NCAT Legal Bulletin Issue 3 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 New South Wales Court of Appeal, the Supreme Court of New South Wales and the Victorian Court of Appeal published in May and June 2025. | Chalik v Chalik [2025] NSWCA 136: The Court of Appeal dismissed an appeal from a self-represented litigant and clarified that while courts must assist those who represent themselves by explaining practice and procedure, their role is not to give advice as to how to run the case and are not obliged to ensure such parties assert all possible rights or arguments. The plaintiff’s claim that he was denied procedural fairness because the Court considered the deceased’s testamentary capacity was rejected, as the issue was properly raised and central to matter.
| Dr N Kalokerinos Pty Ltd v Jain [2025] NSWCA 137: The Court of Appeal granted leave but dismissed a landlord’s appeal from the Supreme Court, that had upheld an Appeal Panel decision. The issue concerned whether a tenant was an “impacted lessee” under the Retail and Other Commercial Leases (COVID-19) Regulation 2021 (NSW) (Regulation) and whether the tenant was required to provide evidence with no request from the landlord. The Court found that the Regulation only required the tenant to provide such information after a request, which had not occurred. The landlord’s own admission confirmed the tenant’s status and therefore the tenant was not required to prove the agreed fact.
| The Owners-Strata Plan No 93543 v Zhang (No 3) [2025] NSWSC 571: The Supreme Court found the Owners Corporation validly rescinded a settlement deed, rejecting Mr Zhang’s estoppel argument and regain his limitations defence and awarding damages for defects in common property. The Court confirmed that the Owners Corporation had standing under the Strata Schemes Management Act 2015 (NSW) to claim for common property defects, but not for individual lot defects. However the Court noted that an Owners Corporation has limited powers under s 255 to act in relation to conditions that affect support or shelter to another part of the build and as agent on behalf of lot owners.
| Di Liristi v Yosef [2025] NSWSC 642: The plaintiff sought judicial review of a decision from the Consumer and Commercial Division of NCAT on the basis that the Tribunal lacked jurisdiction to determine the matter because District Court proceedings were already on foot concerning the same issues. Elkaim AJ set aside NCAT’s decision, finding that, under cl 5(7) of sch 4 to the Civil and Administrative Tribunal Act (NSW), NCAT ceases to have jurisdiction on becoming aware of proceedings before a court where there are overlapping issues in dispute.
| Khanna v Bunnings Group Limited (No 2) [2025] NSWSC 677: In a costs decision following the Supreme Court’s dismissal of the plaintiff’s judicial review application, the defendant sought a gross sum costs order of over $25,000, citing the plaintiff’s “cost prohibitive” conduct. McHugh J found the defendant’s supporting material was insufficient and instead awarded $14,614.50 based on reasonable hours and the solicitor’s applicable rates, treating the application for costs as one for a gross sum costs order in the amount nominated or some lesser amount determined by the court.
| Della Bruna v Health Care Complaints Commission [2025] NSWCA 105: The Court of Appeal (by majority) allowed Dr Albina Bella Bruna’s appeal from NCAT’s Stage 1 decision, finding that there were errors of procedural fairness and inadequate reasons. The appellant challenged the majority’s decision on various bases, including that it: (i) denied the appellant procedural fairness in finding that her objectivity was compromised by financial pressure; (ii) erred in rejecting the appellant’s oral evidence; and (iii) erred in various factual findings in relation to the extent of testing and monitoring performed by the appellant. The Court held that NCAT had wrongly found that Dr Bruna’s objectivity was compromised by financial pressure - an allegation that was not alleged as part of the Commission’s case - and failed to explain why her oral evidence was rejected, which amounted to a jurisdictional error. The Court also found NCAT erred in misapplying the legal test for “professional misconduct” by relying on case law that applied different historical criteria rather than the statutory definition outlined in s 139E of the Health Practitioner Regulation National Law 2009 (NSW). The matter was remitted to a differently constituted tribunal for reconsideration.
| Simich v Chief Commissioner of State Revenue [2025] NSWSC 559: The Supreme Court granted leave to appeal and dismissed an appeal from an Appeal Panel decision, finding that the Appeal Panel had appropriately proceeded on the basis that the plaintiff’s intentions were unlawful. The plaintiff contended that her property, being a four-storey unoccupied residence which was under construction (with the ground floor designated for commercial use that she intended to keep vacant), fell within the principal place of residence exemption from land tax in cl 6(1) of sch 1A to the Land Tax Management Act 1956 (NSW). The Appeal Panel had affirmed NCAT’s finding at first instance, that the exemption did not apply where it was an agreed fact that the commercially zoned areas of the property could not be lawfully used.
| Visscher v SafeWork NSW [2025] NSWSC 489: The Supreme Court dismissed the plaintiff’s judicial review of the Industrial Relations Commission’s (IRC) decision which found no jurisdictional error in the Commissioner’s decision. The Court reiterated the important distinction between the jurisdictional error in the Commissioner’s decision and not the underlying decision concerning the inspector’s power. The plaintiff, an owner-builder, had challenged SafeWork’s authority to issue a prohibition notice through internal and external reviews in the IRC, arguing the site (his home) was not a “workplace” under the WHS Act. The Court noted it was arguable that the “workplace” test should be based on the inspector’s reasonable belief under ss 8 and 195 of the Work Health and Safety Act 2011 (NSW), rather than an objective standard, but this issue was not pursued by the parties and was not material to the outcome. Ultimately, the Court held that the Commissioner’s decision was within jurisdiction and there were no grounds for judicial review.
| Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94: The Victorian Court of Appeal allowed an appeal on procedural fairness grounds after the applicant, who was self-represented, was not informed that the respondent may decline to call any witnesses. The instructions, while conscientious and diligent, did not clarify that after the applicant’s case closed, he would not be able to call further witnesses should the respondent choose not to call witnesses. When the respondent made a no case submission at the conclusion of the applicant’s case, the applicant was unable to prove causation because he had intended to cross examine the installer on that issue during the respondent’s evidence.
| | Court of Appeal of New South Wales | Chalik v Chalik [2025] NSWCA 136 19 June 2025 – Bell CJ, Payne JA, Free JA
In sum: The Court of Appeal considered the extent of the duty on a court to assist a self-represented party in civil proceedings and reviewed previous decisions of intermediate appellate courts, which have emphasised that an unrepresented litigant should be provided with sufficient information about the practice and procedure of the court to ensure a fair trial takes place. Their Honours observed that care must be taken not to disturb the balance which the rules of practice and procedure are designed to afford both parties.
Facts: Margaret Chalik (the deceased) created two Wills. The first Will split her estate evenly between her two sons, Gregory and Isaac. The second Will left everything to Gregory. The primary judge held that the deceased lacked testamentary capacity to make the second Will, did not know and approve the second Will’s contents, and was subject to Gregory’s undue influence, having regard to evidence of the deceased’s deteriorating cognitive condition. The first Will was admitted to probate, with the primary judge holding that it made adequate provision for Gregory because he would obtain a “buffer for contingencies in life”.
Held (Appeal dismissed with costs and the cross-appeal was allowed):
(i) On appeal, Gregory raised procedural fairness concerns and complained that Isaac’s defence, which had raised the deceased’s capacity, was an abuse of process. The Court found that it was plainly legitimate for Isaac to call into question the deceased’s testamentary capacity. On this ground, the Court noted Gregory’s emphasis on “appealing self-represented” and as a “layperson”, contending that he should have been provided with advice by the primary judge. The Court rejected the proposition stated in an earlier Court of Appeal decision in MHT v State of New South Wales [2025] NSWCA 122, that a court has an “obligation to ensure” that an unrepresented party does not, “because of lack of legal skill, fail to claim rights or put forward legal arguments”. Their Honours noted that that statement “significantly overstates a court’s responsibility to an unrepresented litigant and is far too absolute in its use of the expression “an obligation to ensure …”: at [68]. Their Honours held that self-represented litigants should be given information on the practice and procedure of the courts while ensuring fairness to both parties.
(ii) Isaac applied for leave to cross-appeal the amounts in the costs orders against Gregory, which represented under a quarter of the costs Isaac had disclosed. The application applied to re-open the matter and draw attention to the fact of, and Gregory’s rejection of, a Calderbank letter and a formal offer of compromise issued prior to the commencement of proceedings. The Court held that the costs order would have resulted in Isaac losing almost 20% of his inheritance because of Gregory’s unreasonable rejection of Isaac’s two offers of compromise. Leave to cross-appeal was granted and the cross-appeal was allowed. The cost order was varied by increasing the order to $130,000. | Dr N Kalokerinos Pty Ltd v Jain [2025] NSWCA 137 20 June 2025 – Ward P, Adamson JA, Price AJA
In sum: The Court of Appeal granted leave to appeal but dismissed an appeal from the Supreme Court. The Supreme Court decision upheld the Appeal Panel decision for the reasons it gave, finding that the admissions of the landlord were analogous to an agreed fact and the tenant was not required to provide further evidence to prove an agreed fact.
Facts: A landlord had issued a notice to terminate and take possession of a premises used to operate a restaurant for non-payment of rent during the period that there was a moratorium on landlords taking such action against “impacted lessees” under the Retail and Other Commercial Leases (COVID-19) Regulation 2021 (NSW) (Regulation). The former tenant commenced proceedings in NCAT, claiming that he was an “impacted lessee” entitled to protection. The landlord filed a cross application seeking damages of $100,000.
While NCAT initially found that the former tenant did not establish that he was an “impacted lessee”, the Appeal Panel interpreted the Regulation differently, holding that he was in fact an “impacted lessee” and also reduced the damages payable under the landlord’s cross claim. the facts that the landlord admitted that the tenant was an “impacted lessee” amounted to an admission. It was found that under the Regulation, a lessee is only required to give the information after the lessor has requested it. It was accepted that the landlord did not request such information. The landlord appealed to the Supreme Court, where the Appeal Panel’s interpretation was upheld as correct and the landlord’s claim to damages was further reduced.
The landlord sought an extension of time for leave to appeal to the Court of Appeal against orders made in the Supreme Court. The two issues on appeal were: (i) whether the Regulation imposed an obligation on a lessee to provide a lessor with a statement or evidence that he was an “impacted lessee”; and (ii) whether the respondent was an “impacted lessee”.
Held (Granting leave to appeal and dismissing the appeal):
(i) The application for leave, formed (in part) on the true construction of the Regulation and raised matters of public importance so leave to appeal was granted.
(ii) The Court of Appeal held that under cl 6A of the Regulation, the lessee was only obliged to provide the information showing it was an impacted lessee within a reasonable time after the lessor had requested it, unlike previous versions of the Regulation. The onus was on the lessor to make the request and therefore, this ground was not made out.
(iii) In relation to the second ground of appeal, the Court of Appeal considered that admissions in the lessor’s Points of Defence that the lessee had received the 2021 Covid-19 Business Grant and he had a turnover of less than $50 million, for the relevant financial year, amounted to an admission that he was an impacted lessee. In circumstances where the lessor later sought to argue the lessee had not proved it was an impacted lessee. The Court of Appeal stated at [65] that “[b]ecause the applicant admitted these allegations, they were no longer in dispute and Mr Jain was not required to prove them”, which is “binding unless leave is granted to withdraw it” (at [67]). This ground was not made out. | | Supreme Court of New South Wales | The Owners-Strata Plan No 93543 v Zhang (No 3) [2025] NSWSC 571 4 June 2025 – Stevenson J
In sum: In the course of proceedings that focussed on whether a Deed between the Owners Corporation (the plaintiff) and Mr Zhang (who was the developer and also owned 2 lots in the strata scheme) could be rescinded, the Supreme Court considered the issue of whether the Owners Corporation had standing to seek compensation for lot property against the developer in respect of defects in common property and in some of the units. The Court held that the Owners Corporation had standing under s 254 of the Strata Scheme Management Act 2015 (NSW) (SSM Act) to bring an action in respect of common property.
Facts: Mr Zhang previously owned the site on which the development of apartments had been constructed. He was also the developer. He retains two units of twenty units in the Owner’s Corporation. The builder was ZH International Pty Ltd, now in liquidation. Mr Zhang was also a director and shareholder of that company. The proceedings were first heard in the Supreme Court in June 2021. The proceedings were stood over without proceeding to final submissions to enable mediation and settlement discussions to take place. In March 2025, the parties informed the Court that they had entered into a settlement deed, however the plaintiff could rescind the deed in particular circumstances. Given that possibility, a time was reserved for final submissions in May of 2025. The plaintiff provided submissions, while the defendant did not. It was only when the matter was restored to the list that the Court was informed that the deed had been rescinded. The effectiveness of the rescission was in dispute.
Held (An Owners Corporation is entitled to damages for defective works within the common property, not lot property):
(i) The proceedings focused on whether the deed was rescinded by the plaintiff. The court considered the contentions of the defendant that the plaintiff was estopped from relying on its right of recission under the deed and was obliged to give him more time to perform, noting that the plaintiff’s conduct indicated that it would not rely on its strict rights under the deed when it did not immediately rescind for strict non-compliance. His Honour found that the deed was effectively rescinded, and the defendant’s motion was dismissed.
(ii) The Supreme Court considered the issue of whether the Owners Corporation, had standing to seek compensation for lot property against the developer in respect of defective lot property under the Home Building Act 1989 (NSW). Stevenson J held at [86]-[97] that the plaintiff only had standing under s 254 of the SSM Act to bring an action in respect of common property. The plaintiff has, for the benefit of lot owners in the strata scheme, management and control of common property and administration of the strata scheme under s 9 of the SSM Act. Section 9 does not extend to acting as the agent of a lot owner to bring proceedings in respect of lot property. The Court acknowledged there may also be a limited power under s 255 of the SSM Act (structural defects), but there was no evidence to establish the necessary conditions precedent. | Di Liristi v Yosef [2025] NSWSC 642 20 June 2025 – Elkaim AJ
In sum: The plaintiff sought judicial review of a decision in the Consumer and Commercial Division of NCAT on the basis that the Tribunal lacked jurisdiction to determine the matter where there are District Court proceedings on foot concerning the same issues. Elkaim AJ set aside NCAT’s decision, finding that, under cl 5(7) of sch 4 to the Civil and Administrative Tribunal Act (NSW) (NCAT Act), NCAT ceases to have jurisdiction on becoming aware of proceedings before a court where there are overlapping issues in dispute.
Facts: The defendant, the landlord, leased a property to the plaintiff in August of 2021. In November 2021 proceedings commenced in the Local Court. In 2023 the Local Court proceedings were transferred to the District Court. The defendant has filed five proceedings with NCAT between 2021 and 2024 that were dismissed. It was not in dispute that these applications where the defendant’s attempts to terminate the lease and regain possession. The issue in the current proceedings concerned a notice of termination of the lease served on the plaintiff requiring him to vacate the premises, which he did not do. The defendant then filed an application with NCAT which sought to terminate the lease and take possession of the property. The application was heard in April 2025 and orders were made. The April 2025 decision is the subject of the current judicial review summons.
Held (NCAT orders set aside, defendant to pay the plaintiff’s costs of the proceedings):
(i) The court considered that cl 5 of sch 4 to the NCAT Act is “fundamental to the case”. It provides that where there are pending court proceedings concerning similar issues in dispute, NCAT has no jurisdiction. The plaintiff submitted that the Member effectively ignored or rejected his submission regarding jurisdiction. On the other hand, the defendant argued that the Member was not aware of the jurisdictional issue and in any event, there was no common issue in either proceeding. On review of the evidence, the Court held that there are common issues between the two proceedings and that it was open to NCAT to inform itself of whatever information was missing and, had the Member done so, they would have noticed the previous assertions of lack of jurisdiction in “attacks on previous termination notices” after all the agitation from the plaintiff about jurisdiction. His Honour held that the bar for continuing jurisdiction of NCAT raised in the hearing concerning cl 5(7) of Sch 4, is applicable in the present case. | Khanna v Bunnings Group Limited (No 2) [2025] NSWSC 677 27 June 2025 – McHugh JA
In sum: The plaintiff’s summons seeking judicial review of decision in NCAT was dismissed by the Supreme Court in March 2025 with costs. The defendant had indicated that, if they were successful, they would seek a gross sum costs order. The figure nominated was more than $25,000 (said to be 60% of total costs incurred by the defendant). The defendant submitted that a gross sum costs order was necessary, given the conduct of the plaintiff who has “indicates a willingness to seek to relitigate determined issues in a cost prohibitive and meritless manner”.
Held (Gross sum costs order made in favour of the defendant):
(i) The plaintiff argued that the defendant’s proposed order was “punitive” and “unjust” because he is on a disability pension and cannot afford the financial burden. The defendant contended that the conduct of the plaintiff warranted an order, and successfully argued that, should he proceed with a notice of motion for reconsideration, he must file a second document outlining why the matter should not be summarily dismissed as vexatious or an abuse of process: citing Teoh v Hunters Hill Council (No 7) [2012] NSWCA 356 and Wang v State of New South Wales (No 3) [2020] NSWCA.
(ii) The Court found that the material was insufficient concerning the formula at which the defendant arrived at the gross sum. There was no breakdown of costs, nor a memorandum of fees. In the discretionary power of the court to order costs, McHugh JA considered that a fair and reasonable number of hours in this case was 40 hours for the special counsel with day-to-day carriage of the matter and 8 hours for the partner supervising. At the rates deposed in the affidavit of the defendant’s solicitor, and including counsel’s fees, the appropriate gross sum costs order was $14,614.50 instead of assessed costs. | Della Bruna v Health Care Complaints Commission [2025] NSWCA 105 16 May 2025 – Bell CJ, Kirk JA, Adamson JA
In sum: These proceedings concerned an appeal from a decision of NCAT in “Stage 1” proceedings brought by the Health Care Complaints Commission (the Commission) regarding allegations against Dr Albina Bella Bruna constituting unsatisfactory professional conduct and professional misconduct. The majority of the tribunal found that she had engaged in professional misconduct. The appellant succeeded on all three grounds of her appeal, with a majority of the Court of Appeal finding that Members did not give legally adequate reasons, procedural fairness had been breached in a material manner in the finding that the doctor's objectivity was inhibited by financial pressure when it was not alleged as part of the Commission’s case and in material findings of fact that were contrary to contemporaneous clinical records.
Facts: The appellant (Dr Albina Bella Bruna) prescribed and dispensed human growth hormone (HGH) “off-label” to ten patients in the period between June 2017 to November 2019 for reasons said to be connected to fatigue and ageing. The Commission brought a complaint to the Occupational Division of NCAT alleging that this conduct, together with unsatisfactory record keeping, constituted unsatisfactory professional conduct and professional misconduct. The Commission filed an “Amended Complaint”, which was before the Tribunal and provided a letter with further particulars of the complaint in response to a request from the appellant. The majority was comprised of the two Senior Members of the Tribunal, who are doctors, along with a General Member (the Majority). The Majority found the appellant guilty of professional misconduct. The Presiding Principal Member dissented and would have found the appellant guilty of unsatisfactory professional conduct only. The “stage 2” hearing for remedial orders is yet to take place.
The appellant raised three main issues on appeal, namely then she was denied procedural fairness in the finding of the Majority that her objectivity was compromised due to financial pressure to turn over her stock of HGH when that was not part of any particularised complaint and had not been put to her, that the Majority erred in rejecting her oral evidence and, that the Majority erred in finding that she did not seek blood tests to measure levels of the patients she prescribed the HGH.
Held (Granting leave, allowing the appeal and remitting the matter to differently constituted tribunal):
(i) On the first main issue on appeal, the Court (Bell CJ and Kirk JA, Adamson JA dissenting) held that the Majority erred, and breached the requirements of procedural fairness in a material manner, by finding that the appellant’s objectivity was inhibited by a financial pressure to dispose of her HGH stockpile. This was not alleged as part of the Commission’s case in either the amended complaint, or the further particulars letter. There was, at best, some vague and speculative wave towards there being some financial motivation of an unstated kind in the further particulars letter (at [39]). Conversely, Adamson JA found that the majority did not err as the Commission’s case was sufficiently particularised and the issue was squarely raised in cross-examination and consequently, the appellant was provided with the “forensic opportunity” in re-examination to give evidence in response to the allegations.
(ii) On the second issue, Bell CJ and Kirk JA found that the majority erred by failing to provide adequate, intelligible or logical reasons for why the appellant’s oral evidence was rejected and also failed to exercise jurisdiction insofar as it did not grapple with a substantial and clearly articulated aspect of the appellant’s case. The fact that the appellant conceded that her record-keeping was substandard did not, in itself, provide a rational reason to reject her evidence as to the nature and context of her consultations where there were no contemporaneous records. In dissent, Adamson JA held that the majority’s reasons, on a fair reading and noting that the Majority reasons “do not conform to the usual verbiage used by trial judges,” were sufficient to indicate that the Majority did not apply a blanket rule, rather than engaging in orthodox fact-finding. Her Honour found that the Majority did not accept the appellant’s evidence only regarding particular consultations, and therefore the reasons adequately dealt with all aspects of the appellant’s case.
(iii) In relation to the third issue concerning the Majority’s finding of fact that, contrary to contemporaneous clinical records, the appellant did not test levels in or monitor patients whom she prescribed HGH, Bell CJ and Kirk JA found that the Majority’s erroneous finding was material to its reasoning process. The clinical records contradict the Majority’s findings and there was no analysis of the adequacy of testing done. In dissent, Adamson JA found that the Majority did not make such errors and was careful to find that, although the appellant conducted testing and monitoring, she did not do so for the specified purpose or at the required times.
(iv) The Court clarified that, although there was no ground relating to how NCAT directed itself as to the meaning of professional misconduct, and remarked that the approach relied on the standard articulated by Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200, which related to a previous statutory scheme with different criterion. Their Honours Bell CJ and Kirk JA observed that “professional misconduct” is defined in s 139E of the Health Practitioner Regulation National Law 2009 (NSW) and “[i]t means, in short, unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration (which can be established by the cumulative effect of more than one instance of unsatisfactory professional conduct)”: at [5]. The Court warned against relying on past caselaw that expresses different standards in considering whether a medical practitioner has engaged in professional misconduct, noting that NCAT’s reasons did not consider the criterion of professional misconduct set out in s 139E. | Simich v Chief Commissioner of State Revenue [2025] NSWSC 559 30 May 2025 – Hmelnitsky J
In sum: The plaintiff contended that her property, being a four-storey unoccupied residence which was under construction with the ground floor designated for commercial use (and which she intended to keep vacant), fell within the principal place of residence exemption from land tax. At first instance, NCAT found that the exemption did not apply in circumstances where the intention to leave designated commercial spaces vacant was unlawful. An Appeal Panel found that there was no error of law and dismissed the plaintiff’s appeal on the same basis. On appeal, the Supreme Court found that in light of an agreed position between the parties, it was appropriate for the Tribunal to proceed on the basis that any use of the commercial spaces, including leaving them vacant, would be unlawful if that use (leaving them vacant) was for residential purposes. The appeal was dismissed.
Facts: In December 2020, the plaintiff purchased a parcel of land subject to an existing development consent for “demolition of existing buildings and construction of a new three to four storey building shop top housing development”. In accordance with the development consent, she commenced the construction of a four-storey residence on the land, with spaces on the ground floor separately designated for commercial use, residential use and for mixed commercial/residential use. She intended that the commercial spaces, although required to be constructed by the relevant planning approval, would be left vacant.
For the 2021 and 2022 land tax years, during the period in which construction was underway but while the land was otherwise unoccupied, the plaintiff was assessed to pay land tax. The plaintiff objected on the basis that she was entitled to the principal place of residence exemption in cl 6(1) of Sch 1A to the Land Tax Management Act 1956 (NSW) (LTMA). On review, NCAT accepted that the intention was to leave the commercial spaces vacant, satisfying the primary requirement of cl 6(1), however affirmed the decision of the respondent, holding that the intended use was unlawful as the “intention to leave them vacant amounted to an intention to use them for residential purposes”. NCAT also rejected the defendant’s argument that amendments to the Local Environment Plan in December 2021 applied to the plaintiff’s development, confirming that the commercial space could be vacant. An Appeal Panel refused leave to appeal and dismissed the appeal.
Held (Leave to appeal was granted with respect to ground 4 and the appeal was dismissed):
(i) Regarding leave to appeal, the Court noted the relative triviality of the dispute in consideration that, now that the premises is occupied, the issue of land tax is limited to the 2021 and 2022 assessment years. Nevertheless, in relation to the question of whether the Appeal Panel correctly understood and applied cl 6(2)(c) of Sch 1A to the LTMA in dealing with the appeal to it, “is sufficiently novel and of sufficient general application (at least potentially) that leave to appeal is warranted”.
(ii) The problem with framing the cl 6(2)(c) question in the terms stated, namely, “is the use of the premises solely for residential purposes lawful?”, is that land may be used ‘for residential purposes’ in any number of ways. The Court noted that “it may or may not have been unlawful for those spaces to be occupied by leaving them vacant regardless of whether this was done ‘for residential purposes’”. In this case, the Supreme Court held that it was appropriate for the Tribunal to approach the cl 6(2)(c) issue in the way it did because the plaintiff did not resile from the agreed “fact” that the commercially zoned areas of the property could not be lawfully used for residential purposes but did not do so. His Honour held that the Appeal Panel was entitled to proceed “on the basis that any use of the commercial spaces, including a use that involved leaving them vacant, would be unlawful if that use was for residential purposes.” | Visscher v Safework NSW [2025] NSWSC 489 19 May 2025 – McHugh JA
In sum: The plaintiff erected a scaffold at his home under an owner-builder permit. A SafeWork Inspector issued a prohibition notice concerning the scaffold in December 2020. Instead of complying, he challenged the notice through internal and external reviews under the Work Health and Safety Act 2011 (NSW), both of which were dismissed. After the Full Bench refused leave to appeal, the plaintiff sought judicial review in the Supreme Court. The Court dismissed the case with costs, finding no jurisdictional error by the Commissioner, noting that even if there were legal errors, they would be within jurisdiction, rather than a jurisdictional error. The Court also noted, but did not resolve, the arguable issue of whether the site was a “workplace” under the Act.
Facts: The plaintiff was building a house pursuant to an owner-builder permit. For that purpose, he had erected a scaffold at the front of the house. In December 2020, a SafeWork NSW Inspector issued an oral direction to stop work (confirmed in a written prohibition notice (PN)) until the plaintiff could demonstrate that the scaffold was compliant and built by a competent person. Instead of complying, the plaintiff challenged the Inspector’s authority to issue the PN by way of an internal review under s 224 of the Work Health and Safety Act 2011 (NSW) (WHS Act) and then an external review under s 229 of the WHS Act, where Commissioner McDonald dismissed the external review and confirmed the internal review. The matter was then appealed to the Full Bench of the Commission who declined leave to appeal the decision in June 2024. The plaintiff then applied to the Supreme Court for judicial review of Commissioner McDonald’s decision.
Held (Dismissing the summons with costs against the plaintiff):
(i) The first issue was whether the plaintiff was subject to the WHS Act at all, as the construction site was at his house, and he was not conducting a business or undertaking that would constitute a “workplace” subject to the WHS Act under ss 8 and 195. The powers in s 195(1) to issue a PN concern what “an inspector reasonably believes” however the parties proceeded on the footing that a “workplace” is determined objectively. The Court noted that it is “at least arguable that that was not the correct approach” however neither party pursued the issue, and it was not clear that a different approach would have resulted in a different outcome.
(ii) The second issue was whether the Commissioner fell into jurisdictional error such that the decision, in purported exercise of the power in the WHS Act (s 229), was invalid. The Court noted that “the Commissioner is not to be equated with a mere administrative tribunal which falls into jurisdictional error whenever it identifies a wrong issue, asks itself a wrong question, ignores relevant material, or relies on irrelevant material” but that “[n]ot every error of law or misinterpretation or misapplication of statute by the Commissioner will be jurisdictional.” To this end, it has significance by s 175 of the Industrial Relations Act, “Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument).” The Court traversed the grounds of appeal and dismissed the summons, holding that questions of construction and application of the WHS Act were questions within the jurisdiction of the Commissioner in conducting the external review such that “even if the Commissioner had asked herself the wrong question, that would be an error within jurisdiction” and therefore there was no jurisdictional error. | | Court of Appeal of Victoria | Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94 6 May 2025 – Beach, Kennedy JJA, J Forrest AJA
In sum: The applicant sued the manufacturer of a septic tank system, alleging that a missing part (an aerator arm or shaft) caused him to suffer recurring Helicobacter Pylori (HP) infections and other harm due to improper installation and maintenance. While representing himself at the hearing, he presented his own evidence and that of a friend. The judge informed the applicant that his evidence needed to cover all aspects of his case, however the applicant did not call the witness who installed the system as he had planned to cross-examine them when the respondent called them. However, at the conclusion of the applicant’s case, the respondent successfully argued there was no case to answer, as the applicant failed to prove that the missing part caused his illness. The judge upheld the no case submission and ruled in favour of the respondent. The appeal was allowed on grounds of procedural fairness. The Appeal Panel found that the instructions given to the applicant were insufficient, and that there was a real chance the outcome may have been different if the judge had raised an alternative causation provision, one the applicant could have relied on but was unaware of.
Facts: The applicant arranged for the installation of a septic tank system on his property. He alleges that this system was missing a part - variously described as an ‘aerator arm’, or ‘aerator shaft’ - which caused him to suffer recurrent HP infections, sickness, loss and damage. The applicant brought a case in negligence and contract against the manufacturer of the septic tank system in the County Court. He alleged that the system was improperly installed and maintained. By the time the matter came to trial, the applicant was self-represented. He gave evidence himself. He also adduced evidence from his friend, Ms Berry, who assisted him at the trial. However, at the conclusion of this evidence, the respondent made a no case submission on the basis that the applicant could not prove his case in respect of causation. More particularly, that he could not prove that the fitting of the aerator arm would have averted his injury. The judge upheld the no case submission and gave judgment for the respondent.
Held (Granting leave to appeal, allowing the appeal, and remitting the matter):
(i) The applicant sought leave to appeal, arguing the judge failed to assist him as a self-represented litigant. The judge at first instance explained the “ground rules” at the commencement of the hearing, including that he needed to give “all [his] evidence” which was required to cover “all aspects” of his case. Their Honours held that “such a statement should also include a statement to the effect that, at the conclusion of a plaintiff’s case, a defendant will have a decision about whether they call evidence or not. If a defendant calls witnesses, then a plaintiff will be entitled to cross-examine those witnesses, but if they do not, then the plaintiff will not have such an opportunity, and the evidence will be finished at the conclusion of a plaintiff’s case” (at [79]).
(ii) The applicant also argued that the judge wrongly upheld a no case submission without considering or applying s 51(2) of the Wrongs Act 1958 (VIC), which allows consideration of whether, despite not satisfying the “but for test”, it can be shown that the respondent’s conduct materially contributed to the applicant’s harm however it cannot be shown to have been a necessary condition of its occurrence. The only question argued by the respondent on the no case submission was the applicant’s failure to establish a causal link between his HP infection and the operation of the septic system. The medical evidence concluded that it was conceivable that the exposure and acquisition of HP occurred when he was working around the sewage, which was not appropriately treated. The applicant argued that it was not procedurally fair that s 51(2) was not brought to his attention, given that the section was potentially engaged. The Court stated that this may place too high a burden on a judge who “clearly carried out his task conscientiously and diligently”; however, consideration of the section may have made a real difference to the applicant’s case. In the circumstances, the Court held that it was appropriate for the judge to explain the terms of s 51, however it was not part of the trial judge’s tasks to explain how to then engage that provision. | | 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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