NCAT Legal Bulletin Issue 4 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 of the High Court of Australia, the New South Wales Court of Appeal, the Supreme Court of New South Wales, the Supreme Court of Victoria and the Federal Court of Australia published in July and August 2025. | State of New South Wales v Paulina Wojciechowska & Ors [2025] HCA 27: The High Court unanimously allowed an appeal from the NSW Court of Appeal. The issue was whether NCAT, when ordering damages under s 55(2)(a) of the Privacy and Personal Information Protection Act 1998 (NSW), exercises judicial power. If so, NCAT would lack jurisdiction. The Court held that such orders fall within NCAT’s administrative review jurisdiction, and the legislative scheme indicates against any exercise of judicial power. The question was answered in the negative.
| SY v Public Guardian [2025] NSWCA 148: The Court of Appeal refused leave to appeal orders made in the Supreme Court dismissing the applicant’s amended summons seeking review of orders made by NCAT to appoint the Public Guardian instead of SY. The applicant’s submissions largely repeated arguments rejected below, raised no issue of principle or public importance, and the challenged orders were subject to NCAT review within three months, allowing the applicant to re-agitate his position.
| Council of the Law Society of New South Wales v Sideris [2025] NSWCA 159: On NCAT’s recommendation under s 23(1)(c) Legal Profession Uniform Law (NSW), the Court ordered the removal of George Sideris from the Roll of Australian Lawyers. Mr Sideris was found guilty of professional misconduct for breaches of rr 4.1.2 and 33 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW). The Court held he was not a fit and proper person, noting his lack of insight, grossly discourteous and offensive correspondence, and false statements to avoid service of documents.
| State of New South Wales v Culhana [2025] NSWCA 157: In an appeal from the NSW Personal Injury Commission, the Court clarified the effect of 2011 amendments to s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The Court found that the interpretation of these amendments took an immediate wrong turn such that appeals may have been wrongly dismissed. Leeming JA concluded that, in context, the inclusion of “limited” in the amendments does not restrict the breadth of an appeal; rather s 352(5) provides that an appeal is by way of rehearing, not a hearing de novo.
| Gaynor v Burns [2025] NSWCA 170: Mr Gaynor filed a notice of appeal a decision of the Supreme Court without seeking leave on the basis that he does not require leave because the appeal involves a matter amounting to the value of $100,000 or more under s 101(2)(r) of the Supreme Court Act 1970 (NSW). The relief sought below included an apology and charitable payments up to $100,000. The Court held that under s 101(2)(r) leave was required because the maximum potential liability was found to be approximately $98,000 (as there was no realistic prospect of an order to pay money to charity) and as such, the relief was below the jurisdictional threshold of $100,000. As leave was not sought, the appeal was found incompetent and dismissed.
| Gaynor v Burns (No 2) [2025] NSWSC 885: The plaintiff sought to set aside a costs order under r 36.16(1), (3A) Uniform Civil Procedure Rules 2005 (NSW). The order had been made in favour of the fourth defendant, the sole contradictor and an intervener. The plaintiff submitted that each party should bear their own costs because the fourth defendant was an intervener, however the authorities relied on by the plaintiff did not assist his case as they involved costs awarded to interveners. Adams J dismissed the motion, holding that the fourth defendant played an important role, was the only contradictor, and did not engage in conduct warranting departure from the usual order.
| Ioannis Xenidis v Owners Corporation Plan No. PS318104R [2025] VSC 462: Despite orders requiring the applicant to “send” submissions (rather than file a single document), the Victorian Civil and Administrative Tribunal (VCAT) did not consider several of the appellant’s emails in relation to costs. On appeal, the Supreme Court held that it was necessary for VCAT to consider all of the emails sent by the applicant to accord him procedural fairness, noting practical difficulties but confirming VCAT may direct parties to file a single document for submissions for litigants who send numerous emails.
| Scott v Steritech Pty Ltd [2025] FCAFC 110: Despite settling proceedings arising out of similar facts by way of a deed of release in 2019 barring future proceedings against the respondent (with a carve out for workers’ compensation and superannuation law claims) the appellant commenced new proceedings in 2022 alleging different contraventions of the Fair Work Act 2009 (Cth) (FW Act) and a claim for damages in negligence. The primary judge dismissed the case as barred and an abuse of process. On appeal, the Full Federal Court dismissed the FW Act claim but held that the primary judge had fallen into error in concluding the Court lacked jurisdiction to hear the negligence claim because there was no proper basis to find the claim “invalid”.
| Anderson v Morgan Crest Pty Ltd trading as Ray White Benalla [2025] FCA 817: The Federal Court upheld an appeal against refusal of adjournment by the Federal Circuit and Family Court. The appellant had been evicted two days before hearing and lacked access to documents. The Court found that the refusal of the adjournment application was a denial of procedural fairness as primary judge overlooked the need to maintain public confidence and gave ex tempore reasons never published. Although the appellant’s claim was weak, a properly conducted trial could have produced a different result.
| | | State of New South Wales v Paulina Wojciechowska & Ors [2025] HCA 27 6 August 2025 – Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
In sum: The High Court of Australia unanimously allowed an appeal from a decision of the NSW Court of Appeal where the determinative question was whether, in making an order under s 55(2)(a) of the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act) that a public sector agency pay to an applicant damages by way of compensation for any loss or damage suffered as a result of conduct in contravention of an information protection principle specified in ss 8-19 of the PPIP Act, NCAT exercises judicial power. An affirmative answer would have the consequence that NCAT did not have jurisdiction to order damages due to limitations on the legislative capacity of a State Parliament to confer on a State tribunal, that is not a court, with judicial power with respect to any matter described in ss 75 or 76 of the Constitution having regard to the case of Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10. The High Court found that the application for internal review involves NCAT’s “administrative review jurisdiction” and each key aspect of the relevant legislation indicates against any exercise of judicial power. The determinative question was answered in the negative.
Catchwords: Constitutional law (Cth) – Judicial power of Commonwealth – Where resident of Tasmania sought administrative review of decisions made on behalf of Commissioner of New South Wales Police Force – Where New South Wales Civil and Administrative Tribunal ("Tribunal") made order under s 55(2)(a) of Privacy and Personal Information Protection Act 1998 (NSW) – Where order that public sector agency pay applicant damages by way of compensation for any loss or damage suffered as a result of conduct in contravention of information protection principle – Where Tribunal not "court of a State" within meaning of ss 77(ii) and (iii) of Constitution – Where State Parliament lacks legislative capacity to confer on State tribunal that is not court of a State judicial power with respect to any matter in s 75 or s 76 of Constitution – Where s 75(iv) of Constitution refers to "matters ... between a State and a resident of another State" – Whether Tribunal exercised judicial power – Whether Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 distinguishable.
Words and phrases: "administrative power", "administrative review", "administrative standards", "administratively reviewable decision", "certificate", "compensation", "correct and preferable", "court", "damages", "distinguishable", "information protection principles", "internal review", "judgment", "judicial decision", "judicial power", "jurisdiction", "legislative capacity", "loss or damage", "matter", "non-judicial", "norm of conduct", "order", "privacy codes of practice", "public sector agency", "resident of another State", "tribunal".
Constitution, ss 75, 76, 77(ii), 77(iii).
Administrative Decisions Review Act 1997 (NSW), ss 6, 7, 8, 9, 53, 63, 64, 66.
Civil and Administrative Tribunal Act 2013 (NSW), ss 13, 27(1)(a), 38, 72, 78.
Privacy and Personal Information Protection Act 1998 (NSW), ss 3(1), 8-19, 21, 29, 30, 32, 52, 53, 55(1), 55(2)(a), 55(3), 55(4A), 69.
Held (Unanimously allowed the appeal):
(i) Link to the High Court’s case summary is here. | Court of Appeal of New South Wales | SY v Public Guardian [2025] NSWCA 148 8 July 2025 – Leeming JA; Adamson JA
In sum: The Court of Appeal refused leave to appeal orders made by Lindsay J in the Supreme Court on 24 December 2024 dismissing the applicant’s (SY or the father) amended summons seeking review of orders made by NCAT in its Guardianship Division on 12 April 2024 to appoint the Public Guardian over the father. The father’s challenge to the orders of NCAT were dismissed by Lindsay J, finding that the NCAT decision was correct. The Court of Appeal held that the father’s submissions largely replicated his submissions that were rejected below, he did not identify any issue of principle or question of public importance and the orders which were ultimately sought to be challenged, would be reviewed by NCAT in approximately 3 months from the date of the decision when the applicant could reagitate his application to be appointed as guardian.
Facts: In 2023, VY (the son), was hospitalised in Belgrade, Serbia in a psychotic state. The father commenced proceedings in the Guardianship Division with a view of facilitating the son’s return to Australia (with the father as his carer). On 14 December 2023, NCAT made limited guardianship orders appointing the Public Guardian for four months with the necessary functions to carry out advocacy and health care. On 12 April 2024, NCAT confirmed the Public Guardian as guardian for the son for a period of 18 months. These orders were challenged by the father by filing a summons in the Supreme Court. The father’s desire to be guardian was noted to be a “a product, in part, of his frustration in not being (according to his perception) listed to by public health professionals”. Lindsay J also noted at a directions hearing that the son had informed the Court that he did not need a guardian but that if a guardian were to be appointed, his guardian ought not be his father.
On 24 December 2024, Lindsay J dismissed the father’s summons. His Honour noted that the father’s right to appeal was limited to a question of law unless leave was granted (cl 14(1)(b) of Sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW)), and that no questions were identified nor was leave sought. Nonetheless, it was held that NCAT’s decision was correct because (a) the son is a person in need of a guardian, (b) the son had a strong preference that the father was not to be appointed as his guardian, (c) that the father is not presently a suitable person to be appointed as guardian, noting that, by reason of his own conduct, the father has rendered himself persona non grata with many health professionals and (d) that the father, as his son’s carer, is free to provide information to public health authorities concerning the son’s treatment.
Held (Refusing leave to appeal and making no order as to costs):
(i) The father failed to identify an issue of principle or a question of general public importance. It was clear that the father considers there to be a “reasonably clear injustice” arising from having been passed over as a guardian, however the Court of Appeal held that there was no reasonably clear injustice going beyond what is merely arguable.
(ii) Their Honours considered that the orders of NCAT, which the father ultimately sought to be challenged, would be reviewed by NCAT approximately 3 months after the date of the decision. Section 25(4) of the Guardianship Act 1987 (NSW) requires notice of the review to be served on each party to the proceedings and therefore the father will receive notice of a review, and will be entitled to be heard at that review: GR v Secretary, Department of Communities and Justice [2023] NSWCA 239 [109]-[111] (Adamson JA), [178] (Basten AJA) and [209] (Griffiths AJA). Their Honours noted that if the father wished to re-agitate his application to be appointed as the son’s guardian, he could do so before NCAT, which is empowered to make a decision on the merits. | Council of the Law Society of New South Wales v Sideris [2025] NSWCA 159 18 July 2025 – Bell CJ, Kirk JA, Griffiths AJA
In sum: Under s 23(1)(c) of the Legal Profession Uniform Law (NSW) (LPUL), the Council of the Law Society (the Law Society) sought orders to remove Mr George Sideris from the Roll of Australian Lawyers (the Roll) on the recommendation of NCAT, following the finding that Mr Sideris was guilty of professional misconduct for breaches of rr 4.1.2 and 33 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (Conduct Rules).The Court of Appeal found that Mr Sideris was not a fit and proper person. His breaches of the Conduct Rules were coupled with a lack of insight into his professional shortcomings, and he had engaged in “grossly discourteous, coarse, disrespectful, gratuitously offensive, improperly threatening and wholly unprofessional” correspondence. The Court of Appeal also found that Mr Sideris had made false statements as to his residence to avoid service of the proceedings. An order was made for the name George Sideris to be removed from the Roll.
Facts: Mr Sideris was admitted to the legal profession in New South Wales on 3 July 1987 and held a practising certificate in each year from 13 July 1987 to 30 June 2022. He has not held a practising certificate from 20 October 2022 to the present date. The origin of the application arose from Mr Sideris’s dealings with a solicitor for the Salvation Army in acting for his elderly mother-in-law, who made several requests to direct all correspondence concerning the dispute to the solicitor, as opposed to the Salvation Army directly. Mr Sideris was adamant that his dealings with the Salvation Army were in his capacity as a son-in-law, not as a solicitor. NCAT found that Mr Sideris referred to himself both explicitly and implicitly as a solicitor in his correspondence with the Salvation Army and its solicitor, a finding which the Court of Appeal held “was soundly based”. Throughout the NCAT proceedings Mr Sideris sent a number of emails to the Tribunal’s Registry, the Law Society and Hicksons Lawyers that contained inappropriate and explicit language.
NCAT published two decision concerning Mr Sideris, the first involved the findings of professional misconduct (Stage 1); the second resulted in the Tribunal’s recommendation that the Respondent’s name be removed from the Roll in August 2024 (Stage 2). On 24 August 2024 and shortly after the Stage 2 decision, Mr Sideris sent a message to the President of the Tribunal, Justice Armstrong, and others involved in the proceedings, including an NCAT affiliated email address, to “sincerely apologise”. In September 2024, the Law Society resolved to commence and prosecute proceedings in the Supreme Court, seeking orders that Mr Sideris be removed from the Roll. Mr Sideris insisted on personal service of the Supreme Court documents and asserted that he lived in Filia, Greece, in correspondence with the Law Society.
Held (Mr Sideris was found not to be a fit and proper person to remain on the Roll):
(i) Mr Sideris’s correspondence with NCAT, the Law Society and various others involved in the proceedings in some way, both before and after the NCAT’s decisions, was found to be “grossly discourteous, coarse, disrespectful, gratuitously offensive, improperly threatening and wholly unprofessional”. The Court of Appeal found that the continuation of the inappropriate language and tone rendered Mr Sideris’s “purported apology” as “not worth the paper it was written on” and “utterly hollow and disingenuous”. Much of this correspondence is outlined in the Court of Appeal’s decision at [61]-[92], which it was noted “speaks for itself.”
(ii) When questioned about his assertions that he lived in Greece, Mr Sideris provided a “wholly unsatisfactory answer” that he was born in Greece and that the email should have said that he “lived there”, not that he lives there. The Court of Appeal found that Mr Sideris’ explanation was implausible and that he had made false statements to the Law Society to avoid service. This raised “serious questions” about his fitness to practise.
(iii) The Court of Appeal held Mr Sideris had a “remarkable… complete lack of insight in relation to the serious findings of professional misconduct that had been made against him”. He did not appeal from either the Stage 1 or Stage 2 Decisions (nor did he attend the Stage 2 hearing). While aware of the Tribunal’s decisions, he indicated in the course of the hearing before the Court that he had not read either decision and was “not interested” in doing so.
(iv) The Court of Appeal noted the “great importance of courtesy by and between practitioners” and that adherence to the “no contact rule” is “fundamental to legal practice”. Mr Sideris’ conduct was consistent with either the absence of any understanding of the rule, or wilful defiance of it. There was a lack of insight and genuine remorse from Mr Sideris about his conduct. The Court of Appeal came to the conclusion that Mr Sideris is not a fit and proper person to practise and is likely to be unfit for the indefinite future. | State of New South Wales v Culhana [2025] NSWCA 157 17 July 2025 – Bell CJ; Leeming, Kirk, McHugh, Free JJA
In sum: In an appeal from the Personal Injury Commission (PIC), the Court of Appeal analysed amendments in 2011 to s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act). It was clarified that the interpretation of these amendments took an immediate wrong turn such that appeals may be dismissed where they should be allowed, had the proper tests been applied below. In an analysis of the historical context, Leeming JA concluded that, in isolation from the broader context, the inclusion of the word “limited” might have had the effect of constraining the breadth of an appeal in the PIC, however, in context, amendments to s 352(5) of the WIM Act provide that an appeal is by way of rehearing. The inclusion of the word “limited” is to be understood as reinforcing that the appeal is not by way of a hearing de novo.
Facts: Mr Stockwell was employed by the NSW Police Force between 2003 and 2019 where he was exposed to a series of traumatic events and from which he later developed post-traumatic stress disorder (PTSD). He was then diagnosed with various conditions, including gastroesophageal reflux disease (GORD), Barrett’s oesophagus, and adenocarcinoma, the latter being the immediate cause of his death in November 2022. The de facto partner of Mr Stockwell claimed a workers compensation death benefit, which is payable if death resulted from an injury arising out of, or in the course of, his employment (s 25(1) Workers Compensation Act 1987 (NSW)). The State of NSW disputed liability to make the compensation payment, contesting the proposition that Mr Stockwell's adenocarcinoma, and ensuing death, resulted from his work related injury, being the PTSD.
In the PIC, the Member was satisfied that Mr Stockwell's PTSD materially contributed to his adenocarcinoma, and therefore his death (satisfying s 25). On appeal to a Presidential Member of the PIC under s 352(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act), all three grounds of appeal contended by the State of NSW, being challenges to the evidentiary findings to support the Member’s conclusions below, were rejected.
Prior to 2011, s 352(5) of the WIM Act provided that “[a]n appeal under this section is to be by way of review of the decision appealed against”. From February 2011, amendments meant that appeals ceased to be by way of review. Section 352(5) now relevantly states: “[a]n appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.” Before the Court of Appeal, two issues arose: (i) whether the Acting Deputy President erred in law in applying an erroneous standard of review for an appeal under s 352(5) of the WIM Act; and (ii) whether the Acting Deputy President had erred in law in failing to conclude that the test for causation applied by the member for the purposes of s 25 of the Workers Compensation Act was erroneous.
Held (Dismissing ground 2, allowing ground 1 and remitting the State’s appeal to the PIC):
(i) In 2011 amendments were made to s 352 of the WIM Act. Bell CJ states at [1] of this decision, in agreement with Leeming JA, that the interpretation of the 2011 amendments “took a wrong turn almost from the start” and that this “is a case where the perpetuation of an erroneous interpretation of an important procedural provision should not be permitted.” The Court of Appeal accepted the State’s submissions that the 2011 amendments had been misunderstood in subsequent decisions resulting in “an unduly narrow test” of whether the finding was “open” or “available” to the Commission constituted by a Member. Rather, it was submitted that the Presidential Member should determine factual challenges based on a review of all the evidence, having regard to the advantages enjoyed by the Member. Leeming JA held that the 2011 amendments do not support “a level of deference to the judge or decision-maker at first instance which never commanded the full support of the High Court” and that “it is intolerable for future appeals in workers compensation matters to be dismissed when they should be allowed if the proper test were applied.” An analysis of the historical context reveals that that the 2011 amendments were intended “to make clear that the appeal for which s 352 provides is an appeal by rehearing and not an appeal by way of a hearing de novo” (Free JA at [99]). The first ground of appeal was made out.
(ii) In relation to the second ground of appeal, Leeming JA found that, while some evidence was expressed in terms of an increased risk of death (which is not sufficient to satisfy s 25), the reasons read as a whole did not approach causation in this way. The Member accepted that Mr Stockwell’s various conditions arose from work-related stress and alcohol consumption. There was evidence that the PTSD materially contributed to the adenocarcinoma, and therefore, his death. The Acting Deputy President did not err in law in failing to find that the test applied by the Member in relation to causation was erroneous and this ground of appeal was dismissed. | Gaynor v Burns [2025] NSWCA 170 30 July 2025 – Free JA
In sum: Mr Gaynor filed a notice of appeal of a decision in the Supreme Court but declined to file a summons seeking leave to appeal. Mr Burns, the first respondent on appeal and plaintiff in the proceedings, claimed relief in the form of an apology published in three newspapers and payments to charity up to $100,000. The Attorney General contended that Mr Gaynor required leave to appeal and filed a notice of motion seeking to dismiss the notice of appeal. Nevertheless, Mr Gaynor maintained that he did not require leave because the appeal involved a matter amounting to the value of $100,000 or more under s 101(2)(r) of the Supreme Court Act 1970 (NSW). On the most expensive interpretation of the orders for relief sought, the maximum that Mr Gaynor may be ordered to spend was approximately $98,000. In the circumstances, as the jurisdictional limit in s 101(2)(r) was not met, leave was required to appeal. As he did not seek leave, Mr Gaynor’s appeal was found to be incompetent and was dismissed.
Facts: Mr Gaynor unsuccessfully sought judicial review of a decision of the Anti Discrimination Board (ADB) under the Anti Discrimination Act 1977 (NSW) (AD Act) concerning a “tweet” that he published that was alleged by Mr Burns to be homosexual vilification contrary to s 49ZT(1) of the AD Act. As a consequence of the jurisdictional issues of the parties residing in different states, the matter was before the Local Court of NSW. This decision concerns his notice of appeal from that judgement (Gaynor v Burns [2025] NSWSC 185). Mr Gaynor argued that he had a right of appeal on the basis that the relief in the matter amounts to the value of $100,000 under s 101(2)(r) of the Supreme Court Act. The relief sought by Mr Burns, to be determined in the Local Court, includes apologies published in three different newspapers, being the Sydney Morning Herald, The Australian and Daily Telegraph “on a Monday, Tuesday, Wednesday, Thursday or Friday other than a public holiday”. Mr Burns also sought an order in the event that Mr Gaynor did not comply with the other orders, Mr Gaynor would be required to “pay a charity damages not exceeding $100,000”.
Held (Dismissing the notice of appeal as incompetent):
(i) The onus lies on Mr Gaynor to demonstrate that the amount in issue meets the $100,000 threshold. He contended that the orders sought required a published apology in each of the newspapers for 5 days, the total cost of which amounted to $98,252.66 and therefore, for the jurisdictional limit to be satisfied, there needed to be a realistic prospect that he would be ordered to pay a charity $1,747.34 or more. In an analysis of s 108 of the Civil and Administrative Tribunal Act 2013 (NSW) Free JA rejected Mr Gaynor’s submission that s 108(7) provides a basis for the Local Court to make such an order. Section 108(7) is concerned with the payment of damages to a complainant by way of compensation for any loss or damage suffered where there is a failure to comply with orders. Mr. Burns had disavowed any such relief and there is no realistic prospect of an order of the kind contemplated in s 108(7) for Mr Gaynor pay an amount of money to a charity. The jurisdictional limit in s 101(2)(r) was not met and leave was required to appeal. As he did not seek leave, Mr Gaynor’s appeal was found to be incompetent and was dismissed. | | Supreme Court of New South Wales | Gaynor v Burns (No 2) [2025] NSWSC 885 8 August 2025 – N Adams J
In sum: The plaintiff filed a notice of motion seeking to set aside a costs order under r 36.16(1) and (3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), filed within the 14 day time limit. The costs order was in favour of the fourth defendant (the Attorney General of NSW), the only contradictor and an intervenor. At the hearing, neither party made submissions on costs and accordingly, the usual costs order in favour of the successful party (the fourth defendant) was made. The plaintiff’s contention in the notice of motion was that, because the fourth defendant was an intervener, each party should bear their own costs. The principles derived from the authorities put forward by the plaintiff did not assist his case and were decisions where the intervener was awarded costs. Adams J found that the fourth defendant was the sole contradictor that played an important role in the proceedings, and he did not engage in any conduct that was inappropriate or productive of wasted costs.
Facts: As outlined in the related case above, Mr Gaynor unsuccessfully sought judicial review of a decision of the Anti Discrimination Board (ADB) under the Anti Discrimination Act 1977 (NSW) (AD Act). The ADB filed a submitting appearance and the Attorney General of New South Wales applied to intervene and be joined to the proceedings. The plaintiff had consented to the fourth defendant’s intervention and joinder. The plaintiff did not make submissions on costs during the proceedings and, as the only active contradictor, the plaintiff was ordered to pay for the fourth respondent’s costs.
Held (Dismissing the notice of motion with the plaintiff to pay the fourth defendant’s costs):
(i) It was appropriate for the ADB, as the decision maker, to file a submitting appearance. The plaintiff’s submissions, that the ADB should have taken an active role so the Attorney did not need to intervene, were not accepted. Her Honour noted that the plaintiff failed to grapple with the fact that it is “the usual practice is for decision makers to file submitting appearances and for the Attorney General to take the role of a substantial contradictor so as to ensure compliance with the Hardiman principle: see eg Marium v Registrar Local Court Blacktown [2022] NSWSC 528 at [15], [18]”. The Court accepted the fourth defendant’s submissions that, had the ADB taken an active tole in these proceedings “it would have exposed itself to an apprehension of bias should the plaintiff be a party to further proceedings before it”. The fourth defendant played a significant and important role in the proceedings.
(ii) The plaintiff did not establish any of the limited circumstances in which the Supreme Court would act under r 36.16(3A) to vary an earlier costs order. No satisfactory reason for failing to raise this issue at the hearing or in written submissions was provided. | | Supreme Court of Victoria | Ioannis Xenidis v Owners Corporation Plan No. PS318104R [2025] VSC 462 29 July 2025 – Gorton J
In sum: In an application for judicial review, the applicant sought leave to appeal against a costs decision of the Victorian Civil and Administrative Tribunal (VCAT). Mr Xenidis (the applicant) argued that there was a lack of procedural fairness in that VCAT failed to consider his submissions sent by way of several emails in relation to costs. In circumstances where the orders requesting submissions on costs required the applicant to “send” submissions (rather than file and serve submissions), the Supreme Court considered that it was necessary for VCAT to consider all emails sent by the applicant in relation to costs in order to accord him procedural fairness. It was observed that there must be difficulties faced by VCAT to separate submissions from emails for other purposes, however noted that it was open to VCAT to make orders requiring litigants who send numerous emails to file a single document encompassing their submissions.
Facts: The applicant owns two units in a development. Owners Corporation Plan No PS318104R (‘the Owners Corporation’). The Owners Corporation successfully brought a claim against the applicant in VCAT for the non-payment of body corporate fees. An order was then made that the applicant “must send to the Tribunal and to the [Owners Corporation] his submissions in response to the costs application and proposed costs order’ by 17 June 2024.” In the reasons for decision, VCAT specifically referred to the current applicant’s “submissions in reply” dated 9 February 2024. Four emails that raised submissions in relation to costs were not referred to by VCAT in the reasons for making the costs order.
Held (Allowing the appeal on procedural fairness grounds and remitting the application for costs to VCAT for redetermination):
(i) Under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (VIC), leave is required to appeal against the costs order. Should leave be granted, any appeal is limited to an appeal on a question of law. There were two questions of law identified by the Supreme Court. The first issue was whether VCAT failed to afford procedural fairness to the applicant by failing consider the applicant’s submissions on costs. The second question concerned whether the costs order was reasonably open.
(ii) In relation to the first question of law, leave to appeal was granted in circumstances where VCAT’s reasons did not consider the four emails sent by the applicant in relation to costs which were found to constitute submissions. The emails were not referred to by VCAT in the reasons and, particularly in circumstances where the orders were for the applicant to “send” submissions, the emails should have been considered in order to accord procedural fairness. The Supreme Court inferred that VCAT did not consider the emails and concluded that the applicant was not afforded procedural fairness. Gorton J noted that while there are difficulties faced by VCAT to separate submissions from emails for other purposes, it was open to VCAT to make orders requiring litigants who send numerous emails to file a single document encompassing their submissions.
(iii) In relation to the second question, the Supreme Court refused leave to appeal on this ground as the applicant had not identified any error of principle in the approach taken by VCAT and, in light of the findings made, the costs order made by VCAT was clearly open. | Federal Court of Australia | Scott v Steritech Pty Ltd [2025] FCAFC 110 22 August 2025 – Banks-Smith, Meagher and Kennett JJ
In sum: In settlement of a dispute in the Federal Circuit Court regarding a purported redundancy in 2019, the appellant signed a deed of release barring future proceedings against the respondent, with a carve out for workers’ compensation and superannuation law claims. Despite this, he commenced new proceedings in 2022 alleging different contraventions of the Fair Work Act 2009 (FW Act) and a claim for damages in negligence. The primary judge dismissed the case as barred and an abuse of process. On appeal, the Court dismissed the FW Act claim but held that the primary judge had fallen into error in concluding the Court lacked jurisdiction to hear the negligence claim because there was no proper basis to find the claim “invalid”.
Facts: The appellant was employed by the respondent between April 2003 and November 2019 when he was terminated because his role was purportedly redundant. In July 2019, the appellant sued the respondent for damages in the then Federal Circuit Court of Australia alleging breaches of ss 45, 340 and 352 of the Fair Work Act 2009 (Cth) (FW Act). That matter was settled and the parties entered into a deed of release in May 2020 where the appellant received a “redundancy payment” of $52,500 in exchange for releasing the respondent for all claims arising out of the appellant’s employment and termination. The deed also barred future proceedings by the appellant against the respondent save for any claims made under workers’ compensation or superannuation law. In June 2020, the Circuit Court proceedings were discontinued.
In spite of the deed, the appellant commenced proceedings in the Federal Court in July 2022 claiming compensation for contraventions of ss 45 and 50 of the FW Act and a common law claim for damages based in negligence arising out of his employment. The respondent filed an interlocutory application to strike out the application and summarily dismiss the proceedings. The first basis was that it was an abuse of process because it re-litigated earlier claims that had been settled and because it was barred by a deed. The second basis argued a jurisdictional issue.
In November 2023, the primary judge ordered that the statement of claim be struck out and the proceedings dismissed. The reasons observed that the facts relied on in both proceedings were essentially identical and that the appellant was endeavouring to re-litigate his earlier settled claim, which is an abuse of process of the Federal Court for the appellant to bring the proceedings which are barred by a deed.
In August 2024, leave to appeal from the primary judge’s orders was granted. The issues on appeal concerned whether the primary judge erred in finding that the claim was barred by the deed because no finding should have been made summarily without evidence regarding the meaning of “workers’ compensation… law”. The second ground alleged that the primary judge erred in holding that the damages claim was outside the Court’s jurisdiction and irrelevant for non-compliance with the Queensland workers' compensation legislation.
Held (Setting aside the judgement under appeal and dismissing the part of the claim seeking compensation under the FW Act):
(i) The respondents filed a notice of contention which alleged that the proceedings were an abuse of process. His Honour accepted the appellant’s submission that an abuse of process will ordinarily be found where there is an attempt to re-litigate a case that has been determined, however the same is not necessarily true where an earlier case has been discontinued. The notice of contention was dismissed as, aside from the agreement in the deed, the evidence was not sufficient to characterise the current proceedings as an abuse of process.
(ii) With regard to the first ground of appeal, the Court found no error in the primary judge’s finding that the exception in the deed to workers’ compensation claims referred to a legislative scheme such as the Workers’ Compensation and Rehabilitation Act 2003 (Qld). It was held that the term was not ambiguous and did not extend to a broader claim under the FW Act. This ground of appeal was rejected.
(iii) In relation to the second ground of appeal, it was found that the validity of any common law claim for damages under workers compensation laws would need to meet certain statutory criteria, a threshold issue that would need to be alleged and established by the respondent. It was held that the primary judge erred in holding that the Court did not have jurisdiction to determine the common law claim as there was no proper basis to find the claim “invalid”. This ground was made out. | Anderson v Morgan Crest Pty Ltd trading as Ray White Benalla [2025] FCA 817 22 August 2025 – Rofe J
In sum: The Federal Court upheld an appeal from a decision of the Federal Circuit and Family Court to refuse and adjournment application in circumstances where related Victorian Supreme Court proceedings had the consequence that the appellant, Ms Anderson, was evicted from her rental residence two days prior to the hearing. The appellant successfully argued that refusal of adjournment amounted to the denial of procedural fairness, noting that she was without access to her documents or computer when she had been forced to vacate her home in quickly with minimal belongings and two elderly dogs. Rofe J found that in exercising her discretion in determining the adjournment application, the primary judge overlooked an important discretionary factor: the need to maintain public confidence in the judicial system. This was compounded by the fact that the primary judge’s reasons for refusing the adjournment were delivered ex tempore in Court and never published or otherwise circulated to the parties. Whilst the appellant’s claim was considered to be weak, the Court was not able to conclude that a properly conducted trial could not possibly have produced a different result.
Facts: In June 2020 the appellant entered into a lease for a property in Benalla in Victoria. In September 2021, the appellant entered into a temporary rent reduction arrangement with her landlord. Over the coming period, the appellant then received emails on behalf of Ray White Benalla with arrears notices. Between November 2021 and March 2023, the appellant received four notices to vacate the property. The first notice was withdrawn and the second was found to be invalid. Following a third notice in March 2023, VCAT ordered Ms Anderson to vacate the property and pay rent in arrears. On appeal to the Supreme Court in September 2023, it was found that the third notice did not meet the legal requirements and the orders for possession of the property were set aside. On 4 March 2023, a fourth notice to vacate was issued for a vacate date of 10 May 2023. On 4 March 2023, the appellant also applied to VCAT for urgent repairs but did not allow access to the property until her appeal on the third notice was heard in the Supreme Court.
In October 2023, the appellant filed an application against the respondent for unconscionable conduct in the Federal Circuit and Family Court of Australia (the current proceedings). The landlord also brought two applications for possession of the property in parallel in VCAT, which were successful, and the appellant sought to appeal those decisions up to the Court of Appeal, which was refused on 19 July 2024. By reason of orders made on 19 July 2024, the appellant was required to vacate the property on 3 August 2024. On 31 July 2024, the appellant emailed the chambers of the primary judge foreshadowing her adjournment application. On 3 August 2024, the police arrived at the property, and the appellant vacated the property, leaving behind her computer and documents. Within this period, she was also required to find temporary accommodation for herself and her two elderly dogs. The adjournment application was dealt with at the commencement of the hearing on 8 August 2024. The primary judge refused the adjournment, delivering ex tempore reasons on that date. The appellant left the Court due to issues with her dogs at the temporary accommodation and the primary judge continued the hearing on the basis of affidavit evidence.
Held (Allowing the appeal in part and remitting the matter for reconsideration):
(i) The primary judge, in exercising her discretion in determining the adjournment application, overlooked an important discretionary factor - the need to maintain public confidence in the judicial system. It was found that this omission was compounded by the fact that reasons for refusal were delivered ex tempore and never published or circulated. Although the appellant’s case was said to be weak, the Court could not conclude that a properly conducted trial would inevitably have produced the same outcome. The appeal was allowed, and the judgment of the primary judge was set aside. Rofe J considered that. it was appropriate, in the interest of maintaining public confidence in the administration of justice, to remit the matter back to the Federal Circuit and Family Court of Australia for a new trial by a different judge. | | 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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