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| | | NCAT Legal Bulletin Issue 4 of 2021
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| 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 New South Wales Court of Appeal and the Supreme Court of New South Wales, including: - Medical Council of New South Wales v Smithson [2021] NSWCA 53 - In which the Court of Appeal allowed the appeal of the appellant, a psychiatrist, and remitted the matter to the Civil and Administrative Tribunal, because the Tribunal had failed to apply the correct legal standards.
- DEJ v Council of the New South Wales Bar Association [2021] NSWCA 72 - In which the Court of Appeal dismissed the appeal of a barrister who sought to appeal the decision of the Tribunal, which found him guilty of professional misconduct and ordered his name to be struck from the roll.
- Choi v NSW Ombudsman [2021] NSWCA 68 - In which the Court of Appeal allowed the application of the applicant who sought judicial review of the decision of the NCAT Appeal Panel to dismiss her proceedings against the respondent. The Court found that the applicant’s guardian ad litem had not been properly appointed according to the statutory requirements, and remitted the matter to the Tribunal.
- Jan v Health Care Complaints Commission [2021] NSWSC 350 - In which the Supreme Court allowed the appeal of a dental practitioner and remitted the matter to the Tribunal for rehearing, due to the fact that the Tribunal had not directly addressed whether conditions on the practitioner’s registration could mitigate the risk he posed of reoffending.
- NSW Land and Housing Corporation v Simeon [2021] NSWSC 325 - In which the Supreme Court refused leave to appeal from a decision of the NCAT Appeal Panel, which had granted a stay of an application for a termination order in relation to a residential tenancy agreement between the parties. The termination was sought on the basis of drug related conduct of the tenant, and the Appeal Panel granted the stay in order to prevent prejudice against the tenant in his defence of criminal charges.
This issue also provides links to a number of summaries published separately by the NSW Court of Appeal Decisions of Interest Bulletin.
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New South Wales Court of Appeal
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| Medical Council of New South Wales v Smithson [2021] NSWCA 53
8 April 2021 - Payne JA, Simpson AJA and Garling J
In sum: The Court of Appeal allowed the appeal of the appellant, a psychiatrist, and remitted the matter to the Civil and Administrative Tribunal, because the Tribunal had failed to apply the correct legal standards.
Facts: The respondent (Dr Smithson) had his registration as a psychiatrist suspended by the appellant (the Council) under s 150(1) of the Health Practitioners Regulation National Law (the National Law), due to potential illicit drug use. Dr Smithson appealed under s 159 of the National Law, which requires a new hearing. The Tribunal upheld Dr Smithson’s appeal. The Council then appealed on the basis that the Tribunal failed to apply the legal standards set out in the National Law, and misunderstood the nature of its statutory task. Dr Smithson conceded that the Tribunal erred in applying the correct legal test and the parties jointly sought to appeal the Tribunal’s decision ([2]-[3], [7], [14]-[16]).
Held (allowing the appeal and remitting the matter to NCAT):
(i) The Court held that Dr Smithson’s concession of error was correctly made and should be accepted. The orders proposed by the parties were also accepted, subject to some modifications ([18]).
(ii) The Tribunal was required by s 159 to stand in the shoes of the Council in a de novo hearing. In such a hearing, the legal standard to be applied is that in s 150. The first limb of this provision regards health and safety, and the second limb deals with the general public interest. The limbs are to be dealt with separately, though there is some overlap. The Tribunal considered neither ([20(1)-(2)], [28]).
(iii) The Tribunal proceeded, at least in part, on the misapprehension that it was conducting a review of the Council’s decision. The Court found that, on a s 159 appeal, principles of judicial review of administrative decisions are irrelevant to the Tribunal’s functions, and serve as a distraction from its proper task ([20(1)-(4)], [39]-[40]).
(iv) Because s 150 contemplates that a practitioner’s registration may be suspended in circumstances where relevant questions of fact may remain in dispute, the Tribunal is not required to make conclusive findings of fact, or to finally determine the merits of a matter. Consideration of whether a practitioner is a “fit and proper person” is irrelevant to s 150. This question may arise at a later stage, should disciplinary proceedings against the respondent be taken ([20(5)-(6)], [30]).
(v) The Tribunal was required to consider whether, on the evidence before it, it was appropriate to make an order suspending the practitioner’s registration under either limb of s 150. The essential question of the s 150 hearing was whether there existed an unacceptable risk to the health and safety of the public, or otherwise an unacceptable risk to the public interest, in allowing the practitioner to continue to practise ([20(7)-(9)], [27], [34]).
Read the decision on the NSW Caselaw website.
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| DEJ v Council of the New South Wales Bar Association [2021] NSWCA 72
28 April 2021 - Macfarlan, Meagher and White JJA
In sum: The Court of Appeal dismissed the appeal of a barrister who sought to appeal the decision of the Tribunal, which found him guilty of professional misconduct and ordered his name to be struck from the roll.
Facts: In October 2012 the respondent (the Bar Council) imposed upon the appellant barrister’s practising certificate 11 conditions directed to ensuring the appellant would discharge his ongoing tax liabilities. The appellant failed to meet these conditions and during an investigation by the Bar Council, the appellant represented to the Bar Council that he owned a half share in a property, and that if he was unable to arrange a loan to pay off his outstanding tax liabilities he would sell that property to discharge that debt. The Bar Council commenced disciplinary proceedings at the Tribunal, during which the appellant swore an affidavit that he had transferred his share of the property to his wife in 1996, and she was the sole owner of it ([7]-[11], [14]).
The Tribunal found the appellant guilty of professional misconduct and ordered that his name be removed from the roll of lawyers. This was on the basis that: the appellant had contravened the practising conditions and did not have a “reasonable excuse” for doing so due to any psychiatric condition; his representations in a June 2017 affidavit that his wife was the sole owner of the property were knowingly false at the time they were made; and by selling the property in December 2016 and not applying the proceeds of the sale to discharge his tax liabilities, he acted contrary to the representation he had made to the Bar Council ([15]-[17], [20]).
The appellant appealed on the basis that: (i) the Tribunal erred in finding that the appellant’s psychiatric condition did not provide a “reasonable excuse” for the contraventions of his practice conditions under the now repealed Legal Profession Act 2004 (NSW), s 73(1); (ii) the Tribunal erred in finding that the appellant’s statements in his June 2017 affidavit that his wife was the sole owner of the property were knowingly false; (iii) the appellant’s conduct in not applying or seeking to apply the proceeds of sale of the property to discharge his tax liability constituted professional misconduct; and (iv) the order removing the appellant’s name from the roll of lawyers should be set aside in the event that he succeeds on the above grounds of appeal ([21]-[23]).
Held (dismissing the appeal):
(i) Onus for proving the appellant contravened the conditions on his practising certificate “without reasonable excuse” was borne by the Bar Council. The expert medical evidence showed that the appellant suffered from a psychiatric condition, but did not establish that the condition ultimately caused or contributed to his non-compliance with the conditions. The appellant’s non-compliance arose because he failed to manage his financial affairs in a way that allowed him to meet his tax liabilities. The findings of fact as to the cause of the appellant’s non-compliance made by the Tribunal were likely based on its impression as to the credibility of witnesses, and were not glaringly improbable. In making these findings, the Tribunal was not bound to accept the opinion evidence of the psychiatric experts ([2]-[5], [24], [123]-[124]).
(ii) In finding that the statements in the appellant’s June 2017 affidavit were knowingly false, the Tribunal relied on findings as to the purpose of the appellant transferring his share in the property to his wife in 1996. The reasoning involved rejecting evidence of the appellant’s wife in circumstances where the credibility of her evidence had not been contested in her cross-examination. That finding, and the finding that the June 2017 statements were knowingly false, were not open to the Tribunal. Although the Tribunal erred in its findings on this issue, it was not known what the appellant’s wife might have said had she been questioned on this in cross-examination, and the evidence did not point to only one conclusion; therefore the Court was not in a position to make and substitute its own findings ([170], [172], [177]-[181]).
(iii) At the time it was made in September 2014, the appellant’s statement about selling the property to discharge his tax liabilities was not misleading. Between then and when the property was sold in December 2016 the appellant’s circumstances substantially altered, and he had no real prospect of again practising as a barrister. The appellant’s personal circumstances, health, and wife’s opposition to using the funds to pay his tax liability did not excuse his conduct in not using the proceeds of sale to settle his tax liability, but did mitigate the seriousness of his conduct ([188], [190]-[191]).
(iv) The Court’s conclusion on issue (i) meant that the appellant had engaged in professional misconduct. In the conduct the subject of that issue, the appellant showed a flagrant and unacceptable disregard for his statutory obligation to comply with the conditions under s 58 of the Legal Profession Act, and his underlying tax obligations. This justified an order removing his name from the roll. Accordingly, although there were errors in the Tribunal reasoning with regard to issues (ii) and (iii), the disciplinary application was not remitted for further hearing ([140], [185], [193]).
Read the decision on the NSW Caselaw website.
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| Choi v NSW Ombudsman [2021] NSWCA 68
23 April 2021 - Meagher, White and Brereton JJA
In sum: The Court of Appeal allowed the application of the applicant who sought judicial review of the decision of the NCAT Appeal Panel to dismiss her proceedings against the respondent. The Court found that the applicant’s guardian ad litem had not been properly appointed according to the statutory requirements, and remitted the matter to the Tribunal.
Facts: The applicant brought two proceedings at NCAT against the respondent. In October 2018 the Tribunal purportedly appointed a guardian ad litem under s 45 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) for the applicant in proceedings. An accompanying note explained that the person was to be appointed from the “Guardian Ad Litem Panel which is the panel constituted by the secretary of the Department of Justice… An order will be made naming the person appointed when that advice is received from the Guardian Ad Litem Panel.” Shortly thereafter, Dr Johnson was purportedly appointed by the Department’s Office of General Counsel (the Office) as the applicant’s guardian ad litem in the two proceedings.
Dr Johnson then advised the Office that she thought it better that Mr Hoyles, who was already acting as guardian ad litem for the applicant in other proceedings, be appointed guardian ad litem for the applicant in the two proceedings in question. A member of staff wrote on behalf of the Secretary of the Office of General Counsel purporting to confirm Mr Hoyles’ appointment as the applicant’s guardian ad litem. In December 2018 the respondent’s proceedings were dismissed by the Tribunal pursuant to s 55(1)(a) of the NCAT Act, following written notice given by Mr Hoyles’ of the applicant’s withdrawal of the proceedings. The applicant appealed to the Appeal Panel, where the matter was dismissed. She then sought judicial review at the Court of Appeal ([1]-[9], [18], [20]).
Held (granting leave to appeal and allowing the appeal):
(i) In so far as the applicant’s submissions raised questions of law, they could be dealt with on her application for leave to appeal. In so far as they did not raise questions of law, they could not provide a basis for judicial review ([25]-[26]).
(ii) Mr Hoyles was not appointed by a member of the Tribunal, or a registrar exercising delegated power, to act as guardian ad litem. The appointment of “a person”, generally, as guardian ad litem, without nominating the person who is actually appointed, is not an appointment in accordance with s 45 of the NCAT Act. As such My Hoyles was not validly appointed ([42], [44], [45], [56]).
(iii) The Tribunal’s decision was premised on the applicant’s guardian ad litem having given written notice of withdrawal. The Appeal Panel’s decision was made on the erroneous view that there was no arguable basis for challenging the validity of Mr Hoyles’ appointment. Consequently the appeal from that decision was allowed ([59]).
(iv) There was no error in the Tribunal’s reasoning that a person should be appointed as the appellant’s guardian ad litem. There was ample evidence of the applicant’s incapacity to represent herself. Accordingly the matter was remitted to the Tribunal for consideration of the appointment of a guardian ad litem ([30], [49], [61]).
Read the decision on the NSW Caselaw website.
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| Supreme Court of New South Wales
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| Jan v Health Care Complaints Commission [2021] NSWSC 350
8 April 2021 - Leeming JA
In sum: The Supreme Court allowed the appeal of a dental practitioner and remitted the matter to the Tribunal for rehearing, due to the fact that the Tribunal had not directly addressed whether conditions on the practitioner’s registration could mitigate the risk he posed of reoffending.
Facts: The plaintiff was a dentist whose registration was cancelled by the Tribunal in 2016, following four findings of unsatisfactory professional conduct and one finding of professional misconduct, in relation to a sexual and personal relationship the practitioner engaged in with a patient, and related conduct. The plaintiff held himself out to be a registered dentist and continued to practise as a dentist, contrary to s 116(1)(c) of the Health Practitioner Regulation National Law (National Law) ([11]-[13]).
Held (allowing the appeal and remitting the matter to the Tribunal):
(i) It is well established that leave to appeal should be granted liberally in disciplinary proceedings ([4]).
(ii) The Tribunal failed to address whether the risk of reoffending, which was critical to its conclusion, could be addressed by the imposition of conditions. This failure resulted in the decision being affected by legal error, and so it was quashed, and the matter remitted to the Tribunal ([7]).
(iii) It was appropriate for the Tribunal to consider the plaintiff’s character for itself, in the light of the cross-examination, rather than merely relying upon the (limited) expert evidence adduced by the plaintiff. There is an obvious barrier to rehabilitation and insight when a deregistered practitioner takes active and sustained steps to deceive their staff and patients, as the plaintiff continued to do for three and half years, from the time of the complaint to when he changed his name in an attempt to conceal his conduct from his patients and children. Such deception is hard to reconcile with an acknowledgement of wrongdoing and a sincere and genuine attempt to reform ([33], [44]-[46]).
(iv) The plaintiff’s submissions that the Tribunal erred in finding he was not a fit and proper person without addressing whether conditions on his registration may sufficiently mitigate the risk were accepted. The Tribunal has power under s 163B(4) to impose conditions on a registration that is yet to be reinstated ([57], [60]-[62]).
(v) The Tribunal’s assessment of whether the plaintiff was a fit and proper person was closely connected with its evaluation of the risk of reoffending. The Tribunal did not explicitly state that conditions relating to supervision would not address the risk, and the Court could not be satisfied that, had conditions been considered, the Tribunal would inevitably have found in favour of the plaintiff. The plaintiff’s submission to the Tribunal, that the plaintiff could have been reinstated with conditions to mitigate the risk of reoffending, was sufficiently significant to require being addressed in terms by the Tribunal. Though the practitioner’s conduct was very serious and concerning, it was not possible to conclude that no amount of conditions would suffice to reduce the risk of reoffending to an acceptable level. As such, the matter was remitted to the Tribunal ([70]-[75], [78]).
Read the decision on the NSW Caselaw website.
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| NSW Land and Housing Corporation v Simeon [2021] NSWSC 325
1 April 2021 - Basten J
In sum: The Supreme Court refused leave to appeal from a decision of the NCAT Appeal Panel, which had granted a stay of an application for a termination order in relation to a residential tenancy agreement between the parties. The termination was sought on the basis of drug related conduct of the tenant, and the Appeal Panel granted the stay in order to prevent prejudice against the tenant in his defence of criminal charges.
Facts: The appellant landlord sought to terminate the residential tenancy agreement between it and the respondent tenant, on the basis of drug-related conduct. The Tribunal terminated the tenancy. On appeal by the tenant, the Appeal Panel set aside this decision and ordered a stay of proceedings in order to prevent prejudice to the tenant in his defence of criminal charges for that same conduct. The appellant appealed on the basis that a non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) could sufficiently resolve the issue of potential prejudice. It also suggested the Tribunal had misapplied the principles in the statutory context ([1]-[2]).
Held (dismissing the motion and refusing leave to appeal):
(i) The respondent’s submission that, as there is no longer a stay in place, the criminal proceedings having been completed, the appeal lacks utility, should be accepted. Leave to appeal was refused on that basis ([7]).
(ii) The appellant argued that there was a public interest in the proceedings, in order to protect vulnerable neighbours to the property where criminal activities were taking place, and in order to make progress in the long waiting lists of vulnerable people who required public housing. However the appellant’s actions did not reflect such a public interest, making no steps to expedite the application for leave to appeal for a significant time, and having delayed the process in by seeking an adjournment which delayed the appeal by a further five months ([9]-[10]).
(iii) The appellant relied on observations by the High Court that a public housing authority might terminate a lease on the grounds of the premises being used for an unlawful purpose, notwithstanding that the tenant had not been convicted of any offence arising out of that unlawful use: Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7. However that statement did not expressly deal with circumstances where the tenant was already the subject of outstanding criminal charges ([11]-[12]).
(iv) The decision not to allow litigation on the potential for a non-publication order under s 64 of the NCAT Act was due to the complexity of the proper construction and operation of the provision. The issue was not considered below, and the Court found that an appeal limited to a question of law was an inappropriate vehicle for such litigation ([19]).
Read the decision on the NSW Caselaw website.
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| | Decisions of Interest Bulletin
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| | Medical Council of New South Wales v Smithson [2021] NSWCA 53
ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – appeal under Health Practitioner Regulation National Law (NSW) s 159 against decision of Council under s 150 – hearing de novo – essential task of the Tribunal in such an appeal – error conceded – remittal of matter to the Tribunal |
| Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56
WORKERS COMPENSATION – compensation for non-economic loss – determining degree of permanent impairment – worker suffered injuries to shoulder and spine in an incident and suffered further injuries to spine in later incidents – whether WPI resulting from injuries should be aggregated – injuries from first incident materially contributed to injuries in later incidents – all injuries “resulted from” and “arose out of” first incident
WORKERS COMPENSATION – proceedings before Commission – appeal against decision of presidential member in point of law – whether presidential member erred in construing s 322(2) and (3) of Workplace Injury Management and Workers Compensation Act 1998 – error of law established and issue in question potentially a matter of some significance – leave to appeal granted
STATUTORY INTERPRETATION – presumption from amendment – whether absence of amendment indicates considered choice of legislature to adopt a certain interpretation – artificial and unpersuasive to attribute to Parliament a consciousness of the judicial interpretation contended to have informed the relevant amendments |
| Woodhouse v Fitzgerald [2021] NSWCA 54
TORTS – negligence – duty of care – scope of duty of landowner to neighbouring landowner for fire – vicarious liability – non-delegable duty – controlled burn by Rural Fire Service on private land – reignition and spread of undetected fire – damage to neighbouring property – RFS with statutory immunity to liability – RFS exercised reasonable care – whether landowner liable
TORTS – nuisance – private nuisance – controlled burning – whether controlled burning can constitute private nuisance – whether strict liability
TORTS – property damage – apportionable claim – concurrent wrongdoers – whether a party with statutory immunity can be a concurrent wrongdoer
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| Guan v Lui [2021] NSWCA 65
AGENCY — Property, Stock and Business Agents Act 2002 (NSW) — where person performs services without real estate agent licence — whether services performed as “real estate agent”
STATUTORY INTERPRETATION — Property, Stock and Business Agents Act 2002 (NSW) — definition of “real estate agent” — meaning of phrase “as an agent” |
| Manly Fast Ferry Pty Ltd v Wehbe [2021] NSWCA 67
COURTS AND JUDGES – procedural fairness – judicial intervention – where expert witness conclave conducted via audio visual and audio link – whether excessive judicial questioning of experts – whether real danger that trial was unfair – whether the trial miscarried
DAMAGES – assessment of damages in tort – personal injury – where respondent suffered injury to left knee when ferry collided with wharf – whether respondent suffered compensatory injury to right knee by favouring left – whether primary judge erred in awarding damages for injury to respondent’s right knee
EVIDENCE – expert evidence – where competing medical evidence – whether primary judge substituted own medical opinion for that of the expert
DAMAGES – assessment of damages in tort – personal injury – where respondent could no longer perform certain house maintenance tasks – where those tasks carried out by respondent’s brothers – whether primary judge erred in awarding respondent damages for commercial domestic assistance |
| Lahey Constructions Pty Ltd v The State of New South Wales [2021] NSWCA 69
CONTRACT – building and construction contracts – interpretation – expert determination clause – whether expert determination is final and binding – where parties’ precluded from commencing litigation following expert determination unless value of the determination exceeded a threshold amount – where value of the determination to be calculated without having regard to amounts paid under the Building and Construction Industry Security of Payment Act 1999 (NSW) |
| | 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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