as to deprive NCAT of jurisdiction. The Tribunal wrongly assumed that non-compliance with any part of s 41 of the VP Act resulted in invalidity, without considering whether the provisions disclosed that legislative intention. Properly construed, the terms of ss 41 and 42(5) of the VP Act, considered in context and in light of the legislative purpose, did not disclose such an intention.
(v) Further, while s 42 requires the Board to investigate a complaint, the VP Act does not stipulate that an investigation take any particular form. Section 42(3) constitutes ‘legislative recognition’ that in the course of investigating a complaint, matters may arise in respect of which another complaint could have been made, and facilitates the Board investigating such matters as part of the same investigation. Section 42(5) requires, as was required at the outset of the original complaint, that the Board comply with the notification requirements in s 41. However that subsection expressly recognises that strict compliance with s 42 may not be practicable in the circumstances, or necessary. The qualification in s 42(5) - “(with appropriate modifications)” – reflects that there will be a range of circumstances in which the Board may decide, in the midst of an investigation, to deal with further matters as if a complaint had been made. Save for requiring that the modifications “be appropriate”, the legislature has vested consideration of modifications in the Board.
(vi) In considering the effect of non-compliance with a statutory requirement or condition, it is relevant to consider the extent and consequences of the departure from the statute. NCAT referred to s 41 as an express requirement that was designed to ensure procedural fairness during the investigation stage of disciplinary matters. However, the appellant did not contend that he was denied procedural fairness but rather, that because he was not invited to make a written response to certain complaints, NCAT was deprived of jurisdiction with respect to those complaints. The Court considered the case of Barwick v Law Society of New South Wales [2000] HCA 2; 169 ALR 236, where the High Court found that there had been a substantial bypassing of procedures laid down by Pt 10 of the Legal Profession Act, by the Law Society, which resulted in the tribunal lacking jurisdiction to determine the disciplinary application brought by the Law Society.
(vii) As to issue (4), by proceeding on the assumption that strict compliance with s 41 of the VP Act was necessary, NCAT did not engage with a substantive argument made by the Board regarding the consequences of departure from the statute, with the result that NCAT constructively failed to exercise its jurisdiction. | | Supreme Court of New South Wales | Rowley v Charles Sturt University [2026] NSWSC 275 9 March 2026 - Fagan J
In sum: The Supreme Court of NSW granted leave to amend a summons for orders in the nature of judicial review of an NCAT decision, but dismissed the amended summons because the plaintiff failed to make out any reviewable error in NCAT’s decision. As such, there was no merit in the application for judicial review. The plaintiff had appealed NCAT’s decision which refused leave to proceed with a discrimination complaint he made to the President of the Anti-Discrimination Board, regarding Charles Sturt University’s (the University) decision to exclude him from enrolment due to findings of misconduct. The original application before NCAT centred upon the plaintiff’s claim that the University had discriminated against him on the basis of his disability and transgender status, in contravention of Pt 3A and 4A of the Anti-Discrimination Act 1977 (NSW).
Facts: From 2014, the plaintiff was enrolled in a Bachelor of Theology at Charles Sturt University, School of Theology. The plaintiff was 35 years old when he commenced the course and studied part-time over the next nine years. At least during 2022, he was in receipt of a Commonwealth Disability Benefit and a Pensioner Education Supplement (the Supplement) through Centrelink. In 2023, Centrelink notified the plaintiff that he would no longer receive the Supplement. This led the plaintiff to request University staff to write letters which would assist towards reinstating the benefit. Subsequently the plaintiff made defamatory statements about staff members, alleging that they cancelled courses that the plaintiff wished to undertake and sabotaged his claim for Commonwealth benefits. This resulted in a charge of misconduct against him, and he was excluded from enrolment for five years.
The University’s internal appeals body affirmed the decision to exclude the plaintiff from enrolment. A further appeal to the Commonwealth Administrative Appeals Tribunal was rejected for want of jurisdiction, and his application to NCAT under the Anti-Discrimination Act was also dismissed. The plaintiff’s appeals stemmed from his original complaint that the University discriminated against him because of his disability (autism) and his transgender status.
In September 2024 the plaintiff filed a summons commencing proceedings in the Supreme Court of NSW, purporting to appeal from a decision of NCAT’s Administrative and Equal Opportunity Division (AEOD). NCAT refused leave to proceed with the plaintiff’s discrimination complaint which was referred to NCAT by the President of the Anti-Discrimination Board.
Held (allowing leave to amend summons but dismissing amended summons seeking orders in the nature of judicial review, with there being no merit in the application for judicial review):
(i) The plaintiff presented his documentary evidence to NCAT in “great disorder”. The documents were not arranged chronologically, grouped or sequenced according to any subject matter or theme, and many documents were duplicated. The Senior Member therefore made clear that she would not look at all of the documents tendered and she invited the plaintiff to draw her attention to those that supported his complaint against the defendant. It was clear from the Senior Member’s reasons that she looked at a sufficient number of them to gain a comprehensive understanding of the dealings between the plaintiff and the University.
(ii) The plaintiff complained to the Court that it was unreasonable for the Senior Member not to have looked at all of his jumbled papers. However, an administrative decision maker is entitled to make his or her own assessment of what evidence is material and is not bound, in reasons, to refer to every document tendered: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. The documents tendered in Court were in the same “chaotic state” as that in which NCAT received them. The plaintiff did not identify any specific document that NCAT overlooked and that might have been significant to the question of leave under s 96(1) of the Anti-Discrimination Act.
(iii) The documents tendered made clear that the plaintiff suffered “a great deal of adversity” in his early home life and his autism and change of gender have added to his difficulties. The plaintiff “is deserving of a great deal of sympathy for the personal hardships he has had to bear”.
(iv) The University’s communications with the plaintiff “at all times exhibited patience, respect and a conscientious endeavour to make allowances”, clearly showing its attempt to provide a nurturing and safe environment for the plaintiff’s learning experience, having recognised his personal challenges.
(v) The plaintiff’s interactions with the University deteriorated into “irrationality and embitterment” on his part.
(vi) There was no fault in NCAT’s disposition of the leave application, and nothing in the University’s conduct that could explain the plaintiff’s” apparent fixation” upon the belief that he was discriminated against in contravention of the statute. | Culleton v Tonks [2026] NSWSC 174 10 March 2026 - Harrison AsJ
In sum: The Supreme Court concluded that the plaintiff’s application for judicial review failed on all grounds. In the first instance NCAT proceedings, the plaintiff was ordered to pay the defendants a sum of $61,993.53. An Appeal Panel dismissed the plaintiff’s internal appeal, refused leave to appeal and awarded the defendants costs. The plaintiff filed a summons in the Supreme Court seeking, among other matters, judicial review of the Appeal Panel Decision.
Facts: The judicial review application arose out of defective roofing work carried out by the plaintiff in mid-2022. In May 2022, the defendants entered into a contract with Steelbond, Black Diamond Site Services Pty Ltd (Black Diamond) and Mr Ronald Lawrence (Mr Lawrence), the builder who performed the roofing works on the defendants’ home. The works included the removal and replacement of asbestos roof. From June to August 2022, the roofing work was performed. In December 2023, the defendants commenced proceedings in NCAT’s Consumer and Commercial Division (CCD) against Steelbond and Mr Lawrence, claiming $80,000 plus costs (the defendants’ application). In May 2024, NCAT also made orders agreeing to add the plaintiff to the proceedings in his personal capacity, allowing the defendants to amend the claim against the plaintiff but NCAT refused to add Black Diamond as a respondent.
In November 2024 NCAT found that Steelbond and the plaintiff were jointly and severally to pay the defendants the sum of $61,993.53. In December 2024, however, the plaintiff lodged a Notice of Appeal in NCAT and applied for a Stay. In January 2025, after being ordered to pay the defendants’ legal costs, the plaintiff and Steelbond were granted an interim stay until the Appeal Panel’s judgment. In May 2025, an NCAT Appeal Panel dismissed the appeal, refused leave to appeal and awarded costs to the defendants. The Panel noted that the appeal documents were unsatisfactory and did not clearly articulate the questions of law raised. In July 2025, the plaintiff filed a summons seeking judicial review of the Appeal Panel decision in the Supreme Court. He sought certiorari quashing the CCD decision, a declaration under ss 69(3) or 75 of the Supreme Court Act 1970 (NSW) that he was not liable to pay the sum, a declaration that the defence of mere puffery be upheld, an order that the defendants’ ACL claim be dismissed, and an order remitting the matter back to NCAT.
Held (dismissing the summons):
(i) Agreeing with the defendants’ submission, NCAT’s interlocutory decisions and final decision were not amenable to judicial review because the Appeal Panel’s decision replaced the first instance decision as the operative decision determining the plaintiff’s liability and therefore judicial review of the CCD decision was not available.
(ii) Additionally, under s 80(2)(a) of the NCAT Act leave is required to appeal NCAT’s interlocutory decisions to the Appeal Panel, and no such leave was sought. Section 34(1) of the NCAT Act allows the Court to exercise its discretion to refuse to conduct judicial review of an NCAT decision if an internal appeal has been lodged and heard. As such, the Court refused judicial review. In any event, there was no merit in the plaintiff’s submissions that he and Steelbond were denied procedural fairness.
(iii) Considering whether the Appeal Panel erred in law in concluding that the plaintiff could be personally liable under s 18 of the ACL, the Court held that Panel’s reasoning was orthodox and not legally unreasonable. The Panel had appropriately cited Bell CJ in Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35 in which there was nothing to suggest that “direct liability of an officer of a company for misleading and deceptive conduct is limited to situations that a very high level of misconduct or breach should be found before the officer is personally liable”. The Panel correctly understood and applied the distinction under s 18 ACL where liability does not depend on establishing an exception to the principle of separate corporate responsibility.
(iv) The NCAT Member at first instance provided evidence for the finding of fact regarding the one of the defendants’ credibility and as such, NCAT’s findings were not irrational or illogical meaning this ground of judicial review failed.
(v) The Appeal Panel did not err in accepting NCAT’s findings at first instance that the representation made by the plaintiff and Steelbond that the work would be conducted by appropriately licensed, qualified and experienced tradesmen was not a ‘mere puffery’ but substantive and this representation induced the defendants to contract with Steelbond. | Megan Thomson v City West Housing Pty Ltd [2026] NSWSC 275 26 March 2026 - Weinstein J
In sum: The Supreme Court of NSW granted a stay of a decision of NCAT’s Consumer and Commercial Division (CCD) making a termination order and an order for the possession of property, and to the extent necessary, the decision of NCAT’s Appeal Panel which had refused to grant a stay of NCAT’s orders. The Court held that a real issue of procedural fairness arose in NCAT’s hearing where Ms Thomson (the plaintiff) had not received any documents initiating proceedings due to being in custody. As such, a stay until the determination of her internal NCAT appeal.
Facts: The Supreme Court granted leave to appeal an Appeal Panel order (of 16 March 2026) refusing to stay orders made on 12 February (a termination order and an order for possession of a property). In the first instance NCAT proceedings, the plaintiff (Ms Thomson, then the defendant) had not received documents initiating proceedings because she was in custody at Wellington Correctional Centre.
Ms Thomson alerted NCAT to the fact that she had no documents before her during the hearing, but NCAT proceeded to hear the matter nonetheless, finding that Ms Thomson was in contravention of the Residential Tenancies Act 2010 (NSW) (RT Act). Ms Thomson sought a stay until the determination of an Appeal Panel of NCAT.
Held (granting a stay of NCAT and the Appeal Panel’s decisions):
(i) It appeared to the Court that NCAT’s reliance upon ss 50 and 92 of the RT Act was arguably erroneous at law and, most importantly, appeared to raise a real issue about procedural fairness with respect to the conduct of the hearing.
(ii) The request stay was granted because the internal NCAT appeal raised “serious issues for determination” and there was a “real risk” Ms Thomson would suffer “significant prejudice or damage”.
(iii) Ms Thomson was then able to approach NCAT forthwith to endeavour to obtain a hearing date for the appeal sooner than 5 May 2026. | Darjilla Pty Ltd trading as Corowa Supa IGA v Annamneni [2026] NSWSC 402 23 April 2026 - Schmidt AJ
In sum: The Supreme Court of NSW refused an application for judicial review, finding that NCAT had not made a jurisdictional error when considering s 31 of the Liquor Act 2007 (NSW) (the Liquor Act). The Court agreed with NCAT that because the relevant premises was a “general store” and not a “take-away food store” the restrictions under s 31(2) did not apply, and NCAT provided sufficient reasoning for this conclusion.
Facts: In April 2024, NCAT made orders granting the defendant a packaged liquor licence for the premises at which the business “South Corowa General Store” is conducted. In doing so, NCAT set aside the Independent Liquor & Gaming Authority’s (the Authority) August 2023 refusal of the defendant’s application for this licence under s 45 of the Liquor Act.
IGA made a submission to the Authority opposing the grant of the licence despite not being a party to the proceedings. IGA subsequently (and “belatedly”) pursued judicial review of NCAT’s decision, seeking orders quashing the decision and a declaration that no packaged liquor licence could be granted for the premises. IGA contended that the decision was invalid due to jurisdictional error as NCAT failed to consider or apply the mandatory requirements of s 31(2) of the Liquor Act. The defendant disputed IGA’s standing to bring the proceedings and opposed it being granted the extension of time it required to bring the Supreme Court proceedings.
At the core of this application was IGA’s contention that the reasons NCAT gave for its decision established jurisdictional error (of the kind dealt with in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40) because NCAT did not comply with the s 31(2) mandatory consideration by merely accepting the description of the defendant’s premises as a “general store”.
Held (refusing the application):
(i) IGA did have standing. In establishing its standing, IGA relied on its interest under the proper construction of s 31(2) of the Liquor Act which it claimed was more than that held by members of the public, given its own operation of a licensed packaged liquor store in the locality. It was disputed, however, that IGA and the defendant were competitors. The evidence did not establish that IGA suffered any loss of profits since the grant of the disputed licence about 20 months before the hearing. IGA Manager’s affidavit said that there had not been sufficient time to determine the actual impact on its business. Regardless, the Court held, IGA does have an interest in the operation of s 31 of the Liquor Act, different to that of ordinary members of the public, and as a result, had standing to bring the proceedings.
(ii) In seeking an extension of time, IGA relied on the fact that its manager was a sole commercial trader, trading in the market into which the defendant’s unlawful licensed operation began. While the Court deemed its explanation for delay as “inadequate” the most significant factor was still the fact that IGA had an arguable case of jurisdictional error. Thus, the extension was granted.
(iii) Given the evidence the Authority had to consider, it accepted that the premises fell within the definition of a general store in s 31(3). The premises would only have attracted the restrictions imposed by s 31(2) if it were found to be a take-away food store. The Court did not accept that the s 31(2) prohibition was imposed nor was it raised by the material NCAT had to consider, and so the claimed jurisdictional error could not be established. This was because the premises was a “general store”, meaning s 31(2) was not engaged and had no work to do.
(iv) Evidence considered by the Court included that general store goods had made up 86.52% of sales at the premises, take-away food only 10% and fuel 4.35%.
(v) In the alternative, in the event the Court was wrong on its conclusions above, it dealt with IGA’s evidence supporting its claim that the premises was in fact a “take-away food shop”. IGA presented its evidence on the basis of the number of items sold, rather than the percentage of the types of sales made. IGA had gathered its evidence subsequent to NCAT’s decision. The Court emphasised that the factual position of the premises after NCAT made its decision was not relevant. The Court concluded that even if what was sold at the premises changed after NCAT’s decision, as IGA contended, that was irrelevant to the determination of the judicial review proceedings. This “attack” on the licence granted by NCAT was therefore made on the basis of circumstances which changed after NCAT gave its decision, and could not be pursued as the evidence was not relevant nor admissible.
(vi) Therefore, jurisdictional error could not be established. | J & E Miller (Builder) Pty Ltd v Awad [2026] NSWSC 411 23 April 2026 - Sirtes J
In sum: The Supreme Court of NSW refused to grant leave to appeal from NCAT’s Appeal Panel on all five grounds. The applicant was a builder who was party to a contract with the respondent (the homeowner) and was found, by NCAT at first instance to be in breach of Home Building Act 1989 (NSW) (the HBA). An Appeal Panel found NCAT had not made an appealable error.
Facts: The applicant (“the Builder”) submitted an application to the Supreme Court of NSW for leave to appeal from a decision of NCAT’s Appeal Panel, in which the Builder’s appeal from NCAT’s Consumer and Commercial Division (CCD) was dismissed (the Primary Decision) in February 2025. The applicant at first instance (now the respondent, the Homeowner) was a homeowner who entered into a contract with the Builder. The homeowner contended that his residence suffered from water leaks from the main bathroom, causing damage to the floor and leaking from various rooms. These, the Homeowner contended, constituted breaches of the statutory warranties implied into the building contract by s 18B of the HBA. In this primary decision, NCAT was satisfied that there were defects in the waterproofing system that were causing or likely to cause destruction of part of the building. The homeowner had previously (in May 2024) lodged an insurance claim in relation to these damages and gave evidence that he became aware of the damages months prior. NCAT therefore accepted that the Homeowner was aware of the breaches in early 2024, but also made a finding of fact that the Homeowner “only became aware of the breach in the last six months of the warranty period”.
Held (leave to appeal refused):
(i) Ground 1 (which considered whether the Appeal Panel “erred in law” by failing to make a finding that NCAT’s Primary Decision did not provide adequate reasons) appeared to be “founded on nothing more than a contention that because the Appeal Panel did not accept that the Tribunal erred in law that this, of and by itself, constituted an error of law on the part of the Appeal Panel”.
(ii) Ground 2 (which concerned an alleged error of law in NCAT’s application of s 18E(1)(f) of the HBA) failed to specify the constructive failure to exercise jurisdiction which was being claimed. It again focused on a purported inadequacy of reasons and as such, could not be made out, with any alternative conclusion inconsistent with Ground 1.
(iii) Ground 3 was effectively abandoned by the Builder.
(iv) Ground 4 also asserted an error of law in the form of a denial of procedural fairness on the basis of a failure to consider evidence, and NCAT allowing an impermissible “prompting” of evidence. The Court agreed with the Appeal Panel that the applicant’s allegations that both experts were not heard, was “unsupported by the evidence and a mischaracterisation of what occurred”. The Builder also argued that NCAT denied it procedural fairness by “permitting ‘prompting and help by the Homeowner’s expert’” during the Homeowner’s oral evidence. The Court again agreed with the Panel that, as soon as NCAT became aware that others in the room with the Homeowner were prompting him, NCAT immediately stopped his evidence and warned that such prompting was impermissible. As such, Ground 4 was rejected.
(v) Ground 5 was “entirely without foundation” and “wholly without merit”. After NCAT accepted the Builder’s submissions and evidence and made a money order, the Builder complained that NCAT should have rejected its submissions and evidence and instead required the Builder to attend the site and undertake rectification work. The Court deemed this to be “an opportunistic attempt by the Builder to withdraw from its original position because it was unhappy with an outcome it had itself invited”. Neither NCAT nor the Appeal Panel erred in their respective determinations of this issue.
(vi) Leave to appeal was refused, with the plaintiff to pay the defendant’s costs. | Supreme Court of Victoria | Medical Board of Australia v Gibbs [2026] VSC 158 27 March 2026 - K Judd J
In sum: The Supreme Court of Victoria dismissed an appeal from the Victorian Civil and Administrative Tribunal (‘VCAT’), concluding that VCAT did not err in law or misapply the privilege against exposure to penalties when vacating order 3 on the basis respondent (Dr Gibbs) was entitled to rely on penalty privilege in the proceedings before VCAT. In other words, Order 3 could be vacated because the respondent was entitled to invoke his right to penalty privilege in relation to the new allegations brought against him in 2025.
Facts: This was an application for leave to appeal an order of VCAT, brought by the Medical Board of Australia (the Board). The appeal considered whether the privilege against exposure to penalties applies in proceedings conducted before VCAT under Part 8 of the Health Practitioner Regulation National Law (the National Law). The respondent (Dr Gibbs) is a medical practitioner specialising in haematology. In January 2025, the Board filed a referral of his matter to VCAT under s 193(1) of the National Law. After the matter was listed for a directions hearing, Dr Gibbs adopted a “towie” position (that is, invoking his right to penalty privilege in relation to new allegations brought against him in 2025). Penalty privilege is a common law right which grants individuals a privilege against self-exposure to a penalty, meaning they cannot be forced to answer questions or provide documents if doing so would expose them to penalty. In Victoria, the leading authority regarding penalty privilege is the Court of Appeal’s judgment in Towie v Medical Practitioners Board of Victoria [2008] VSCA 157; (2008) 29 VAR 252, where it was found that “the usual directions given at VCAT, would not generally be appropriate where an applicant seeks to review disciplinary proceedings and is a person who is or may be exposed to a penalty”.
The Board claimed that VCAT erred in law by making orders on the basis that Dr Gibbs was entitled to rely on penalty privilege, when no such privilege applied. In the alternative, the Board claimed, if the privilege did apply, VCAT erred in law and misapplied the privilege. As such, the Victorian Supreme Court had four key issues to determine: firstly, whether the privilege against exposure to penalties has operation outside judicial or curial proceedings; secondly, whether VCAT proceedings under Part 8 of the National Law are curial; thirdly, whether there is a statutory basis for the application of the privilege against exposure to penalties; and fourthly, the scope of privilege against exposure to penalties.
Held (granting leave to appeal but dismissing the appeal):
(i) It was not appropriate for the Court to proceed on the basis that the privilege against exposure to penalties is not a substantive rule of law or common law immunity with application outside of judicial or curial proceedings (citing, for example, Australian Securities & Investments Commission v Plymin [2002] VSC 56; (2002) 4 VR 168, Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, Rich v Australian Securities & Investments Commission [2004] HCA 42; (2004) 220 CLR 129). While the relevant statutory scheme may indicate that penalty privilege may apply in a non-curial proceeding, the “starting point” is that it does not apply in a non-curial setting.
(ii) Proceedings under Part 8 of the National Law are not curial proceedings. The Board submitted that VCAT is not a court but an administrative body exercising regulatory and administrative functions conferred upon it by the VCAT Act and the various pieces of legislation providing it with jurisdiction. On the contrary, Dr Gibbs submitted that the National Law places the referral of matters under s 193 plainly into a curial setting. The Court cited Medical Board of Australia v Kemp [2018] VSCA 168; (2018) 56 VR 51 (‘Kemp’) to support its conclusion that VCAT is not involved in a process that represents curial adjudication of private rights because (1) VCAT proceedings are regulatory in nature and serve a public nature to enforce the standards for health practitioners (2) the proceeding is not a dispute inter partes (3) the outcome of the proceeding is not determinative of private rights and (4) the courts’ rules of evidence, practice and procedure do not apply.
(iii) Section 106 of the VCAT Act is very broad and purports to cover all privileges which can be invoked in Supreme Court proceedings. Section 106 provides “a person is excused from answering a question or producing a document in a proceeding if the person could not be compelled to answer the question or produce the document in proceedings in the Supreme Court”. The Court then quoted Niall JA in Kemp stating “Section 106 operates to preserve privileges that would apply in all proceedings in the Supreme Court, and s 98 has to be read in that light. For example, s 106 would operate to preserve in VCAT proceedings legal professional privilege, the privilege against self-incrimination, the privilege against exposure to penalties…” While this was not part of the ratio of Kemp, nothing suggests any inaccuracy in the statement nor that it would lead to an “absurd result or an outcome not intended by the legislature”. As such, the Court held there is a statutory basis for the application of the privilege against exposure to penalties in the VCAT proceedings the subject of this appeal.
(iv) In regard to the scope of the penalty privilege, both parties accepted that if penalty privilege did apply, then the Board had to prove its case without any assistance from Dr Gibbs. The Board sought to rely on Migration Agents Registration Authority v Frugtniet [2018] FCAFC 5; (2018) 351 ALR 650 where the Full Federal Court held that, even if penalty privilege did apply to the relevant AAT proceedings, its application would not have been triggered by the AAT’s procedural orders. This was because the penalty privilege protects people from being compelled to provide proof against themselves, not a protection from the disclosure of evidence intended to be relied on as a matter of the efficient administration of a non-curial tribunal.
(v) The Court was not persuaded, however, that conclusions expressed about the scope of penalty privilege in previous cases were “necessarily linked to an assumption that penalty privilege is a substantive common law right rather than a lesser species of privilege”. The Court emphasised that requiring a respondent to a disciplinary proceeding to make an election as to whether he or she intends to go into evidence prior to the close of the case against him or her, is quite distinct from the VCAT Board’s desire to make directions promoting efficiencies.
(vi) Any directions in the context of proceedings under Part 8 of the National Law permit a deferral of the decision to call evidence by a respondent until after the case against the respondent has closed, and VCAT did not err in law or misapply the privilege against penalties insofar as it vacated order 3.
(vii) Leave to appeal granted, but appeal dismissed as the appeal grounds were not made out. | | 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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