| | | | | NCAT Legal Bulletin Issue 7 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, Supreme Court of New South Wales and the Federal Court of Australia, including: - Kirby v Health Care Complaints Commission [2021] NSWCA 138 - In which the Court of Appeal dismissed the appeal of a dental practitioner from a decision of the Supreme Court. The Court found that the primary judge did not err in finding that there was no “appropriate professional council” for the purposes of s 39(2) of the Health Care Complaints Act 1993 (NSW), in circumstances where the conduct in question was not in the appellant’s capacity as a registered health practitioner. Had the respondent consulted the Dental Council as an appropriate professional council, there was no reason to think that the Dental Council would have opposed the disciplinary action proposed.
- Kirby v Health Care Complaints Commission [2021] NSWCA 139 - In which the Court of Appeal dismissed the appeal of a dental practitioner who sought a finding that disciplinary proceedings against him at NCAT were ultra vires. The Court gave the phrase “established under” a broad meaning in finding that NCAT is a disciplinary body established under the Health Practitioner Regulation National Law 2009 (NSW) and is thereby able to conduct disciplinary proceedings under the National Law.
- Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147 - In which the Court of Appeal dismissed an appeal by Vitality Works, and upheld the decision of the NCAT Appeal Panel that it had engaged in sexual harassment by its design, publication, display and distribution of a poster of the respondent at a depot at which they were both workplace participants.
- Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 - In which the Court of Appeal dismissed an appeal by the Secretary of the Department of Planning, Industry and Environment, which sought to set aside a subpoena for production issued by the respondent to the Secretary in relation to proceedings in the Land and Environment Court. The Secretary claimed the subpoena lacked any legitimate forensic purpose.
- AS by her tutor SS v NSW Public Guardian [2021] NSWSC 889 - In which the Supreme Court dismissed an appeal from the NCAT Appeal Panel regarding a guardianship order made by the Tribunal. There was no error of law on the part of the Tribunal in its appointment of the Public Guardian as a guardian of AS, rather than appointing AS’s mother, and the Tribunal complied with the statutory requirements and considerations set out in the Guardianship Act 1987 (NSW).
- Singh v Minister for Immigration [2021] FCA 755 - In which the Federal Court allowed the appeal of the appellant spousal visa applicant, and found that the Federal Circuit Court erred in finding that the Administrative Appeals Tribunal did not fail to consider relevant evidence in its conduct of a review of a decision of a delegate of the Minister.
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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| Kirby v Health Care Complaints Commission [2021] NSWCA 138
9 July 2021 - Gleeson and White JJA, Emmett AJA
In sum: The Court of Appeal dismissed the appeal of a dental practitioner from a decision of the Supreme Court. The Court found that the primary judge did not err in finding that there was no “appropriate professional council” for the purposes of s 39(2) of the Health Care Complaints Act 1993 (NSW), in circumstances where the conduct in question was not in the appellant’s capacity as a registered health practitioner. Had the respondent consulted the Dental Council as an appropriate professional council, there was no reason to think that the Dental Council would have opposed the disciplinary action proposed.
Facts: The appellant (Dr Kirby) is a dental practitioner who was the subject of a complaint made by another dentist to the Health Care Complaints Commission (HCCC), which notified the Dental Council of NSW, which investigated the complaint. The complainant asserted that Dr Kirby was administering a substance known as Cansema (a red and black salve) for the purported treatment of skin cancers. Cansema is not registered under the Therapeutic Goods Act 1989 (Cth). The Dental Council referred the complaint to the HCCC because it formed the view that Dr Kirby’s actions were not in the practice of dentistry. The HCCC imposed a prohibition order on Dr Kirby and caused a public statement to be issued ([6]-[8]).
Dr Kirby filed an application for administrative review of the HCCC’s decision at NCAT. This application was stayed pending a hearing in the Supreme Court (eventually an application for judicial review to challenge whether the statutory preconditions to the making of the prohibition order under s 41A of the Health Care Complaints Act 1993 (NSW) (HCC Act) were satisfied). A summons filed in the Supreme Court on behalf of Dr Kirby sought a declaration that the HCCC’s decision to make a prohibition order was void and of no effect. The summons did not seek an order by way of certiorari quashing the prohibition order. Dr Kirby asserted the prohibition order was improperly made because the HCCC failed to consult “with the appropriate professional council before deciding what action to take”. The HCCC’s position was that Dr Kirby’s conduct was not in the course of his practice as a dentist, but was investigating the complaint on its own motion on the basis that Dr Kirby’s conduct was of an unregistered health practitioner and therefore there was no appropriate council to consult ([9]-[19]).
The primary judge rejected Dr Kirby’s argument that the prohibition order was invalid because of the failure to consult the Dental Council. Dr Kirby appealed to the Court of Appeal ([2]-[3]).
Held (granting leave to appeal and dismissing the appeal):
Whether there was an appropriate medical council for the purposes of s 39(2) of the HCC Act
(i) The majority (White JA with Gleeson JA agreeing) found the primary judge erred in finding that, because of the nature of the complaint against Dr Kirby, there was no appropriate council with whom the HCCC was required to consult ([30]).
(ii) Emmett AJA found, in separate reasons, that the reference in s 39(2) to "the appropriate professional council (if any)" indicates that the legislature contemplated that there may not be an appropriate professional council. His Honour compared this language with the language in s 41A, which references “the relevant professional council”, In circumstances where the conduct in question was not conduct in Dr Kirby's capacity as a registered health practitioner, there was no appropriate professional council. However, he agreed with White JA that the appeal should be dismissed ([82]).
Whether the HCCC’s failure to consult rendered the prohibition order invalid
(iii) The majority then turned to consider whether, on a proper interpretation of the HCC Act, the prohibition order was invalid because of the failure to consult under s 39(2) prior to the making of the order ([31]).
(iv) After citing the High Court in Hossain v Minister for Immigration and Border Protection & Anor (2018) 264 CLR 123, White JA turned to the question of the materiality of the express breach of the requirement to consult ([33], [38]).
(v) The majority (White JA with Gleeson JA agreeing) explained that “the test is one of possibility and not probability. But the possibility must be realistic and not merely theoretical”. White JA explained that the Court of Appeal was in as good a position as the primary judge to judge the question of materiality ([41]-[42]).
(vi) The Court (White JA with Gleeson JA agreeing and Emmett AJA in separate reasons) concluded that, given that the opinion of the Dental Council was that Dr Kirby posed a risk to public safety, there was no realistic possibility that the Dental Council, if consulted, would have proposed a different course of conduct ([56]-[60], [81]).
Read the decision on the NSW Caselaw website.
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| Kirby v Health Care Complaints Commission [2021] NSWCA 139
9 July 2021 - Gleeson and White JJA, Emmett AJA
In sum: The Court of Appeal dismissed the appeal of a dental practitioner who sought a finding that disciplinary proceedings against him at NCAT were ultra vires. The Court gave the phrase “established under” a broad meaning in finding that NCAT is a disciplinary body established under the Health Practitioner Regulation National Law 2009 (NSW) and is thereby able to conduct disciplinary proceedings under the National Law.
Facts: In July 2018 the respondent (the HCCC) commenced disciplinary proceedings against the appellant (Dr Kirby) at NCAT. After these proceedings were commenced, Dr Kirby brought an application in the Common Law Division of the Supreme Court, seeking judicial review on the grounds that NCAT did not have jurisdiction to deal with the complaint because NCAT is not a disciplinary body established under the Health Practitioner Regulation National Law 2009 (NSW) (National Law), and the decision of the HCCC Director of Proceedings to bring proceedings in NCAT was ultra vires because the Director cannot bring a complaint to NCAT. The primary judge rejected Dr Kirby’s argument and he appealed to the Court of Appeal.
Held (granting leave to appeal and dismissing the appeal):
(i) The Court of Appeal’s decision to dismiss the appeal is squarely based on statutory construction.
(ii) The Court noted that the Tribunal had dismissed an application by Dr Kirby for a permanent stay or dismissal of the proceedings on 3 April 2019 and that an appeal against the decision was ultimately abandoned by Dr Kirby ([11]).
(iii) Some important points arise out of the decision which first traces the history of relevant legislative amendments relevant to the Health Care Complaints Act 1993 (NSW) (HCC Act), the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and the National Law.
(iv) First, the special constitution requirements in s 165B of the National Law “apply to NCAT where a complaint is referred by the Commission to the Tribunal under s 145C or s 145D of the National Law” ([37]).
(v) Secondly, the Court rejected Dr Kirby’s argument that a tribunal “established under” the HCC Act should be given a narrow construction. The context of s 90B of HCC Act indicates that “under” should not be read as “by” ([59]).
(vi) Thirdly, the Court rejected Dr Kirby’s argument that the Director of Proceedings commences proceedings before a disciplinary body under s 90B of the HCC Act, and held that the Director determines whether to prosecute the complaint, and the HCCC then exercises the power to commence proceedings ([70]).
(vii) Fourthly, the Court rejected Dr Kirby’s argument that the word “prosecute” should be construed in its technical sense; the proceedings are civil and the word should not be construed in a technical sense as in a criminal charge. The manner in which the HCCC refers an inquiry to the Tribunal under s 145C or s 145D is the means by which the HCCC “prosecutes” a complaint ([71]-[77]).
(viii) Fifthly, the Tribunal is a body authorised by the National Law as having power to discipline a registered health practitioner ([65]).
(ix) The Court of Appeal said in conclusion: “Dr Kirby has failed to establish that NCAT lacks jurisdiction to deal with the complaint filed by the Commission on 3 July 2018 or that the Director of Proceedings acted beyond her power in referring the complaint to the Tribunal under s 145C(1)(a) of the National Law” ([93]).
Read the decision on the NSW Caselaw website.
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| Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147
19 July 2021 - Bell P, Payne and McCallum JJA
In sum: The Court of Appeal dismissed an appeal by Vitality Works, and upheld the decision of the NCAT Appeal Panel that it had engaged in sexual harassment by its design, publication, display and distribution of a poster of the respondent at a depot at which they were both workplace participants.
Facts: The appellant (Vitality Works) was contracted by Sydney Water to produce a workplace health and safety campaign. In its campaign, it included a photograph of the respondent (Ms Yelda) with the caption “Feel great – lubricate!” Ms Yelda did not consent to the caption or the use of the photograph in this way. At NCAT, the Tribunal and Appeal Panel found Vitality Works had contravened s 22A of the Anti-Discrimination Act 1977 (NSW). Sydney Water was also found guilty of sexual harassment and sex discrimination, but did not appeal. Vitality Works appealed to the Court of Appeal.
Held (dismissing the appeal):
(i) Whether conduct amounts to “other unwelcome conduct of a sexual nature” within the meaning of s 22A of the Anti-Discrimination Act is a question of fact having two parts. Whether the conduct is “unwelcome” is a subjective question determined by reference only to the complainant’s state of mind. Whether the conduct is “conduct of a sexual nature” is a question of fact, ascertained objectively ([34], [81]-[82]).
(ii) The clear words of the statute and the subject matter, scope and purpose of the Anti-Discrimination Act make it clear that the subjective intention of the alleged perpetrator to engage (or not engage) in “other unwelcome conduct of a sexual nature” is not an element of sexual harassment. If subjective intention were considered, in effect, the greater the subjective tolerance of sexually inappropriate conduct on the part of the sexual harasser, the more difficult sexual harassment would be to prove ([81], [96], [98]).
(iii) The breadth of the conduct amounting to “other unwelcome conduct of a sexual nature” should not be read down or confined by reference to limits or restrictions which do not appear in the statute. That term includes sexually suggestive “jokes” and comments, including “jokes” and comments containing a double meaning. Innuendo, insinuation, implication, overtone, undertone, horseplay, hint, winks or nods are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome ([36], [97], [100]-[103], [105], [107]-[109], [125]).
(iv) The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries. The scope of the term “conduct of a sexual nature” in s 22A is properly construed with an understanding of those matters ([125]).
(v) The test of whether a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by the proved conduct is an objective test ([37]).
(vi) Both Vitality Works and Ms Yelda were “workplace participants” at Sydney Water. The term “workplace participant” in s 22B of the Anti-Discrimination Act describes a broad relational connection. The Sydney Water depot in which the poster was displayed was a “workplace” of each party for the purposes of s 22B(9). The conduct occurred at the same time in the workplace which gave rise to the relevant statutory connection of being a workplace participant ([39], [85]-[86]).
(vii) The conduct for which Vitality Works was responsible, that is, the design, publication, display and distribution of the poster, was plainly “unwelcome conduct of a sexual nature” ([76]-[77], [109]).
(viii) The conduct of more than one actor may, depending on the circumstances, properly be the subject of a finding of sexual harassment. That is even more so in the case of two corporate defendants, where the activities of various employees and agents may be attributed to more than one such corporate defendant. Vitality Works’ erroneous suggestion that two defendants cannot be found jointly responsible for sexual harassment would effect a very substantial limitation on the operation of ss 22A and 22B without statutory reason ([57]).
(ix) Vitality Works and Sydney Water were each responsible for the publication of the poster and had each directly contravened s 22B of the Anti-Discrimination Act. Vitality Works was not liable under s 52 as a “third party” to the harassment. No error was shown in the Appeal Panel’s decision that Vitality Works and Sydney Water were persons “jointly engaged” in the sexual harassment of Ms Yelda ([31]-[33], [52]-[53], [58]-[60], [63], [65]).
Read the decision on the NSW Caselaw website.
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| Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
15 July 2021 - Bell P, Brereton and McCallum JJA
In sum: The Court of Appeal dismissed an appeal by the Secretary of the Department of Planning, Industry and Environment, which sought to set aside a subpoena for production issued by the respondent to the Secretary in relation to proceedings in the Land and Environment Court. The Secretary claimed the subpoena lacked any legitimate forensic purpose.
Facts: For the purposes of proceedings in the Land and Environment Court, the respondent issued a subpoena for production to the appellant (the Secretary). The Secretary contended that, in the Land and Environment Court, the primary judge misconstrued and consequently misapplied the Court of Appeal’s earlier decision in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 (ICAP), in which leave to appeal from a decision to set aside a subpoena issued in civil proceedings on the ground that it lacked legitimate forensic purpose was refused. In that case, the judge at first instance said that it “must be shown that t is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will” (emphasis added). The Court of Appeal specifically upheld that paragraph of the judgment, but in doing so said “documents the subject of the subpoena ‘will materially assist’ the applicants’ case” (emphasis in original) ([1]-[2], [8]-[9]).
The primary judge, in the Land and Environment Court, identified the test as whether or not “it is likely that the documentation will materially assist on an identified issue, or that there is a reasonable basis beyond speculation that it is likely that the documentation will materially assist on an identified issue, and not that the documentation will materially assist the [respondent’s] case” ([10]-[11]).
The Secretary contended that the relevant test stated in ICAP for determining whether or not a subpoena should be set aside was whether or not the documents sought by the subpoena would “materially assist the case of the party which issued the subpoena”. The Secretary submitted that the respondent could not show that the documents sought to be produced by way of subpoena were likely to assist the respondent’s case ([7]-[8]).
Held (granting leave to appeal and dismissing the appeal):
(i) The power to set aside a subpoena is but an instance of the Court’s power to regulate court processes, and, in particular, to intervene to prevent abuse of court processes. The notion of “legitimate forensic purpose” is converse of an abuse of process; a subpoena will self-evidently be an abuse of process if it is not issued for a legitimate forensic purpose, of which it is an instance if it has not been issued bona fide for the purpose of obtaining apparently relevant evidence. The Court’s power to regulate and protect its processes is not restricted to defined and closed categories ([32], [60], [88]).
(ii) Inability to show assistance of a subpoena to the issuing party’s case does not rule out the existence of a legitimate forensic purpose. However a subpoena is more likely to have been issued for a legitimate forensic purpose where it can be shown that the subpoenaed material will assist the issuing party’s case. If the subpoenaed material is “apparently relevant” to the issues in the case, that is, if it can be shown that it is likely that it will add, in one way or another, to the relevant evidence in the case, or if the material bears upon the examination of witnesses expected to be called, it is sufficient and prima facie evidence of a legitimate forensic purpose. This is consistent with the purpose of subpoenas in facilitating justice by requiring production of documents capable of casting light on the issues ([56], [61], [63]-[65], [70], [80], [89]).
(iii) The word “apparent” admits of the possibility that the documents sought may not ultimately turn out to be relevant. “Apparent relevance” may be ascertained by an examination of the description or identification of the documents sought in the schedule to the subpoena in light of the issues in the case ([68]).
(iv) Requiring proof that material sought is likely to advance the issuing party’s case would require that party to be able to predict the contents of documents, and unduly constrain its ability to investigate the facts. It is sufficient reason not to set aside a subpoena if the subpoenaed documents can plausibly be seen to relate to an issue in the proceedings or “cast light” on such an issue, and the subpoena is not otherwise too vague or oppressive. What is required by the interests of justice will be formed by the nature of the proceedings and any available legislative guidance ([57], [70], [90]).
Read the decision on the NSW Caselaw website.
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| Supreme Court of New South Wales
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| AS by her tutor SS v NSW Public Guardian [2021] NSWSC 889
22 July 2021 - Robb J
In sum: The Supreme Court dismissed an appeal from the NCAT Appeal Panel regarding a guardianship order made by the Tribunal. There was no error of law on the part of the Tribunal in its appointment of the Public Guardian as a guardian of AS, rather than appointing AS’s mother, and the Tribunal complied with the statutory requirements and considerations set out in the Guardianship Act 1987 (NSW).
Facts: AS suffers from paranoid schizophrenia, among other serious medical conditions. Her sister, SS (the sister), lives in Sydney with her, and AS’s mother, CS (the mother), lives in WA. In June 2020, on the application of the mother and the sister, the Tribunal appointed the sister as AS’s guardian, and the mother as her alternate guardian for six months, to make decisions about AS’s accommodation, services, healthcare, legal services and consent to medical and dental treatment ([2]-[5]).
As part of an end of term review, and a review requested by AS’s psychiatric and medical care provider, the Tribunal in November 2020 appointed the NSW Public Guardian as AS’s guardian for four months. The mother sought review of that decision, but the Tribunal declined to review the order; an appeal to the Appeal Panel was also dismissed ([6]-[7]).
In March 2021 a review was conducted by the Tribunal on the basis of a further application made by the mother and an application by the NDIS Specialist Support Group, in which the Public Guardian was appointed for a further 12 months ([8]-[10]).
The present proceedings were commenced by summons filed by the sister in the name of AS. The only question is whether the Tribunal wrongly appointed the Public Guardian when it ought to have appointed the mother ([14], [25]).
Held (refusing leave to appeal and dismissing the summons):
(i) The complaints made by the sister do not go so far as to say there was no evidence to support a particular finding of fact or that the particular finding of fact was so unreasonable that no reasonable decision-maker could make it, these being two possible questions of law described in Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13]. The formulation of these examples of errors of law in the fact-finding process are demonstrable of how relatively extreme the flaw in the fact-finding process must be before it will be treated as an error of law ([30]).
(ii) If there is some other person who can be appointed as a guardian, there is a prohibition on appointing the Public Guardian in a continuing guardianship order: Guardianship Act 1987 (NSW), s 15(3). It is unclear whether the sister’s complaint that the Tribunal failed to consider the evidence to properly apply the statutory provision is a claim that the Tribunal failed to consider the prohibition, or a claim that accepts the Tribunal applied the correct legal principle, but alleges its process of reasoning based upon its consideration of the evidence was incorrect. The former is an error of law as described in Prendergast, but the latter is an error of fact, not an error of law. The Tribunal’s reasons show that it referred to ss 15(3) and 17(1) and correctly directed itself as to the mandatory legal test it had to apply, and the sister’s submissions indicate that she seeks to challenge the decision made by the Tribunal on the facts ([32]-[33], [35]-[36], [42]).
(iii) The Tribunal assessed the mother’s ability under s 17(1)(c), and found a person must be able to exercise the functions in accordance with the principles of s 4 of the Guardianship Act and demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest. The Tribunal must be satisfied that the appointment will result in the policy considerations and principles set forth in the Act being given effect. The expression “able” requires more than mere physical ability; it requires that the proposed guardian could carry out all of the functions of guardianship in accordance with the letter and the policy of the Guardianship Act ([37]-[38]).
(iv) The sister’s ground of appeal that the Tribunal appointed the Public Guardian because of an unfounded suggested conflict between AS and the mother is misconceived, the Tribunal having made no finding of conflict between AS and the mother. To the extent that the Tribunal found there was a deficiency in the mother’s ability to act as guardian, it arose out of her lack of insight and inability to acknowledge any shortcomings in the way she has previously dealt with differences in opinion or concerns about AS’s care and support ([43]-[46]).
(v) Leave to appeal on a ground other than a question of law was refused; if leave is to be granted, the Court generally needs to be satisfied that there is a question of principle or policy, or a manifest error in the decision or the decision-making process under review. The conclusions that the Tribunal reached were entirely justifiable; the Tribunal was entitled, on the evidence before it, so far as that evidence was disclosed in the present proceedings, to make the findings and orders that it made ([57]-[61], [64]).
Read the decision on the NSW Caselaw website.
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| Federal Court of Australia
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| Singh v Minister for Immigration [2021] FCA 755
6 July 2021 - Perram J
In sum: The Federal Court allowed the appeal of the appellant spousal visa applicant, and found that the Federal Circuit Court erred in finding that the Administrative Appeals Tribunal did not fail to consider relevant evidence in its conduct of a review of a decision of a delegate of the Minister.
Facts: In reviewing a failed application for a spouse visa, the Administrative Appeals Tribunal (AAT) found that the appellant (Mr Singh), an Indian citizen, and his spouse, an Australian citizen, were not in a “married relationship” for the purposes of s 5F(2) of the Migration Act 1952 (Cth). Section 5F requires a couple to be validly married and have a mutual commitment to a shared life as a married couple to the exclusion of all others, have a relationship that must be genuine and continuing, and they must live together, or at least not live separately and apart on a permanent basis. The AAT was required to consider various considerations, including “the social aspects of the relationship” under reg 1.15A(3)(c) of the Migration Regulations 1994 (Cth) ([2]).
Four witnesses gave evidence on the nature of the appellant’s relationship with his wife. The appellant argued that the inference which should be drawn was that the AAT had not considered their evidence at all. The respondent submitted that it should be inferred that the AAT had accepted the evidence of all four witnesses, but had concluded that their evidence did not materially assist the appellant, and submitted that the AAT was not bound to consider every item of evidence before it. The evidence of the four witnesses was touched on briefly only three times by the AAT in its decision: first, in a brief reference to the evidence before the AAT; second in quoting a submission from the appellant that a number of his friends knew that his relationship was a genuine one; and third in finding “that when examined the social aspects of the relationship between the parties indicate it was not a spousal one” ([7]-[10], [14]).
The Federal Circuit Court found that the appellant failed to identify any material or significant evidence that was not the subject of genuine intellectual consideration by the AAT. The Court found that the AAT does not have to refer to every item of evidence before it, and is not required to specifically discuss and evaluate every piece of evidence, nor is the AAT bound to accept a witness’ opinions ([19]).
Held (allowing the appeal):
(i) It was suggested in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 that the inference that the Tribunal failed to consider an issue by its failure to expressly address it should not be drawn too readily where: the reasons are otherwise comprehensive and the issue has been dealt with at some point; or it is unnecessary to make a finding because the issues have been subsumed by findings of greater generality; or because a factual premise upon which the contention rests has been rejected. In this case, it is likely the AAT forgot to deal with the evidence. While the evidence was mentioned briefly, it could not be accepted that the Tribunal undertook an active intellectual process towards that evidence ([14]-[17]).
(ii) The Federal Circuit Court found that the AAT need not refer to every piece of evidence, and that there was no significant or material evidence which the AAT did not refer to. This is “entirely erroneous” and “reflects a complete lack of intellectual engagement with the argument which was being put”, having gathered disparate quotes from authorities and failed to form cohesive reasoning, notably as some of these authorities had been set aside ([19]-[21]).
(iii) The AAT is bound not only to consider evidence that is unfavourable to the appellant, but also to consider that which is favourable to the appellant ([2], [21]).
Read the decision on the Federal Court of Australia website.
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| | Decisions of Interest Bulletin
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| | DK v Director of Public Prosecutions [2021] NSWCA 134
APPEALS – Nature of appeal – Appeal by way of rehearing – Appeal against sentence brought by the Director of Public Prosecutions under s 23(1) of the Crimes (Appeal and Review) Act – Whether Director required to establish error – whether the District Court has a “residual discretion” to dismiss the appeal notwithstanding a finding that the sentencing decision entailed error |
| P & S Kauter Investments Pty Ltd v Arch Underwriting at Lloyds Ltd [2021] NSWCA 136
INSURANCE – professional indemnity insurance – claims made and notified policy – where insurers notified within policy period of “chance of a claim” by insured’s clients for any loss “that may be incurred” – whether notification of “facts that might give rise to a claim” engaging Insurance Contracts Act 1984 (Cth), s 40(3) – whether loss more than a potential possibility on notified facts
INSURANCE – non-disclosure and misrepresentation – where dispute about extent of disclosure – whether non-disclosure entitling insurers to reduce liability to nil under Insurance Contracts Act 1984 (Cth), s 28(3) – whether evidence that insurers would not have issued policy but for non-disclosure directed to undisclosed matters distributively or taken together
INSURANCE – non-disclosure and misrepresentation – where insurers seek to avoid policy for fraudulent misrepresentation under Insurance Contracts Act 1984 (Cth), s 28(2) –whether fraudulent misrepresentations specifically pleaded – whether misrepresentations concerning matters of fact or statements of opinion
COSTS – where separate proceedings against same defendants heard together – where most issues of fact and law common or closely related – where plaintiffs and defendants represented by the same lawyers in each proceeding – whether plaintiffs should be jointly and severally liable for defendants’ costs |
| JFIT Holdings Pty Ltd t/as New Dimensions Health & Fitness v Powell [2021] NSWCA 137
NEGLIGENCE – duty of care – formulation of risk – whether formulation too narrow – formulation focussed purely and precisely on the circumstances in which injury suffered – more generalised formulation would not have affected outcome
NEGLIGENCE – breach – whether risk of harm “not insignificant” – common knowledge that lifting heavy weights from floor level can cause back injury – obvious that leaving weights littering floor of gymnasium would force others to put them away – whether reasonable person would have taken precaution of implementing system of inspecting weights area – constant supervision not required – no reason why staff could not be present during limited problematic period to enforce rules about putting weights away after use
NEGLIGENCE – causation – whether factual causation established – gymnasium member injured when lifting heavy weight from floor level – not within member’s exercise regime – member clearing floor to allow her to exercise – injury due to failure of gymnasium to enforce its own rules |
| Kirby v Health Care Complaints Commission [2021] NSWCA 139
STATUTORY CONSTRUCTION – interpretation – Health Care Complaints Act 1993 (NSW) (HCC Act), s 4 – definition of “disciplinary body” – whether disciplinary body “established under” the Health Practitioner Regulation National Law 2009 (NSW) (National Law) – definition required to be read into HCC Act, s 90B – where Commission referred complaint to the Tribunal (NCAT) under the National Law, s 145C – where NCAT “established under” the National Law – whether NCAT authorised by the National Law to exercise the specified power of a disciplinary body in relation to a registered health practitioner
STATUTORY CONSTRUCTION – interpretation – HCC Act, s 90B – National Law, s 145C – interaction between HCC Act and National Law – where Director of Proceedings determined that the Commission should prosecute complaint before the Tribunal – whether Director of Proceedings acting ultra vires – whether distinction between Commission “prosecuting” the complaint before a disciplinary body and referring the complaint to the Tribunal
PROFESSIONS AND TRADES – health practitioners – dental practitioners – whether Commission referred a complaint against registered dentist to the Tribunal pursuant to s 145C of the National Law
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| Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
CIVIL PROCEDURE – subpoenas – to produce documents or things – application to set aside – legitimate forensic purpose – test for determining the validity of a subpoena issued in civil proceedings – whether sufficient that the documents sought by a subpoena have “apparent relevance” to an issue in the proceedings – whether necessary to satisfy the court that the documents are likely materially to assist the case of the party issuing the subpoena – consideration of bases for setting aside subpoenas
CIVIL PROCEDURE – Subpoenas – Legitimate forensic purpose – origins of concept – converse of abuse of process – whether a party issuing a subpoena will lack a legitimate forensic purpose if unable to demonstrate that documents sought by subpoena likely to assist its case – legitimate forensic purpose may be presumed where documents sought have apparent relevance to matters in issue or are capable of assisting in cross examination
COURTS AND JUDGES – precedential value of decisions of Court of Appeal refusing leave to appeal |
| North Parramatta Residents’ Action Group Inc v Infrastructure New South Wales (No 2) [2021] NSWCA 146
ENVIRONMENT AND PLANNING – development consent – challenge to validity – whether environmental impact statement complied with Environmental Planning and Assessment Regulation cl 7(1)(c) – requirement to consider feasible alternative sites – requirement to consider feasible alternative designs
ENVIRONMENT AND PLANNING – meaning of “feasible alternatives” – requirement for competitive design process – scope of alternative designs – Parramatta Local Environmental Plan, cl 7.10
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| Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147
EMPLOYMENT AND INDUSTRIAL LAW – discrimination – harassment – sexual harassment – where applicant was contracted to design, publish, display and distribute a poster depicting a captioned photograph of the respondent at her workplace – whether conduct was “other unwelcome conduct of a sexual nature” – whether parties were “workplace participants” – Anti-Discrimination Act 1977 (NSW), ss 22A, 22B
CIVIL PROCEDURE – appeal on question of law
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| Johnson v Mackinnon [2021] NSWCA 152
CONSUMER LAW – Misleading or deceptive conduct – Representations – Explicit false representations made in proposal document given to prospective investors in fraudulent betting syndicate scheme masterminded by notorious conman – Appellant a member of partnership promoting scheme – Whether appellant had knowledge of false representations – Whether appellant jointly and severally liable for misrepresentations made in ordinary course of business of partnership – Liability established
APPEALS – From findings of fact and credibility – Function of appellate court – Circumstantial case – Briginshaw standard – Inferences from primary facts – Whether open to be comfortably satisfied various factual findings, including inference that appellant knew of false proposal representations
PARTNERSHIPS AND JOINT VENTURES – Relationship of partners to persons dealing with them – Liabilities of partner – Partnership intended to be limited – Unlimited because limited partnership agreement never registered – Joint and several liability for misrepresentations made by other partner in ordinary course of business of partnership
CONSUMER LAW – Misleading or deceptive conduct – Silence or non-disclosure – Whether appellant represented that conman not involved in scheme – Whether appellant had knowledge of various prerequisite facts such as notoriety, involvement, and alias of conman, and of need to conceal such information – Appellant unable to demonstrate any of these findings as glaringly improbable – Appellant ought to have known of reasonable expectation that conman’s involvement would be disclosed – Appellant did not disclose and deliberately concealed conman’s involvement
CIVIL PROCEDURE – Pleadings – Amendment – Late application for amendment on second day of trial – Amendments added alleged liability of appellant for representation by silence and clarified alleged liability of appellant for explicit proposal representations – Whether appellant deprived of opportunity to make “no case” submission – Whether primary judge failed to consider dictates of justice – Not necessary to recite considerations seriatim – Appellant not deprived of fair and reasonable opportunity to meet case – Pleadings sufficiently clear and specific, and not unfairly open-ended
CIVIL PROCEDURE – Pleadings – Construction of pleadings – Subparagraphs of pleadings not in precise correspondence with each other – Whether prejudicial construction by primary judge in finding that pleadings nevertheless sufficiently clear
CONSUMER LAW – Misleading or deceptive conduct – Causation or reliance – Whether respondent’s decision to invest caused by proposal representations – Whether prospective investor would have been deterred by knowledge of involvement of notorious conman – Gullible investors not disentitled to protection
CONSUMER LAW – Misleading or deceptive conduct – Remedies – Quantification of damages – Whether primary judge failed to account for group members’ prior recoveries and respondent’s trading profits received from scheme – Award of damages below only for respondent’s unpaid loan to scheme – Prior recoveries and trading profits irrelevant
CIVIL PROCEDURE – Representative proceedings – Remedies – Award of damages to individual group member
CIVIL PROCEDURE – Court of Appeal – Notice of contention – Reliance on claim in deceit in addition to misleading and deceptive conduct – Deceit considered briefly in judgment below – Contention material and advances respondent’s case in circumstances where appellant claims apportionment for misleading and deceptive conduct but cannot do the same for claim in deceit – Notice of contention upheld and decisive of appeal – Unnecessary to consider further aspect of notice, namely conspiracy
TORTS – Miscellaneous Torts – Deceit – Relationship with misleading or deceptive conduct – Apportionment defence available for misleading and deceptive conduct but not for deceit
TORTS – Joint and several liability – Apportionment – Primary judge disallowed late attempt to raise apportionment defence – Disallowance denied a real prospect of significant reduction in liability – Strongly arguable error in disallowance – Unnecessary to consider further as respondent nevertheless able to rely on non-apportionable claim in deceit |
| Great Northern Developments Pty Ltd v Lane [2021] NSWCA 150
APPEALS – right of appeal – scope of right – excess or lack of jurisdiction below – jurisdiction of the District Court – where there is a common law cause of action for money had and received
APPEALS – right of appeal – scope of right – excess or lack of jurisdiction below – jurisdiction of the District Court – whether proceeding is for “relief against fraud of mistake” – District Court Act 1973 (NSW), s 134
CONTRACTS – breach of contract – consequences of breach – right to damages – where total failure of consideration
CONTRACTS – termination – consequences of termination – restitutionary claims – where total failure of consideration
JUDGMENTS AND ORDERS – interest – pre-judgment interest – rate applicable – where respondent succeeded on restitutionary claim – whether it was open to the primary judge to select the same rate of interest agreed to by the parties – Civil Procedure Act 2005 (NSW), s 100 |
| Wraydeh v Fairfax Media Publications Pty Limited; Wraydeh v Nationwide News Pty Limited [2021] NSWCA 153
DEFAMATION – defences – common law qualified privilege – privileged occasion – privileged communication – whether communication relevant to privileged occasion – no test of necessity – news publications based on police media releases – additional information in publications not foreign to occasion of privilege
DEFAMATION – remedies – compensatory damages – whether assessment of damages manifestly inadequate – primary judge justified in using appellant’s failure to correct the record as indicative that the appellant was not hurt and distressed as claimed
DEFAMATION – remedies – compensatory damages – whether assessment of damages manifestly inadequate – adverse credibility findings |
| | 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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