NCAT Legal Bulletin Issue 5 of 2022
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 Court of Appeal of NSW, Victorian Court of Appeal, and the Supreme Court of NSW published in September, October and November 2022.
Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209: The Court of Appeal dismissed an application for judicial review. It held that a failure by a non-superior court to give adequate reasons will not of itself constitute jurisdictional error. If the non-superior court dealt with substantial and clearly articulated arguments and had addressed any necessary preconditions to the power in question, it would not amount to a constructive failure to exercise jurisdiction. Terepo v Council of the Law Society of New South Wales [2022] NSWCA 210: The Court of Appeal allowed an appeal, in part, from NCAT’s Occupational Division. It found the Tribunal had exceeded its jurisdiction in legal disciplinary proceedings in finding that Ms Terepo was guilty of reckless indifference, which went beyond the allegations put to it by the Law Society. Ghosh v Health Care Complaints Commission [2022] NSWCA 229: The Court of Appeal dismissed an appeal from NCAT’s Occupational Division. The Court held that the majority of members were not required to address the reasons of a dissentient member and the Tribunal had not fallen into error by failing to explicitly address the arguments in the dissenting decision. Choi v Secretary, Department of Justice and Communities [2022] NSWCA 170: The appellant’s application for judicial review of the Supreme Court was refused, as the Court cannot exercise judicial review of its own judges. The separate application to appeal the primary judge’s decision on the grounds of apprehended bias and a denial of procedural fairness were dismissed as being unfounded and an abuse of process, resulting in the Court making a Teoh direction, requiring the appellant to show cause and explain why any future legal proceedings should not be summarily dismissed. Thurin Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226: The Victorian Court of Appeal accepted a referral of questions of law from VCAT. It held that VCAT lacked jurisdiction to hear matters arising under s 76(ii) of the Constitution as the matter was seized with federal jurisdiction. However, a matter is not one in federal jurisdiction merely by reason of the fact that the defendant to the VCAT proceeding was a corporation incorporated under the Corporations Act 2005 (Cth). Further, it found VCAT had jurisdiction to refer the matter under s 77 of the VCAT Act. Soulis v R & A Henry Auto Repairs & Ors (No 3) [2022] NSWSC 1109: The Court refused an application to appeal a decision of the Appeal Panel where there were no errors in the decision. Despite the defendant company’s motor vehicle repairer licence lapsing at the time it conducted repairs on the appellant’s vehicle, this did not entitle him to a refund for those repairs. The remedy the appellant was seeking was not causally linked to the claim. Kaye v The Owners – Strata Plan No 4350 [2022] NSWSC 1386: The Supreme Court refused leave to appeal a decision of NCAT which had made no legal errors in its decision. The appellants sought a by-law granting exclusive rights over common property. The Tribunal at first instance and Appeal Panel both held the refusal to grant this by-law was not unreasonable under s 149(1) of the Strata Schemes Management Act 2015 (NSW). DeMarco v Macey [2022] NSWSC 1348: The Supreme Court quashed the decision of NCAT on first instance on the basis of apprehended bias. It held the Appeal Panel erred in law, by failing to quash the first instance decision which was affected by apprehended or actual bias.
| | Court of Appeal of New South Wales | Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 19 October 2022 — White JA, Mitchelmore JA and Kirk JA
In sum: An application to judicially review a criminal conviction made in the District Court was dismissed. The Court of Appeal found there was no basis on which to find a jurisdictional error or procedural error. The Court of Appeal explained in which circumstances “inadequate reasons” would or would not amount to a constructive failure to exercise jurisdiction. Namely, that that if a non-superior court has dealt with substantial and clearly articulated arguments and has addressed any necessary preconditions to the power in question, and has not otherwise failed to exercise its jurisdiction, then it is unlikely that some other inadequacy in its reasons would be of such significance as to conclude that the decision is deprived of legal effect. In general, and subject to the terms of any applicable statutory provisions, a failure by a non-superior court to give adequate reasons will not of itself constitute jurisdictional error. | Catchwords: ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Procedural error — Right to reasons — Inadequacy of reasons — Whether inadequacy of reasons on part of non-superior court amounts to jurisdictional error — Nature of judicial duty to give reasons — Where inadequacy of reasons does not constitute failure to deal with substantial and clearly articulated argument or other similar failure to exercise jurisdiction — ADMINISTRATIVE LAW — failure to deal with substantial and clearly articulated argument — overlap with procedural fairness — CRIME — Appeal and review — Appeal from Local Court to District Court — Whether constructive failure on part of District Court judge in performing appeal functions. | Held (dismissing the appeal):
(i) A copy of the Court of Appeal’s summary is here. | Read the decision on the NSW Caselaw website. | Terepo v Council of the Law Society of New South Wales [2022] NSWCA 210 25 October 2022 — Bell CJ, Macfarlan JA and Mitchelmore JA
In sum: An appeal from NCAT’s Occupational Divison was allowed in part and one of the orders set aside. The Tribunal found that Ms Terepo was guilty of professional misconduct and of unsatisfactory professional conduct and in a later judgment recommended her name be removed from the Roll. Both decisions were appealed by Ms Terepo. The Court of Appeal upheld the finding of professional misconduct, but the Court held that the Tribunal exceeded its jurisdiction by finding that Ms Terepo was guilty of reckless indifference. The Tribunal went beyond the allegations put to it by the Law Society. Both parties presented consent orders to the Court, which included a declaration that Ms Terepo was guilty of professional misconduct but did not provide for her name to be removed from the Roll. Instead, they provided for her to be precluded from applying for a new practising certificate unless a stipulated educational condition was satisfied. The Court made these orders. | Catchwords: OCCUPATIONS — legal practitioners — misconduct and discipline — application by Law Society to remove from the Roll the name of a solicitor found guilty of professional misconduct and unsatisfactory professional conduct — appeal by solicitor against Tribunal (NCAT) decision — parties subsequently sought to have orders made by consent — the Court must satisfy itself as to the appropriateness of proposed consent orders — APPEALS — Tribunal (NCAT) exceeded its jurisdiction — its finding of reckless indifference was impermissible because it went beyond the allegations put to it by the Law Society — on the application of both parties the Court set aside the Tribunal’s order recommending removal of the solicitor’s name from the Roll and in lieu ordered that the solicitor not be permitted to apply for a new practising certificate unless she satisfies an educational condition. | Held (allowing the appeal in part):
(i) A link of the Court of Appeal’s summary is here. | Read the decision on the NSW Caselaw website. | Ghosh v Health Care Complaints Commission [2022] NWSCA 229 11 November 2022 — Ward P, Basten AJA and Adamson J
In sum: The Court of Appeal dismissed an appeal brought by Dr Ghosh, from a decision of the Occupational Division of NCAT to cancel her registration as a medical practitioner. The decision had a singular dissenting opinion. The principal issues on appeal were; whether the majority of the Tribunal was in error in failing to explicitly address the dissenting reasons of the dissentient Member and whether the majority’s finding that she had a “negative attitude to the protective regime” erroneously influenced the Tribunal’s findings of her credit. The Court held that the dissentient Member’s qualifications as a psychiatrist did not elevate the status of his reasons to evidence. The Tribunal’s role required it to choose between competing arguments and opine on the correctness of medical evidence before it, not form its own medical opinions by applying its own medical expertise. The majority was not required to address the reasons of a dissentient member.
The Court also held that it was open to the Tribunal, considering Dr Ghosh’s obligation of candour to the Health Care Complaints Commission and the Tribunal, to infer that her negative attitude, at least partly explained why she was not frank and forthcoming during proceedings. This could be taken into account when assessing her credibility. | Catchwords: ADMINISTRATIVE LAW — status of minority reasons – whether majority required to address minority reasons — ADMINISTRATIVE LAW — challenge to effect of applicant’s negative attitude in disciplinary proceedings — medical practitioner’s duty of candour in disciplinary context. | Held (dismissing the appeal):
(i) A link of the Court of Appeal’s summary is here. | Read the decision on the NSW Caselaw website. | Choi v Secretary, Department of Justice and Communities [2022] NSWCA 170 1 September 2022 — Ward P, Meagher JA and Leeming JA
In sum: The appellant’s application for judicial review of the Supreme Court was refused, as the Court cannot exercise judicial review of its own judges. The separate application to appeal the primary judge’s decision on the grounds of apprehended bias and a denial of procedural fairness was dismissed as being unfounded and an abuse of process, resulting in the Court making a Teoh direction, requiring the appellant to show cause and explain why any future legal proceedings should not be summarily dismissed. | Facts: The appellant (Ms Choi) sought both a judicial review of, and an appeal against, a decision of the Supreme Court. The Supreme Court’s decision had dealt with an appeal from the Appeal Panel decision of NCAT. Ms Choi alleged the primary Judge, among many other accusations, had denied her procedural fairness, demonstrated apprehended bias, committed procedural irregularities and had made an error on the face of the record. In support of this summons, Ms Choi adduced evidence in the form of sound recordings which she had taken during previous proceedings (both in NCAT and the Supreme Court), which she had also published to YouTube. The respondent (Secretary) argued the judicial review was lodged out of time and without any explanation as to why Ms Choi could not have commenced it within the prescribed time. It also argued that each of the ten grounds of review arose from the decision of the primary Judge (rather than the NCAT decision), which the Secretary argued the Supreme Court had no power to review, as a judge of the Supreme Court has no power to direct an order in the nature of prohibition against another judge of the same Court. | Held (dismissing the appeal):
(i) Pursuant to ss 9A and 9B of the Court Security Act 2005 (NSW) (CSA), any person is prohibited from using a device to capture sound or images to transmit or distribute proceedings from within the Court externally, except with express judicial consent. Ms Choi’s unauthorised recording and publication of proceedings in both NCAT and the Courts, to YouTube, sometimes with her own commentary, was a “calculated” means to bring both the Court and the administration of justice into disrepute. Leave to record the proceedings for the present matter was refused on this basis (at [78], [80], [81]).
(ii) Despite this, the Court did not express a view as to whether the conduct of Ms Choi, by publishing the contents of proceedings onto YouTube, amounted to either (or all of) a serious contempt of court, a serious breach of the CSA or potential criminality: [225].
(iii) Ms Choi’s complaint that there was a private hearing in her absence, which raised an issue of bias was also rejected by the Court. It was apparent from the transcript that the primary Judge held a preliminary discussion as to the procedural history of the matter. The fact that his Honour expressed a preliminary view that the matter had a “tortured history” was “understandable” and in no way gave rise to the apprehension of bias or a denial of procedural fairness. The conclusion his Honour reached, that the matter was simply a “re-agitation of issues already comprehensively dismissed by the Appeal Panel”, was a finding that was open to make and demonstrated no bias [135].
(iv) Ms Choi’s contention that she was denied procedural fairness because the primary Judge was neither robed nor wearing a wig was firmly rejected. The Court held that it could not be “seriously suggested” that the wearing of robes or wigs is a requirement of natural justice or that a failure to do so is contrary to the rule of law: [134].
(v) The Court also emphasised that it had no power to exercise judicial review of the impugned decisions of its own judges and the application was untenable. Ms Choi’s summons for judicial review was dismissed as an abuse of process: [214].
(vi) The Court made a Teoh Direction, requiring Ms Choi to show cause in writing, to explain to the Court why it should not summarily dismiss any future proceedings as vexatious or an abuse of process. Whilst restricting a person’s access to the courts is an extreme interference with a basic right, this right comes with concomitant responsibilities that the Court must ensure are not abused. The factors which indicated this was a “clear case” for making a Teoh direction were: the quantity of proceedings commenced by Ms Choi, the disproportionality between the number of cases filed and the matters in issue; the frequent filing of “thousands of pages” of material; and the seriousness of the allegations made by Ms Choi, that if they were made by a legal professional, it would be in clear violation of the professional rules (at [220], [222], [223], [226], [227]). | Read the decision on the NSW Caselaw website. | Victorian Court of Appeal | Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226 20 October 2022 — McLeish, Niall and Walker JA
In sum: The appellants, Mr and Mrs Thurin brought a claim in VCAT against Krongold Constructions Pty Ltd, a corporation, which by way of defence, pleaded an apportionment claim against another corporation, based on a claim under the Competition and Consumer Act 2010 (Cth). The defendant corporation contended that VCAT lacked jurisdiction to hear the matter because the matter was seized with federal jurisdiction. It further contended that VCAT could not refer the matter to the Supreme Court pursuant to s 77 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘the VCAT Act’). VCAT referred six questions of law to the Victorian Court of Appeal concerning the jurisdiction of the Tribunal to hear matters which raise defences under Commonwealth Acts.
The Victorian Court of Appeal accepted that VCAT had jurisdiction to refer the matter to the Supreme Court under s 77 of the VCAT Act, even though it was seized with federal jurisdiction. However, it found that whilst VCAT does not have jurisdiction to hear matters “arising under the laws of parliament” per s 76(ii) Constitution, a matter is not seized with federal jurisdiction merely because a defendant is a cooperation incorporated under the Corporations Act 2001 (Cth). | Catchwords: CONSTITUTIONAL LAW — Federal jurisdiction — Referral of questions of law by Victorian Civil and Administrative Tribunal — Claim against construction company in respect of building works — Company claimed apportionment and contribution from third party on basis of alleged breaches of Commonwealth law — Whether apportionment and contribution claims mean matter 'arising under' law made by Commonwealth Parliament within s 76(ii) of the Constitution — Apportionment and contribution claims brought matter within federal jurisdiction — Irrelevant that third party not joined — Once a federal matter, VCAT lacked jurisdiction to hear and determine – Whether company's incorporation under Corporations Act 2001 (Cth) means matter 'arising under' Commonwealth law — Incorporation under Corporations Act insufficient to attract federal jurisdiction — STATUTORY CONSTRUCTION — Whether s 77 of Victorian Civil and Administrative Tribunal Act 1998 empowers VCAT to refer proceeding in federal jurisdiction to Supreme Court — Statutory language to be given full meaning — Provision construed to operate to full extent of State legislative power — Referral not an exercise of federal judicial power — Re-enactment presumption inapplicable — Provision empowers VCAT to refer proceeding. | Held (accepting the referral from VCAT):
(i) A link to the full case is here. | Read the decision on the Law Library Victoria website. | Supreme Court of New South Wales | Soulis v R & A Henry Auto Repairs & Ors (No 3) [2022] NSWSC 1109 16 September 2022 — Bellew J
In sum: The Supreme Court refused leave to appeal a decision of the Appeal Panel of NCAT under s 83(1) Civil and Administrative Tribunal Act 2013 (NCAT Act), as the grounds of appeal raised no questions of law and the Appeal Panel had made no errors in its decision. The plaintiff’s application for a recusal of Bellew J was also refused, as there were no substantial grounds on which the recusal should be made. | Facts: The plaintiff (Mr Soulis), sought leave under s 83(1) NCAT Act to appeal the decision of the Appeal Panel of NCAT, citing numerous errors of law. Mr Soulis’ vehicle was repaired by the defendant company (the defendants). Mr Soulis was dissatisfied with the quality of these repairs and was agitated by issues apparently arising from footage captured by the dashcam during these repairs. In preparation for Tribunal proceedings, Mr Soulis became aware that the company’s motor vehicle repairer licence had lapsed during the period in which repairs were undertaken on his vehicle. Mr Soulis commenced proceedings in the Tribunal, seeking a full refund for the vehicle repairs and alleged damages. Whilst the Tribunal was reserved, Mr Soulis sought to withdraw his application. The Tribunal took submissions on this issue and ultimately refused the application. Mr Soulis commenced an appeal in the Appeal Panel of NCAT to challenge the decision preventing him from withdrawing his claim. Following the Appeal Panel’s decision, Mr Soulis commenced an appeal in the Supreme Court, alleging numerous errors of law and errors in the reasons of the Appeal Panel. | Held (dismissing the appeal):
(i) The Court refused Mr Soulis’ application to adjourn the hearing, the day which the matter was listed. His Honour reasoned, the proceedings had long history (with proceedings commencing in NCAT in early 2020) and the information provided by the plaintiff in respect of his admission to hospital was bereft of any detail or any probative supporting documentation. To facilitate the just, quick and cheap resolution of the real issues, his Honour proceeded with the hearing in the absence of Mr Soulis: s 56(1) Civil Procedure Act 2005 (NSW) (at [12] to [24]).
(ii) The Court found it appropriate to deal with the defendant’s motion, seeking to dismiss the proceedings under r 13.4(1)(b) Civil Procedure Rules 2005 as frivolous or vexatious. If successful, Mr Soulis’ motions would be rendered otiose. The basis of making such an order must be “very clear” and is only to be exercised when an action is clearly brought “without foundation”. In the reasons that followed, the Court found no errors of law in any part of the Appeal Panel’s decision, which was upheld in its entirety. As the proceedings disclosed no reasonable cause of action, they were dismissed and Mr Soulis’ motions were not considered (at [32],[33],[51],[53],[71]).
(iii) Mr Soulis claimed the Appeal Panel had erred in respect of s 36(1) NCAT Act, for failing to adhere to the ‘guiding principle’ and failed to properly review the errors he outlined in his appeal. He also claimed that the Appeal Panel contravened ss 38(5)(c) and 38(6), by preventing him from having a reasonable opportunity to be heard. In reviewing the transcript, Bellew J found that Mr Soulis was given a full opportunity to be heard and that the proceedings were conducted entirely in accord with s 36, which demonstrated that the allegations levelled by Mr Soulis were entirely “untenable”. As the Appeal Panel has discretion to determine its own procedures, and no errors of law arose (at [55],[56],[60]).
(iv) Mr Soulis’ other contentions, that errors of law were found in the interpretation of s 33A of the Motor Dealers and Repairers Act 2013 (NSW) (MDRA) and the failure of the Appeal Panel to consider s 18 of the Australian Competition and Consumer Act 2010 (CCA) were both dismissed. The Panel clearly addressed Mr Soulis’ arguments in relation to s 18 CCA, therefore did not err in law by failing to address that provision (at [67],[68], [69]).
(v) In relation to s 33 MDRA, the Appeal Panel correctly concluded that even if the defendants were not licensed at the time that the repairs were carried out, that did not lead to a conclusion that the plaintiff was entitled to relief. In doing so, the Appeal Panel correctly drew a distinction between the consequences of a breach of a punitive provision (such as s 12 of the MDRA) and the consequences of such a breach in civil proceedings between relevant parties. Given the Appeal Panel’s comprehensive reasons, the proposition that it failed to properly take into account the matters raised in respect of the MDRA during their deliberations was without substance (at [65], [66]). | Read the decision on the NSW Caselaw website. | Kaye v The Owners – Strata Plan No 4350 [2022] NSWSC 1386 14 October 2022 — Basten AJ
In sum: The Supreme Court dismissed an appeal against the decision of the NCAT Appeal Panel, which in turn had dismissed an appeal of the first instance decision. The appellants on two different occasions proposed two separate by-laws. The first was a by-law which granted them rights of exclusive use and enjoyment of the roof common property in exchange for repairing and maintaining the waterproof membrane in the roof. The second, alternative by-law proposed that the owners corporation would undertake the repairs and maintenance, but the appellants would pay $7,500 in consideration for the rights. Neither proposal was accepted. The appellants commenced proceedings in NCAT under s 149(1) of the Strata Schemes Management Act 2015 (NSW), arguing the refusals were unreasonable. NCAT on first instance found to the contrary. The Appeal Panel agreed with the first instance decision. On appeal to the Supreme Court, it was held that the Appeal Panel made no legal error in not being satisfied that the refusals were unreasonable. | Catchwords: LAND LAW — strata title — common property – two by-laws to obtain rights to exclusive use and enjoyment of common property — first proposal offered repairs and maintenance — second proposal offered monetary compensation — other lot owners concerned about noise, loss of privacy, lack of compensation, floodgates for applications — whether refusal of first proposal unreasonable under Strata Schemes Management Act 2015 (NSW), s 149(1) — Tribunal not required to weigh interests in determining whether refusal unreasonable — other lot owners entitled to have regard to own interests and rely on experience and beliefs — LAND LAW – strata title — Strata Schemes Management Act 2015 (NSW), s 149(2) — s 149(2) considerations addressed to whether to order making of by-law — proponents’ rights and expectations not to be weighed against other lot owners’ interests — COSTS — party/party — appeal from NCAT Appeal Panel — finding of special circumstances — no mandatory considerations — unsuccessful appeal and fact of legal representation permissible considerations — finding of complexity — Tribunal’s power to award costs absent special circumstances — Civil and Administrative Tribunal Act 2013 (NSW), ss 35, 60 — Civil and Administrative Tribunal Rules 2014 (NSW), rr 38 and 38A. | Held (dismissing the appeal):
(i) A link to the Judgment summary from the Supreme Court is here. | Read the decision on the NSW Caselaw website. | DeMarco v Macey [2022] NSWSC 1348 5 October 2022 — Harrison AsJ
In sum: The Supreme Court found that the Appeal Panel erred in law by not quashing the decision of the Tribunal on first instance, on the grounds of apprehended bias by the Tribunal Member at first instance. The entire decision was set aside and remitted back to the Tribunal to be redetermined according to law. | Facts: The plaintiff (Mr DeMarco) sought a judicial review of an Appeal Panel decision, involving alleged bias and a denial of procedural fairness. The respondents (the Maceys) were involved in a dispute with Mr DeMarco, who was the builder undertaking renovations on their property. NCAT at first instance found that Mr DeMarco was required to pay a money order to the Maceys for a sum of $317,919. Mr DeMarco appealed this decision to the Appeal Panel, which made orders varying the first instance decision, where the amount payable became $389,184 due to a small arithmetical error. The appeal was otherwise dismissed. Mr DeMarco was also ordered to pay the Maceys costs. Mr DeMarco filed two summonses in the Supreme Court, one seeking leave to appeal under Pt 50 Uniform Civil Procedure Rules and s 83(1) Civil and Administrative Tribunal Act 2013 (NCAT Act), and the second was a summons seeking to appeal the decision. Mr DeMarco’s grounds of appeal included that the Appeal Panel erred in not quashing the first instance decision which was affected by apprehended or actual bias. Secondly, the Appeal Panel erred in not remitting the matter to be reheard before a different tribunal member, thereby denying him procedural fairness. | Held (allowing the appeal):
(i) An extension of time was granted to Mr DeMarco, as he was self-represented, and his application was initially filed within the Equity Division and rejected by the Registrar. He was advised to file the Summons within the Common Law Division, which he did the following day. The Court also granted leave to appeal pursuant to s 83(1) NCAT Act, on the basis both grounds of appeal raised issues of apprehended bias, questions of general public importance and matters concerning the administration of justice (at [15], [20], [21]).
(ii) It was noted that the grounds of appeal before the Court were wider than those before the Appeal Panel. A party must be bound by the conduct of their case and raising a new argument on appeal (whether deliberately or invertedly) should only be allowed in exceptional circumstances. The Court determined, that whilst the transcript demonstrated that Mr DeMarco withdrew the submission that the Tribunal Member had predetermined the proceedings and the allegation of actual bias before the Appeal Panel, the allegation of apprehended bias had not been withdrawn. Mr DeMarco proceeded on this aspect of the appeal before the Court (at [25], [29], [45], [65]).
(iii) Apparent from the transcript, was that the first instance Tribunal Member’s conduct exceeded “simple frustration”. She was non-responsive to Mr Demarco throughout the proceedings and abruptly terminated the hearing without notice following his submissions. The Court characterised the Tribunal Member’s comments to Mr DeMarco as “hostile” and “derogatory”. Absent from the Appeal Panel’s decision was any reference to the objective informed fair-minded observer, the individual comments made by the Tribunal Member, or the cumulative effect of the comments made to determine whether there was apprehended or actual bias present in the first instance proceedings (at [46], [47], [48]).
(iv) The Appeal Panel erred in its reasons, when it concluded that the Tribunal Member had been equally frustrated with both parties, therefore there was no bias or denial of procedural fairness. The Court found the analysis did not satisfy the test for actual or apprehended bias and was an irrelevant consideration. In light of the comments made, there remained an objective possibility that an informed fair-minded observer might apprehend that the Tribunal Member might not determine the matter impartially (the double might test) (at [49], [50], [51]).
(v) Her Honour held that, whilst isolated instances of frustration will not satisfy the double might test, on this occasion where the hearing lasted four days and where numerous “demeaning, belittling and condescending comments” were made to Mr DeMarco, the Tribunal Member might have lost her objectivity and determined the question other than on its merits. In failing to address this issue, the Appeal Panel erred at law and the decision was set aside [69], [70].
(vi) On the issue of whether Mr DeMarco was denied procedural fairness, it was determined that where the proceedings were to be remitted to be reheard, the issue was more appropriate to be dealt with according to law by the new tribunal (at [73], [74]). | Read the decision on the NSW Caselaw website. | | 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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