| | | | | NCAT Legal Bulletin Issue 9 of 2020
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| The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
This issue features case summaries of recent decisions from the New South Wales Court of Appeal and Western Australia Court of Appeal, including:
- Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232 - in which the NSW Court of Appeal allowed an appeal from a decision of an NCAT Appeal Panel, on the basis that the Appeal Panel erred in (a) holding that persistence in maintaining claims that are “bad in law” do not fall within the scope of the collateral purpose principle such that they should be summarily dismissed, and (b) holding that the respondent's history of litigation in the Tribunal was not relevant or probative in determining whether the proceedings below were vexatious.
- Konstantinidis v Council of the Law Society of New South Wales [2020] NSWCA 227 - in which the NSW Court of Appeal allowed an appeal by consent from the Occupational Division of NCAT, on the basis that the Tribunal lacked jurisdiction to determine the respondent's application where the respondent had not undertaken the “compound exercise” required by ss 237 and 240 of the Legal Profession Act 2004 (NSW) (now repealed). However, the Court declined to make proposed consent orders which would retrospectively anonymise the appellant in the decisions already published by the Tribunal, where the Court did not consider that those orders were "desirable" in the sense referred to in s 64(1) of the NCAT Act.
- Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213 - in which the NSW Court of Appeal dismissed an appeal from an Associate Judge in the Supreme Court, relating to the power of the Tribunal to make costs orders in the first instance and internal appeal proceedings below. The Court of Appeal held (a) unanimously, that the Appeal Panel's costs order was within power, being entirely consequential on the question of whether the Tribunal had jurisdiction to determine the appellant's application, and (b) by majority, that the costs order at first instance was also within power, notwithstanding that the costs incurred in those proceedings also related to issues other than the question of jurisdiction.
- Australian Leisure and Hospitality Group Pty Ltd v Commissioner of Police [2020] WASCA 157 - in which the WA Court of Appeal dismissed an appeal from the WA Supreme Court, holding that the primary judge did not err in finding that the concept of the "public interest" in the context of s 38(2) of the Liquor Control Act 1988 (WA), as a matter of construction, does not permit consideration of general economic benefits, beyond benefits to the public interest specifically relating to the sale, supply and consumption of liquor. In doing so, the Court of Appeal commented on the proper approach to ascertaining the meaning of the term "public interest" when used in a particular statutory context.
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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| Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232
24 September 2020 - Macfarlan, Leeming, McCallum JJA
In sum: The Court of Appeal allowed an appeal from a decision of an NCAT Appeal Panel, on the basis that the Appeal Panel erred in (a) holding that persistence in maintaining claims that are “bad in law” do not fall within the scope of the collateral purpose principle such that they should be summarily dismissed, and (b) holding that Mr Zonnevylle’s history of litigation in the Tribunal was not relevant or probative in determining whether the proceedings below were vexatious.
Facts: By way of background, as mentioned in the July 2020 edition of this Appeal Panel bulletin, Mr Zonnevylle has been involved in a substantial number of proceedings in the Tribunal arising from access applications under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act). In April 2020, the Tribunal made an order under s 110 of the GIPA Act that Mr Zonnevylle is not permitted to make an access application to any of a number of agencies, including the Department of Education, without first obtaining the approval of the Tribunal.
In October 2018, Mr Zonnevylle applied to NCAT for review of a deemed refusal by the Minister for Education to determine an access application under the GIPA Act ([4]).
After Mr Zonnevylle’s application was lodged, the Minister proceeded to decide the access application, as allowed by s 63(2), deciding to provide some documents, but that most of the information sought was “not held” by the Minister ([5]).
After determining the access application, the Minister sought to have the review proceedings summarily dismissed on the ground that they were being maintained for a collateral purpose, namely, to re-litigate allegations of misconduct, illegality and lack of good faith on the part of the Minister and officers of the Department ([8]).
The Tribunal acceded to that application and dismissed the proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Mr Zonnevylle appealed that decision to the Appeal Panel of the Tribunal. The Appeal Panel allowed the appeal and set aside the order summarily dismissing the review application. The Minister sought leave to appeal from the Appeal Panel’s decision ([9]-[10]).
Held (allowing the appeal, setting aside the Appeal Panel’s orders, and substituting an order dismissing the internal appeal):
(i) The issue in this appeal was the scope of the power of NCAT to dismiss proceedings it considers to be vexatious ([3]).
(ii) The Appeal Panel below relied on the comments of the High Court in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 that dismissal for abuse of process in a civil context is justified when “the issues to be considered go beyond a question as to whether the claim or defence in question is bad in law” ([40]-[43]).
(iii) However, it does not follow from this that persistence in the claims that are bad in law can never warrant the dismissal of the proceedings ([44]).
(iv) The Appeal Panel erred in holding that Mr Zonnevylle’s persistence in making claims which were “bad in law” (and had been held to be so by the Tribunal) did not fall within the collateral purpose principle ([11], [44]).
(v) It may be accepted that a party who persists in making claims which are “bad in law” may in an appropriate case be dealt with by the making of a costs order, as the Appeal Panel suggested, but that is not the only possible response ([46]).
(vi) The Appeal Panel also hinted at an unduly narrow view of the Tribunal’s power to control its process, in commenting that the Minister had not suggested there was any issue estoppel preventing Mr Zonnevylle from re-litigating an issue. While this was true, it said little about whether the proceedings were vexatious ([47]).
(vii) It is well established that an attempt to re-litigate a matter that has already been determined may amount to an abuse of process ([48]).
(viii) The Appeal Panel did not explain why Mr Zonnevylle’s persistence in serious allegations of misconduct which had already been dismissed by the same Tribunal for want of jurisdiction (in an interlocutory decision) did not demonstrate use of the proceedings for a collateral purpose ([48]).
(ix) The Appeal Panel erred in holding that the history of Mr Zonnevylle’s prior litigation was not logically probative in determining whether the review proceedings were vexatious. This history demonstrated a determination to persist in the pursuit of allegations previously found to have been baseless and to persist in wasting the Tribunal’s time and resources by urging it to make findings it has no power to make. In the Court of Appeal’s view, the history was plainly relevant, and the Appeal Panel was wrong to disregard its probative value ([52]-[53]).
Read the decision on the NSW Caselaw website. |
| Konstantinidis v Council of the Law Society of New South Wales [2020] NSWCA 227
23 September 2020 - Macfarlan, Gleeson JJA, N Adams J
In sum: The Court of Appeal allowed an appeal by consent from the Occupational Division of NCAT, on the basis that the Tribunal lacked jurisdiction to determine the application where the respondent had not undertaken the “compound exercise” required by ss 237 and 240 of the Legal Profession Act 2004 (NSW). However, the Court declined to make proposed consent orders which would retrospectively anonymise the appellant in the decisions already published by the Tribunal below.
Facts: After investigating two complaints received about the professional conduct of the appellant, Mr Konstantinidis, the Council of the Law Society of NSW (the Council) applied to NCAT seeking disciplinary findings and orders alleging that Mr Konstantinidis was guilty of professional misconduct ([5]).
The Tribunal found Mr Konstantinidis guilty of professional misconduct in two respects and guilty of unsatisfactory professional conduct in one other respect ([7]). In a separate decision on penalty, the Tribunal reprimanded Mr Konstantinidis and ordered him to pay a fine of $8,000, to undergo a specified education course, and to pay the Council’s costs of the proceedings ([8]).
Mr Konstantinidis appealed against both of the Tribunal’s decisions, on the basis that the Tribunal lacked jurisdiction to hear and determine the complaints against him due to the Council’s failure to comply with the “compound exercise” required by ss 537(2) and 540 of the Legal Profession Act. Those provisions have since been repealed ([9]).
In support of the jurisdictional argument, Mr Konstantinidis relied upon the decision in Council of the Law Society of New South Wales v Levitt [2018] NSWCA 247 (Levitt). Mr Konstantinidis submitted that, when the Council resolved to commence proceedings in the Tribunal, it failed to apply itself to the questions prescribed by s 537(2) (i.e. whether s 540 applied, and whether there was a reasonable likelihood that the Tribunal would find Mr Konstantinidis to have engaged in unsatisfactory professional conduct or professional conduct), and thus failed to consider the possible summary conclusion of the complaints pursuant to s 540 ([10]).
Mr Konstantinidis also submitted that, as a model litigant, the Council should have drawn the decision in Levitt to the attention of the Tribunal and Mr Konstantinidis ([11]).
The Council conceded that the Tribunal below lacked jurisdiction, and the parties agreed on proposed consent orders to dispose of the appeal ([2]).
Held (allowing the appeal by consent, setting aside the Tribunal’s decisions below, but declining to make proposed consent orders retrospectively anonymising Mr Konstantinidis in the published decisions below):
(i) The Court of Appeal “undoubtedly has power to dispose of an appeal by consent”. In this case, the Court agreed to make the proposed consent orders allowing the appeal, setting aside the Tribunal’s decision, and ordering that the Council pay Mr Konstantinidis’s costs. However, it was not disposed to make orders requiring the reasons for the Tribunal’s decisions to be removed from the CaseLaw website and other legal databases, or anonymising Mr Mr Konstantinidis and his practice in the decisions below ([2]-[3]).
(ii) The Court of Appeal described it as “most unfortunate” that the Council did not bring the jurisdictional point to the Tribunal’s attention, noting that the Tribunal was part heard when the decision in Levitt was handed down. Nor should the Council should have waited until Mr Konstantinidis had filed his written submissions in the Court of Appeal before conceding this point ([14]-[15]).
(iii) Although the jurisdictional argument was not relied upon by Mr Konstantinidis in the Tribunal proceedings, the Court of Appeal was satisfied this was an exceptional case where the appellant should be permitted to rely upon a new point on appeal, given the Council’s acceptance that the new point could not possibly have been met by further evidence in the Tribunal ([16]).
(iv) In relation to the requested anonymisation of Mr Konstantinidis’s name in the Tribunal’s published decisions, the Court of Appeal noted that, given the appeal was a rehearing pursuant to s 75A of the Supreme Court Act 1970 (NSW), it had all the powers and duties of the body from which the appeal was brought (i.e. the Tribunal). Accordingly, it was open to the Court of Appeal to exercise the Tribunal’s power to restrict disclosures concerning the proceedings pursuant to s 64(1) of the NCAT Act ([19]).
(v) It has been said in relation to non-publication orders that there is a sharp contrast between the relatively onerous requirement of s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the CSNO Act) in relation to court proceedings and s 64(1) of the NCAT Act. The power in s 8 of the CSNO Act requires the Court’s satisfaction about what is “necessary”, whereas the power under s 64(1) requires the Tribunal’s satisfaction about what is “desirable” ([20]).
(vi) In this case, the Court of Appeal was not persuaded that the anonymisation order requested by Mr Konstantinidis was desirable, as ([21]-[24]):
(a) the hearing before the Tribunal was conducted in public, and the Tribunal did not make a non-publication order under s 64(1);
(b) the appeal to the Court of Appeal was heard in open court, and no application was made for a non-publication order under the CSNO Act;
(c) the onus was on the legal practitioner to demonstrate that an order is “desirable”;
(d) the bare assertion of significant adverse consequences to Mr Konstantinidis’s professional and personal reputation was not supported by any evidence;
(e) it would be inconsistent with the principle of open justice if Mr Konstantinidis was identified by name in the Court of Appeal’s decision, but at the same time the Court, exercising the powers of the Tribunal, made a non-publication order retrospectively anonymising his name in the reported decisions of the Tribunal; and
(f) there should be transparency in relation to the outcome of the disciplinary proceedings in the Tribunal, and the proposed anonymisation order was not desirable to achieve the due administration of justice in those proceedings.
Read the decision on the NSW Caselaw website.
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| Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213
8 September 2020 - Macfarlan, Leeming, White JJA
In sum: The Court of Appeal dismissed an appeal from an Associate Justice in the Supreme Court, which in turn was an appeal from costs orders made by an internal Appeal Panel and a Senior Member at first instance in NCAT. The Court of Appeal held (a) unanimously, that the costs order made by the Appeal Panel was within power, being entirely consequential on the question of whether the Tribunal below had jurisdiction, and (b) by majority, that the costs order made by the Senior Member was also within power, notwithstanding that the costs incurred also related to issues other than the question of jurisdiction.
Facts: Mr Wilson initially commenced proceedings NCAT in November 2015. After this followed a number of decisions, internal appeals, a transfer of the matter to the District Court and then back to NCAT, and a number of amendments to Mr Wilson’s points of claim. In June 2018, a Senior Member in NCAT dismissed the proceedings for want of jurisdiction ([35]).
Mr Wilson appealed to the Appeal Panel, which ordered that instead of being dismissed, the proceedings should be transferred to the Local Court. In sum, the Appeal Panel held that the appellant’s claim in the Tribunal purportedly sought to invoke federal jurisdiction (namely, the application of provisions in the Superannuation Industry (Supervision) Act 1993 (Cth) and its associated regulation), and the Tribunal had no authority to decide a claim falling within federal judicial power ([34], [37]).
Consequently, the Appeal Panel ordered that Mr Wilson pay the respondent’s costs of the internal appeal. The Senior Member, who had delayed determining the question of costs until after the Appeal Panel handed down its decision, also ordered that Mr Wilson pay the respondent’s costs of the proceedings bellow ([34]-[36]).
Mr Wilson sought leave to appeal against, or judicial review of, the costs orders of the Appeal Panel and of the Senior Member. That application was dismissed by Harrison AsJ on 21 November 2019 ([38]).
Mr Wilson then sought leave to appeal to the Court of Appeal from the orders of Harrison AsJ, which was granted in April 2020 ([39]).
As determined in the Court of Appeal’s decision granting leave, there were two issues on appeal:
(a) Whether the Appeal Panel and the Senior Member had power to make the costs orders in question; and
(b) If not, what orders should have been made.
Held (dismissing the appeal against the costs orders made by both the Appeal Panel and the Senior Member):
(i) NCAT is under a duty to satisfy itself whether a claim made to it is within its limited authority. That duty carries with it authority to determine whether it has jurisdiction to determine a claim. Where it determines that it does not, NCAT may dismiss or transfer the proceedings to a court that does have jurisdiction to determine them. In deciding that question, NCAT is not exercising federal judicial power (Leeming JA at [14]-[15], MacFarlan JA agreeing at [1]).
(ii) In proceedings where NCAT lacks jurisdiction for constitutional reasons, any substantive orders made by NCAT are liable to be set aside. However, the fact that the proceedings cannot be heard and determined on their merits by NCAT does not mean that NCAT is denied power to order the applicant to pay the respondent’s costs, in an appropriate case, of and incidental to the jurisdictional issue (Leeming JA at [3], Macfarlan JA agreeing at [1]).
(iii) Further, a majority in the Court of Appeal held that NCAT’s power to award costs of proceedings which are dismissed or removed for want of jurisdiction is not confined to costs that are of and incidental to the jurisdictional issue. Making a costs order which extends to costs incurred in relation to non-jurisdictional issues, in cases where there has not been a purported exercise of a non-existent jurisdiction (i.e. where the non-jurisdictional issues were not actually determined), does not contravene the implied limitation on power identified in Burns v Corbett (Leeming JA at [4], 27], [31], Macfarlan JA agreeing at [1], White JA disagreeing at [82]).
(iv) In this case, there was no purported determination of an aspect of the proceedings outside of the jurisdictional issue, either by the Appeal Panel or the Senior Member. The costs orders made by the Appeal Panel and the Senior Member were within power, as the only determination was as to the anterior question of whether the Tribunal had authority to decide (Leeming JA at [32], Macfarlan JA agreeing).
(v) White JA dissented in part, holding that the costs order made by the Senior Member was not within power, to the extent that it was not consequential on the anterior question of jurisdiction (cf the costs order in the Appeal Panel proceedings, where jurisdiction was the only issue in dispute) (at [82]-[90]).
(vi) White JA also referred to the decision in Qantas Airways Limited v Lustig (2015) 228 FCR 148; [2015] FCA 253, in which Perry J held that the Victorian Civil and Administrative Tribunal lacked power to transfer proceedings instituted in the Tribunal over which it lacks jurisdiction to another court, but rather, had power only to dismiss such proceedings and make any consequential costs order. However, no issue arose in this appeal as to the authority of an NCAT Appeal Panel to transfer proceedings to the Local Court (White JA at [79]).
Read the decision on the NSW Caselaw website. |
| Western Australia Court of Appeal
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| Australian Leisure and Hospitality Group Pty Ltd v Commissioner of Police [2020] WASCA 157
24 September 2020 - Quinlan CJ, Buss P, Vaughan JA
In sum: The Court of Appeal of Western Australia dismissed an appeal from the Supreme Court, holding that the primary judge did not err in finding that the concept of the “public interest” in the context of s 38(2) of the Liquor Control Act 1988 (WA) (the LC Act) does not permit consideration of general economic benefits, beyond benefits to the public interest specifically relating to the sale, supply and consumption of liquor.
Facts: In 2014 the Australian Leisure and Hospitality Group (ALH) lodged an application for approval to redevelop the Leisure Inn in Rockingham pursuant to s 77 of the LC Act. The Leisure Inn comprises several bars and an associated BWS liquor store. ALH proposed to redevelop the existing bars and to replace the BWS liquor store with a Dan Murphy's liquor store ([72]).
The Director of Liquor Licensing decided that s 38(2) of the LC Act applied to the application, such that ALH was required to satisfy the licensing authority that granting the application was “in the public interest” ([74]).
The Commissioner of Police subsequently lodged a notice of intervention and notice of objection in respect of ALH’s application, and the Director referred the application to the Liquor Commission pursuant to s 24(1) of the LC Act [75]-[77]).
In 2017 the Liquor Commission granted ALH's application. The Commissioner of Police appealed against the Commission's decision. The primary judge allowed the appeal, quashed the Commission's decision and remitted the application to the Commission. ALH brought an appeal ([84]-[85]).
The issue on appeal was the proper construction of the LC Act, in particular whether, in determining the “public interest” for the purpose of s 38 of the LC Act, the Commission may have regard to potential economic benefits that might accrue from the grant of the application, but which are not concerned with the liquor, tourism and other hospitality industries or the use and development of licensed premises ([1]).
Held (dismissing the appeal):
(i) The starting point for the Court’s analysis was identification of the concept of public interest in the context of s 38(2) and s 77 of the LC Act (Quinlan CJ and Vaughan JA at [50]).
(ii) The term “public interest” has long informed judicial discretions and evaluative judgments at common law. When used in a statute, the term imports a discretionary value judgment, but a decision-maker is not free to apply idiosyncratic notions of public interest. If the statute provides no positive indication of the considerations by reference to which a decision is to be made, a general discretion by reference to the criterion of “the public interest” will be confined by the subject matter, scope and purpose of the statute (Quinlan CJ and Vaughan JA at [36]-[38]; Buss P at [165]).
(iii) When used in a particular context – here s 38(2) and s 77 of the LC Act – the term “public interest” is not at large. In exercising a statutory power or discretion under the Act, where s 38(2) applies, the Commission must assess public interest by reference to the place of the section in the statutory scheme, the purpose of the Act as a whole and the purpose of s 77 (that being the specific power or discretion to which s 38(2) is applying). There is a difference between what, in general terms, might be characterised as a public benefit – as the economic benefit factors in this case undoubtedly were – and identification of the concept of the public interest in the context of s 38(2) and s 77 (Quinlan CJ and Vaughan JA at [49]-[50], Buss P at [187]).
(iv) Having regard to the subject matter of the LC Act, the primary and secondary objects in s 5, and the language used in the Act’s long title, the Court construed the public interest criterion in s 38(2) as encompassing the public interest in relation to the sale, supply and consumption of liquor (Quinlan CJ and Vaughan JA at [32], [52]-[53]; Buss P at [188]-[191]).
(v) Having construed the concept of the public interest in this limited way, the Court considered that economic benefits of some kinds were a permissible consideration in evaluating whether ALH's application was in the public interest – e.g. those which might enhance the proper development of the liquor, tourism and other hospitality industries and the use and development of licensed premises in the area (Quinlan CJ and Vaughan JA at [55]).
(vi) However, the economic benefit factors relied on by the Commission were not of this type. Rather, they were concerned with general economic benefits that would accrue in the local area as a result of the redevelopment – e.g. employment opportunities, a new staff training facility, contribution to local “vitality”, potential benefits to nearby businesses. These were not permissible considerations in evaluating the public interest in the context of s 38(2) and s 77 of the LC Act. Incidental economic advantages accruing to the benefit of those trading or seeking to work or trade in the immediate locality of the licensed premises were “definitely extraneous” to the application of s 38(2) (Quinlan CJ and Vaughan JA at [5], [55]-[56]).
(vii) Put another way, Buss P accepted that the “public interest” referred to in s 33(1) and s 38(2) includes the public interest in obtaining general economic benefits for the liquor, tourism and other hospitality industries from the development and use of licensed premises. However, the LC Act does not contemplate that the “public interest” in this context includes the public interest in obtaining general economic benefits for other industries, or for the community generally. This distinction is not artificial, but is fundamental to the regulatory scheme established under the LC Act (Buss P at [221]-[223]).
(viii) The granting of an application may have positive effects or consequences upon the overall character, quality and enjoyment of life within the locality as a result of the expenditure of money on or in connection with the licensed premises or proposed licensed premises. However, relevant effects or consequences do not include, of themselves, general economic benefits from the development and use of licensed premises (Quinlan CJ and Vaughan JA at [57]; Buss P at [186]).
(ix) The primary and secondary objects specified in s 5, which are consistent with the provisions in the long title, do not, on their proper construction, include the economic benefit considerations taken into account by the Commission in granting ALH's application (Buss P at [197], [201]).
(x) The primary judge was correct to conclude that the economic benefit factors were irrelevant considerations, and that they were not so insignificant that taking them into account could not have materially affected the Commission’s decision (Quinlan CJ and Vaughan JA at [10]; Buss P at [232]).
(xi) Accordingly, the appeal from the primary judge’s decision to quash the Commission’s decision to grant ALH’s application was dismissed (Quinlan CJ and Vaughan JA at [10], [62]; Buss P at [71], [236]).
Read the decision on the eCourts Portal of Western Australia website. |
| | Decisions of Interest Bulletin
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| | Outerbridge trading as Century 21 Plateau Lifestyle Real Estate v Hall [2020] NSWCA 205
CONTRACTS – real estate agent agreement – non-exclusive agents – entitlement to commission – buyer introduced by first agent who then left for holidays when prospect of a sale appeared lost – buyer contacted second agent to look for other properties – sale then revived and completed – whether the first agent was the, or an, effective cause of the sale of the property – mere introduction of the buyer to the property is insufficient – appeal dismissed |
| Wallis v Rudek [2020] NSWCA 207
EQUITY — Equitable interest in property – Family arrangement — Transferee pays off mortgage on property — Equity in property exceeds amount owing — Transferor permitted to remain in property – licence agreement not signed — Relationship breakdown – Baumgartner v Baumgartner equity — Equitable compensation granted.
EQUITY — Equitable remedies — Specific performance — Estoppel — Determination of existence and content of underlying contractual terms.
EQUITY — Equitable remedies — Equitable compensation — Assessment — Valuation of property for purposes of assessment. |
| Secretary, New South Wales Ministry of Health v W [2020] NSWCA 212
STATUTORY INTERPRETATION — jurisdiction – Mental Health Review Tribunal – Mental Health Act 2007 (NSW), s 38(4) – statutory construction – whether Mental Health Review Tribunal has power to order the transfer of an involuntary patient from one mental health facility to another mental health facility, either generally or so as to effect a transfer from one level of security facility to a lesser level of security facility |
| Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213
CONSTITUTIONAL LAW — Judicial power — Whether decision of the NSW Civil and Administrative Tribunal as to its jurisdiction was an exercise of the judicial power of the Commonwealth – Nature of the anterior jurisdiction of the Tribunal to consider its authority to decide
CONSTITUTIONAL LAW — Judicial power — Whether the Tribunal has power to order costs consequential on a dismissal or transfer of proceedings for want of Federal jurisdiction – Whether power to make such an order outside of the State’s legislative competence to confer on the Tribunal– Whether making such an order would occasion the Tribunal impermissibly exercising the judicial power of the Commonwealth |
| Ko v Hall & Ors [2020] VSCA 224
ADMINISTRATIVE LAW – Judicial review – Medical panel – Whether medical panel gave decision outside time prescribed by s 28LZG(3) of Wrongs Act 1958 – Whether giving of decision outside time prescribed makes decision invalid – Whether parties can agree to extension of time after time has expired – Mikhman v Royal Victorian Aero Club [2012] VSC 42 considered – Wrongs Act 1958, s 28LZG(3).
STATUTORY INTERPRETATION – Legislative intention – Statutory purpose – Validity of act done in breach of statutory provision – Construction of statutory provision in its context – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied – Wrongs Act 1958, pt VBA.Ko v Hall & Ors [2020] VSCA 224 ADMINISTRATIVE LAW – Judicial review – Medical panel – Whether medical panel gave decision outside time prescribed by s 28LZG(3) of Wrongs Act 1958 – Whether giving of decision outside time prescribed makes decision invalid – Whether parties can agree to extension of time after time has expired – Mikhman v Royal Victorian Aero Club [2012] VSC 42 considered – Wrongs Act 1958, s 28LZG(3).
STATUTORY INTERPRETATION – Legislative intention – Statutory purpose – Validity of act done in breach of statutory provision – Construction of statutory provision in its context – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied – Wrongs Act 1958, pt VBA. |
| Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232
ADMINISTRATIVE LAW — administrative tribunals – scope of authority of the NSW Civil and Administrative Tribunal to dismiss proceedings as vexatious – where respondent sought review of a decision determining his application for access to information held by a government agency – where respondent persisted in allegations of misconduct against officers of the agency after those allegations had been dismissed by the Tribunal – relevance of history of making similar allegations in other proceedings – where Tribunal’s decision dismissing proceedings as vexatious overturned by Appeal Panel – whether Appeal Panel erred in regarding persistence in claims that were bad in law as being outside the scope of the collateral purpose principle – whether Appeal Panel erred in declining to have regard to previous litigation brought by the respondent
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| Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236
ADMINISTRATIVE LAW – judicial review of decisions of Industrial Relations Commission relating to removal of officer from NSW Police Force – whether IRC erred in law and failed to exercise jurisdiction whilst undertaking statutory task of review under s 181E of the Police Act 1990 (NSW) – whether IRC misapplied s 181F(2) concerning onus of proof – legal, tactical and evidential burdens of proof considered – where decision was not affected by jurisdictional error.
INDUSTRIAL RELATIONS – Industrial Relations Commission – whether the removal of an officer from the NSW Police Force was “harsh, unreasonable or unjust” – whether IRC erred in law and failed to exercise jurisdiction whilst undertaking statutory task of review under s 181E of the Police Act 1990 (NSW) – whether IRC misapplied s 181F(2) concerning onus of proof – legal, tactical and evidential burdens of proof considered.
POLICE – officer removed from NSW Police Force pursuant to s 181D(1) of the Police Act 1990 (NSW) for alleged voluntary consumption of illicit drugs –officer successfully reviewed dismissal pursuant to s 181E of the Police Act – whether IRC misapplied s 181F(2) concerning onus of proof – legal, tactical and evidential burdens of proof considered.
STATUTORY INTERPRETATION – construction of s 181F(2) of the Police Act 1990 (NSW) – whether the removal of an officer from the NSW Police Force was “harsh, unreasonable or unjust”. |
| Australian Leisure and Hospitality Group Pty Ltd v Commissioner of Police [2020] WASCA 157
Liquor licensing – Application by the appellant for leave to alter and redefine existing licensed premises – Application granted by the Liquor Commission – Appeal by the Commissioner of Police against the Liquor Commission's decision allowed by the primary judge – Primary judge quashed the Liquor Commission's decision to grant the appellant's application and remitted the application to the Liquor Commission for reconsideration according to law – Whether the Liquor Control Act 1988 (WA) manifests an intention to exclude from the 'public interest' referred to in s 33(1) and s 38(2) of the Liquor Control Act 'any potential economic benefits' from the granting of a liquor licence – Whether, on the proper construction of the Liquor Control Act, the 'public interest' referred to in s 33(1) and s 38(2) includes the public interest in obtaining 'general economic benefits' from the development and use of licensed premises |
| | 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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