APPEALS — whether Tribunal erred in dismissing Appellant’s application for review pursuant to Administrative Decisions Review Act 1997 on basis that Appellant failed to identify a reviewable administrative decision in accordance with the Act
Judgment of
I R Coleman SC ADCJ, Principal Member
C Mulvey, Senior Member
Appeal – dividing fence – procedural fairness occasioned by absence of Appellant at first instance hearing – whether order was fair and equitable – order requiring the Appellant to pay the full cost of the new fence
Judgment of
S Westgarth, Deputy President
G Sarginson, Senior Member
ADMINISTRATIVE LAW — tow truck operators licence — close associate — assault conviction — fit and proper person to hold a tow truck operators licence — public interest
REAL PROPERTY – STRATA MANAGEMENT – strict duty of repair – onus of proof on scope and consequences of breach – causation and mitigation – measure and quantification of loss – Strata Schemes Management Act 2015 (NSW) ss 106, 122, 124, 232. COSTS – costs orders on severable issues - application of s 104 Strata Schemes Management Act 2015 (NSW) – quarantining of costs orders in favour of appellant – appropriate orders with success on primary matter appealed and remitted but not on a severable matter appealed.
Judgment of
S Westgarth, Deputy President
G Burton SC, Senior Member
ADMINISTRATIVE REVIEW – Firearms Act 1996 – Application for a Category AB firearms licence – alleged violent behaviour - alleged provision of false and misleading information in licence application – public interest
APPEAL – costs order – denial of procedural fairness – failure to deal with objection to extension of time to make costs application - no opportunity to make submissions
Judgment of
K Ransome, Principal Member
J McAteer, Senior Member
PRACTICE AND PROCDURE---Summary dismissal of proceedings---Whether proceedings are frivolous, vexatious, misconceived or lacking in substance HUMAN RIGHTS---Discrimination---Disability---Education---Denying or limiting access to a benefit---Subjecting to a detriment
Administrative Law – land tax – whether primary production exemption applied – whether land was used for the maintenance of horses for the purpose of selling them, their natural increase or bodily produce
ADMINISTRATIVE LAW – Privacy and Personal Information Protection Act 1998 – administrative review of a reviewable decision – administrative review of conduct of the agency – disclosure of personal and health information – security safeguards
ADMINISTRATIVE LAW – privacy – whether Appeal Panel has jurisdiction to hear an appeal from an order that agency has contravened an Information Privacy Principle and a Health Privacy Principle – whether appeal is moot ADMINISTRATIVE LAW – privacy – meaning of “disclose” in section 18(1) of the Privacy and Personal Information Protection Act 1998 (NSW) – meaning of “disclose” in clause 11 to Schedule 1 of the Health Records and Information Privacy Act 2002 (NSW)
Judgment of
Hennessy ADCJ, Deputy President
J Lucy, Senior Member
HUMAN RIGHTS – discrimination – on the ground of a person’s disability - on the grounds of homosexuality – direct discrimination – indirect discrimination – goods and services - victimisation
Judgment of
L Andelman, Senior Member
Dr M Murray, General Member
TRADES AND PROFESSIONS – chiropractor - inappropriate sexual words and touching of patient - whether constitutes unsatisfactory professional conduct and professional misconduct
Judgment of
G Blake AM SC, Senior Member
Dr R Engel, Senior Member (Professional)
Dr D Kostur, Senior Member (Professional)
R Kusuma, General Member
LICENSING – firearms licensing – licence revocation – want of jurisdiction – licence expired – public interest – possible suicidal ideation – mental health history not disclosed.
HEALTH — professional registration and discipline — nurse — where practitioner engaged in unsatisfactory professional conduct and has an impairment — what protective action should be taken — conditions imposed on the respondent’s registration including critical compliance conditions
Judgment of
G Blake AM SC, Senior Member
M Cooke, Senior Member
E Gambrell-Ball, Senior Member
M Ficarra OAM, General Member
ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – insight - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk –– future risk – evidence of behaviour that caused harm to children
Judgment of
J McAteer, Senior Member (Legal)
Prof P J Foreman AM General Member (Community)
ADMINISTRATIVE LAW — administrative review — government information — allegations of improper conduct — personal information not sought — irrelevant information not sought — legal professional privilege — waiver of privilege — conclusive presumption against disclosure
LICENSING – firearms – domestic circumstances allegations of domestic violence by close family member – incorrect statement in application renewals – public interest – circumstances for imposition of a condition
ADMINISTRATIVE LAW – Health Practitioner National Law 2014 (NSW). Where medical practitioner concedes her conduct in treatment of patients and failure to keep proper records constitutes unsatisfactory professional conduct and professional misconduct. Where practitioner disputes some particulars in the complaint. Whether or not practitioner’s registration should be cancelled or suspended and or conditions imposed on her registration.
Judgment of
Boland J ADCJ (Deputy President)
Dr M Higgins (Professional Member)
Dr M Jarrett (Professional Member)
Ms M Kelly (Lay Member)
HEALTH — professional registration and discipline — pharmacist — where pharmacist is guilty of unsatisfactory professional conduct — what protective action should be taken
Judgment of
G Blake AM SC, Senior Member
M Cross, Senior Member
H Dowling, Senior Member
B Seth, General Member
OCCUPATIONS — medical practitioners — misconduct and discipline — conduct of a sexual nature — unprofessional conduct — professional misconduct — non-publication order — costs
Judgment of
The Hon G Watts ADCJ, Principal Member
Dr G Yeo, Senior Member
Dr S Cowap, Senior Member
Ms D Telford, General Member
ADMINISTRATIVE LAW – merits review – access to government information – decision of the public sector agency that the information for which the applicant sought access was not held by the agency – reasonableness of searches for the information sought
APPEALS - procedural fairness - questions of law concerning jurisdiction of the Tribunal – interpretation of Special Condition - decision of the Tribunal upheld.
Judgment of
Balla ADCJ, Principal Member
D A C Robertson, Senior Member
APPEALS- BUILDING AND CONSTRUCTION – renewal – work order not completed – other appropriate orders available on renewal – money order made in accordance with consent orders – no error on a question of law established.
Judgment of
S Thode, Principal Member
D Goldstein, Senior Member
APPEALS — whether the respondent’s application to set aside summonses required leave — nature of application to set aside summonses — adequacy of reasons-procedural fairness — claims of legal professional privilege and waiver-apparent relevance of documents sought by summonses — criteria for relevance-application for recusal — evidence permissible to engage s112 of the Government Information (Public Access) Act 2009(NSW) — adequacy of searches-grounds of appeal lacking sufficient specificity.
Judgment of
S Westgarth, Deputy President
G Ellis SC, Senior Member
LICENCING – firearms licencing – special conditions placed on licence not to use firearms on specific rural land due to its size, shape and location – whether such condition was unlawful or unreasonable
Judgment of
S Westgarth, Deputy President
Dr R Dubler SC, Senior Member
HUMAN RIGHTS – discrimination – on the ground of a person’s race – on the ground of a person’s gender - direct discrimination - provision of goods and services – police investigate alleged incidents of damage to vehicle and abusive behaviour – issue of infringement notice – alleged failure to respond to complaints and requests for assistance – conduct of an investigation - expert evidence as to ‘structural racism’ – making of inferences
Judgment of
L Andelman, Senior Member
J Herberte, General Member
ADMINISTRATIVE LAW – administrative review - government information – conclusive presumption against disclosure – client legal privilege – confidential information – personal information – effective exercise of agency’s functions – deliberative process – whether overriding public interest against disclosure.
HEALTH — non-publication order — application for reinstatement of a general practitioner after deregistration for professional misconduct — refused — impairment — costs
Judgment of
The Hon T Sheahan ADCJ, Principal Member
Dr E Summers, Senior Member
Dr D King, Senior Member
R Wellington, General Member
ADMINISTRATIVE LAW – child protection – out of home care – application for review of decision to remove children from care of authorised carer – reliability of comparative assessment report – cultural assessment – kinship placement – Aboriginal children in out of home care – restoration of children
HEALTH — professional registration and discipline — dental practitioner — possession of cocaine — use of cocaine — breach of conditions of registration — dilute drug urine samples — pattern of behaviour raises concern about compliance with drug testing policy — allegations of unsatisfactory professional conduct — allegations of professional misconduct
Judgment of
E Bishop SC, Senior Member
Dr J Ironside, Senior Member
Dr K Campbell, Senior Member
J Sillince, General Member
LAND LAW – Strata title – Order to remove strata committee member – eligibility of lot owner to be a member of the strata committee as well as building manager – scope of power of Tribunal to make orders under s 24 of the Strata Schemes Management Act 2015 (NSW) – general orders concerning SMS system to notify lot owners of building works and other matters
Judgment of
M Harrowell, Deputy President
S Thode, Principal Member
ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) -whether overriding public interest against disclosure – prejudice the effective exercise by an agency of the agency’s functions – endanger or prejudice any system or procedure for protecting the life, health or safety of a person – expose a person to a risk of harm or serious harassment or serious intimidation.
ADMINISTRATIVE LAW – administrative review – Government information – whether the Tribunal ought to recuse itself on the ground of apprehended bias – Whether information sought in the applicant’s request is held by the respondent.
ADMINISTRATIVE LAW — administrative review — government information — protected information — balancing the public interest considerations in favour of disclosure and against disclosure — protected information
ADMINISTRATIVE LAW – Privacy – application by the respondent for summary dismissal of the applicant’s administrative review application and interim order application – whether the applicant’s application for review identified a relevant administratively reviewable decision (conduct) of the respondent – whether the applicant’s formal request for amendment was an internal review request
ADMINISTRATIVE LAW – administrative review – Government information – confidential information - balancing the public interest considerations in favour of disclosure and against disclosure
ADMINISTRATIVE REVIEW – criminal and other history – mental health concerns – attitude towards police - whether in the public interest for the applicant to hold a firearms licence
Administrative Law – licensing - firearms licence – refusal of application – mental health – accuracy of information in licence application - public interest
CONSTITUTIONAL LAW (CTH) – jurisdiction of Tribunal where claims made in respect of international carriage by air – when the Tribunal is deprived of jurisdiction by the alleged operation of the Montreal Convention
Judgment of
A Suthers, Principal Member
D Goldstein, Senior Member
PRACTICE AND PROCEDURE – building claim – right of applicant to withdraw building claim under s 48I of the Home Building Act 1989 (NSW) – no discretion of the Tribunal to prevent withdrawal of proceedings under s 48I – no right of respondent to insist on final hearing of dispute in these circumstances.
Judgment of
M Harrowell, Deputy President
C Mulvey, Senior Member
HUMAN RIGHTS - discrimination - equal opportunity — victimisation – previous proceedings - leave required for complaint to proceed — whether complaint lacking in substance - principles applying to grant of leave
CONSUMER LAW — jurisdiction — NSW Civil and Administrative Tribunal Consumer and Commercial Division — claim against director of supplier company who was not involved in the supply of services-supplier company de- registered after supply of the services-business of supplier company carried on by associated company-allegation of “illegal phoenix activity” — Tribunal found it had no jurisdiction to determine claim-following the decision applicant asked the Tribunal to recuse itself a bias in respect of outstanding question of costs this. APPEALS — questions of law concerning jurisdiction of the Tribunal — decision of the Tribunal upheld — second decision about recusal for bias upheld where not attended by sufficient doubt.
Judgment of
P Durack SC, Senior Member
L Wilson, Senior Member
HUMAN RIGHTS – Discrimination – equal opportunity – provision of services - age discrimination - disability discrimination – direct or indirect – victimisation - leave required for complaint to proceed – principles applying to grant of leave
PRACTICE AND PROCEDURE – Appropriate orders where claim involves federal jurisdiction - summary dismissal of proceedings under s 55(1)(b) of the Civil and Administrative Act 2013 HUMAN RIGHTS – Transgender vilification –aiding and abetting CONSTITUTIONAL LAW (Cth) – Whether Tribunal has jurisdiction to hear and determine complaint – federal jurisdiction - where respondents raised constitutional claim of implied freedom of communication on political matters – whether s38S of the Anti-Discrimination Act 1977 imposes an unjustified burden on the implied freedom of political communication – whether the respondents’ claim was genuinely raised – whether the respondents’ claim was not capable on its face of legal argument.
LICENSING - firearms ––licence revocation –genuine reason - safety and storage – whether or not in the public interest for applicant to hold a licence.
Administrative Law - Individual contractor licence – General building work - Whether evidence establishes two years relevant experience - Whether evidence establishes a wide range of building construction work experience - whether experience relevant industry experience
ADMINISTRATIVE LAW — access to government information — whether, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure
LEASES AND TENANCIES – order of termination under s 103 of the Residential Tenancies Act 2010 (NSW) – whether order was correctly issued in circumstances where the tenancy had been abandoned and terminated prior to the order being made – whether break-fee should have been ordered.
Judgment of
Dr R Dubler SC, Senior Member
D Ziegler, Senior Member
COSTS---Proceedings at first instance settled prior to hearing by consent orders with issue of costs reserved---r 38 Civil and Administrative Tribunal Rules 2014---Whether costs order should be made in favour of a party---Applicable principles
Judgment of
G Sarginson, Senior Member
D Robertson, Senior Member
TAXES AND DUTIES – Land tax – Surcharge land tax – Foreign person – Liability TAXES AND DUTIES – Land tax – Surcharge land tax – Exemptions – Principal place of residence
ADMINISTRATIVE LAW - merits review - NSW Trustee and Guardian - management of estate of person with a disability - Trustee’s decision to sell former family residence - objection by some family members - proposal for “reverse-mortgage” arrangement - principle of preservation of estate - Trustee’s duty to act in protected person’s welfare and interests and related principles including views of the person: NSW Trustee and Guardian Act, section 39
APPEALS – internal appeal - significant new evidence not reasonably available -No grounds for leave established – appeal against order enforcing unwritten contract for residential building work to a value exceeding $30,000 allowed – s 7 and s 10 Home Building Act 1989 (NSW) – order on appeal – order for return of monies paid pursuant to order set aside on appeal. EVIDENCE – opinion evidence – consequences of non-compliance with NCAT Procedural Direction 3 – Expert Evidence – affects weight not admissibility - expert report containing bare assertions – given no weight.
Judgment of
G Sarginson, Senior Member
P Molony, Senior Member
Administrative Law - licensing - firearms - revocation of licence - mental health - living or domestic circumstances - fit and proper person - public interest
LANDLORD AND TENANT – Residential Tenancies Act 2010 (NSW) – reduction or withdrawal of goods, services or facilities – whether failure to repair defects existing at commencement of premises can constitute a relevant withdrawal or reduction – requirements against which reduction or withdrawal are to be judged
Judgment of
M Harrowell, Deputy President
C Mulvey, Senior Member
ADMINISTRATIVE LAW – Government Information - refusal to deal with an access application – unreasonable and substantial diversion of agency resources – agency already decided a previous application that substantially overlapped with the information sought
ADMINISTRATIVE LAW – Home Building Act - administrative review of decision to refuse application for owner builder permit – special circumstances - occupancy
ADMINISTRATIVE LAW – NDIS Worker Checks - child protection –risk of harm - whether risk real and appreciable– risk of harm likely or significant– weight of evidence of risk – current risk
LICENSING – combat sports – combatant certificate – refusal of registration – criminal history – applicant’s health and safety interests – certificate of fitness.
GUARDIANSHIP – application for a guardianship order – urgent application – subject person an in-patient at a public hospital – subject person experiencing a state of catatonia – need for decisions to be made in relation to a sexual assault assessment and the release of any sexual assault investigation kit – need for decisions to be made in relation to health care and consent to medical treatment – no private person available – Public Guardian appointed – order made
Judgment of
C P Fougere, Principal Member
Dr M J Wroth, Senior Member (Professional)
R Royer, General Member (Community)
DAMAGES – mesothelioma – general damages – different assessments in different States – common law of Australia DAMAGES – mesothelioma – assessment of need for care in the future – evidence of occupational therapists
ADMINISTRATVIE REVIEW – person under guardianship – decision of the Public Guardian that person be accommodated at an aged-care facility was affirmed - not reasonably arguably case of error APPEALS – application to extend time to lodge Notice of Appeal – application refused – insufficient prospects of success of appeal
Judgment of
A Balla, ADCJ, Principal Member
Dr R Dubler SC, Senior Member
TAXES AND DUTIES — Land tax — Surcharge land tax — holds land on trust — discretionary trust — foreign persons not excluded as beneficiaries under the terms of the trust deed — effect of a deed of rectification
ADMINISTRATIVE LAW – firearms licence – Special Condition – storage of firearms – whether family member poses real and appreciable risk – domestic violence
ADMINISTRATIVE REVIEW – contraventions of safe storage requirements – whether in the public interest for the applicant to hold a firearms licence – whether applicant a fit and proper person
ADMINISTRATIVE LAW- Merits review- Guardianship- Public Guardian- decision to refuse to appoint independent advocate for person under guardianship- principles in Guardianship Act 1987, section 4 (a) - welfare and interests of person to be given paramount consideration – decision under review the correct and preferable one- decision affirmed. EVIDENCE - relevance - inferences- Jones v Dunkel inference- availability in Tribunal proceedings- Civil and Administrative Tribunal Act 2013, section 38 (2).
APPEAL – related home building and strata scheme applications – no errors of law in principal decision work order decision and costs decision – no procedural unfairness in conduct of the hearing
ADMINISTRATIVE LAW – application by the respondent administrator for an order under s 59 of the Administrative Decisions Review Act 1997 (NSW) – order sought in respect of an unredacted copy of documents that contain confidential material in circumstances where, if an application were made, it would be appropriate to make an order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting or restricting the publication or disclosure of evidence of those documents ADMINISTRATIV LAW – application for non-publication and non-disclosure orders under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW)
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Notice of rent increase – Whether validly served prior to renewal of lease – Leave to appeal – Significant new evidence not reasonably available – No grounds for leave established
Judgment of
G Sarginson, Senior Member
P H Molony, Senior Member
APPEAL - whether appellant establishes error on question of law - whether appellant establishes grounds for leave to appeal - whether “new evidence” relied on by appellant was not reasonably available at time of original hearing
Judgment of
I R Coleman SC ADCJ, Principal Member
R C Titterton OAM, Senior Member
APPEALS — Appeal on question of law – Scope of question of law APPEALS — Leave to appeal — Principles governing – leave to appeal refused APPEALS — Procedural fairness — Whether the adjournment of a hearing or the delay of the commencement of a hearing of which notice had been given where a party is not present at the commencement of the hearing is required
Judgment of
G Blake AM SC, Senior Member
P Durack SC, Senior Member
ADMINISTRATIVE REVIEW - firearms – refusal of licence – AVO – history of aggression – safe storage – suspensions - attitude towards police - public safety – whether a fit and proper person – continuous and responsible control of firearms – whether of intemperate habits – whether of unsound mind – public interest.
APPEALS — right of appeal — who may exercise where Tribunal appoints manager to strata scheme with plenary powers — where lot owner not a party to proceedings at first instance seeks to appeal against decision of Tribunal pursuant to s 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) –proceedings incompetent due to an absence of standing
Judgment of
Armstrong J, President
A Suthers, Principal Member
ADMINISTRATIVE LAW – administrative review – Government information – failure of the applicant to appear at the hearing – matter determined in the absence of the applicant - whether overriding public interest against disclosure - confidential information - information provided in confidence
PRACTICE AND PROCDURE – application by respondent to dismiss application on the basis that under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) on the basis that the Tribunal does not have jurisdiction to hear and determine the applicant’s substantive application.
LEASES AND TENANCIES – application for reinstatement of matter following dismissal for non-appearance – application dismissed on the ground of failure to provide adequate reason for non-appearance and for application being filed out of time PRACTICE AND PROCEDURE – application for reinstatement under s 55(2) of the Civil and Administrative Tribunal Act 2013 (NSW) – Tribunal declined to extend time under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) APPEAL – whether the decision not to grant an extension of time under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) was in error – appeal dismissed as no error in refusing to grant extension of time was made out
Judgment of
D Charles, Senior Member
Dr R Dubler SC, Senior Member
OCCUPATIONS- pharmacists – misconduct and discipline – attempted importation of non-exempt therapeutic goods – dishonesty – unsatisfactory professional conduct and professional misconduct
Judgment of
H J Dixon SC, Senior Member
H Dowling, Senior Member
J Ludington, Senior Member
B Seth, General Member
DUST DISEASES – mesothelioma – prognosis – length of prognosis DAMAGES – assessment of damages – general damages – interest on general damages – loss of expectation of life – future care and assistance – past and future out of pocket expenses – future medical expenses TORTS – vicissitudes
ADMINISTRATIVE LAW – administrative review – licensing – variation of contractor licence- qualification requirements under s33F of the Home Building Act 1989
ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) -whether information is held by the agency – public interest considerations against disclosure – prejudice any person’s legitimate business, commercial, professional or financial interests
COSTS – Civil and Administrative Tribunal Rules rr 38 and 38A – Amount claimed or in dispute – Civil and Administrative Tribunal Act s 60 – Special circumstances
Judgment of
D Robertson, Senior Member
E Bishop SC, Senior Member
LAND LAW - community land - statutory obligation of neighbourhood association to maintain and keep in good repair common property under s 109 of the Community Land Management Act 2021 (NSW) (CLMA) - trotting track part of common property not kept in good repair - special resolutions by the association not to maintain and repair trotting track-application by lot owner for orders requiring that repairs be carried out - no challenge to special resolution in terms of s 109(3). APPEALS - various alleged errors raised on appeal-Tribunal examined reasons for the association’s determination not to maintain and repair trotting track and objective facts-whether any error by the Tribunal concerning this approach and dealing with these issues was irrelevant in circumstances where there was no challenge to the validity or operative effect of the special resolution.
Judgment of
P Durack SC, Senior Member
G Ellis SC, Senior Member
LICENSING – firearms – husband and wife – wife’s licence revoked – son with mental health issues – absence of current evidence - condition imposed on husband’s licence
REAL PROPERTY – STRATA MANAGEMENT – strict duty of repair – onus of proof on scope and consequences of breach – causation and mitigation – measure and quantification of loss – Strata Schemes Management Act 2015 (NSW) ss 106, 122, 124, 232
Judgment of
S Westgarth, Deputy President
G Burton SC, Senior Member
ADMINISTRATIVE LAW — Government Information (Public Access) Act 2009 — Grounds for refusing access — Balancing competing public interest factors for and against disclosure EVIDENCE — Privileges — Parliamentary privilege — Admissibility of transcript of a parliamentary committee – admissible only as proof of what was said CIVIL PROCEDURE — Implied undertakings — Documents to which applies — Documents produced under compulsion – whether documents lodged pursuant to Administrative Decisions Review Act 1997 (NSW), s 58 are documents produced under compulsion
POWERS OF ATTORNEY — reviewable powers of attorney — enduring powers of attorney — whether the Tribunal misapplied s 36(4) of the Powers of Attorney Act 2003 (NSW) APPEALS — findings of fact — whether finding that there was no evidence of “any misconduct mismanagement, maladministration or conflict of interests on the part of the attorneys” constitutes a factual error “unreasonably arrived at” APPEALS — whether to grant leave to appeal under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW)
Judgment of
A Britton, Deputy President
J T Kearney, Senior Member
Dr M Spencer, General Member
APPEAL – summonses to treating medical practitioners to produce documents – whether Tribunal erred in setting aside summonses - whether summonses have legitimate forensic purpose – whether a fishing expedition – mistake as to facts – incorrect application of law
Judgment of
K Ransome, Principal Member
D Goldstein, Senior Member
ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) – whether information publicly available to applicant - whether information is held by the agency
LEASES AND TENANCIES – twenty year residential tenancy agreement – leave to adduce fresh evidence refused – no appeal against critical findings of fact
LAND LAW---Strata title---Consent of owners corporation to the lodging of a development application to works affecting common property---s 232(6) Strata Schemes Management Act 2015---Mandatory considerations---Relevant considerations---Applicable principles
Judgment of
G Sarginson, Senior Member
K Ransome, Senior Member
ADMINISTRATIVE REVIEW – Health Records and Information Privacy Act 2002 (NSW) – inquiry into a complaint made to the Privacy Commissioner PRACTICE AND PROCEDURE – whether the Tribunal ought to recuse itself on the ground of apprehended bias – proper respondent – joinder of a respondent party – whether proceedings should be adjourned – whether leave should be refused for the respondent to be represented – whether a person should be compelled to appear as a witness
TAXES AND DUTIES- taxation administration -reassessment of tax liability of taxpayer - s 5D of the Land Tax Act 1956 (NSW) – reassessment made on a reconsideration of the terms of an amending deed to the trust. ADMINISTRATIVE LAW- Review of decision
TAXES AND DUTIES — stamp duty concession — whether s 55 applies — statutory construction —whether an agreement to transfer dutiable property is a transfer of dutiable property — whether s 55 applies only to resulting trusts —whether beneficiary of self managed superannuation fund is the real purchaser and the superannuation fund is the apparent purchaser — stamp duty exemption — whether s 65(10) applies
ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) – whether information sought is ‘excluded information’ – whether information is not held by the agency PRACTICE AND PROCEDURE – whether hearing should be adjourned – whether the Registrar should be directed to issue a Summons compelling a person to attend the hearing to give evidence – whether a non-publication order should be made.
TRADES AND PROFESSIONS – health practitioner – physiotherapist – whether practitioner engaged in unsatisfactory professional conduct – whether practitioner engaged in professional misconduct – appropriate protective orders
Judgment of
Dr J Lucy, Senior Member
S Mackie, Senior Member
Dr A Gupta, Senior Member
Dr R Leontini, General Member
OCCUPATIONS – psychology practitioners – misconduct and discipline – Finding of unsatisfactory professional conduct and professional misconduct – appropriate protective orders – registration suspended – practice conditions imposed
Judgment of
The Hon Le Poer Trench ADCJ, Principal Member
B Sheridan, Senior Member
Dr A White, Senior Member
M Maher, General Member
REVIEW OF DECISION BY EXTERNAL DECISION-MAKER — decision to cancel registration as a certifiers pursuant to section 48 of the Building Professionals Certifiers Act 2018 (NSW) PRACTICE AND PROCEDURE — INTERLOCUTORY ORDER – application for stay— factors relevant to exercise of the power to stay decision under section 60 of the Administrative Decisions Review Act 1997 (NSW)
ADMINISTRATIVE LAW – application of lay associate for approval under s 121 of the Legal Profession Uniform Law – relevant considerations where applicant pleaded guilty to serious offences – confidentiality application
Judgment of
S Westgarth, Deputy President
A Suthers, Principal Member
COSTS – appeal – errors of law in exercise of the Tribunal’s discretion under r 38 – setting aside of no order as to costs and substituting a costs’ order.
ADMINISTRATIVE LAW MERITS REVIEW - where NSW Trustee and Guardian decided to approve the sale of a property of a person who is the subject of a financial management order where the son, who lives in the property, disagreed with the decision to sell the property – paramount consideration is the welfare and interests of the person subject to the financial management order – correct and preferable decision
ADMINISTRATIVE LAW – Government Information (Public Access) Act 2009 – refusal to deal with an access application – unreasonable and substantial diversion of agency resources – agency already decided a previous application for the information
PRACTICE AND PROCEDURE – Transfer of proceedings from Consumer and Commercial Division of NCAT to a court – Sch 4 cl 6 of the Civil and Administrative Tribunal Act 2013 – effect of Sch 4 cl 5 (jurisdiction to determine issues) on power of transfer – relevant considerations in determining whether to transfer proceedings.
APPEALS – Failure to provide transcript or sound recording as ordered – Weight to be given to expert evidence - Communication with the Appeal Panel after the appeal was concluded – No question of principle
Judgment of
R C Titterton OAM, Senior Member
D Goldstein, Senior Member
APPEALS – leave to appeal - new evidence – leave to appeal under cl 12(1)(c) Sch 4 of the Civil and Administrative Tribunal Act 2013 refused – failure to consider relevant consideration - damages – inadequacy of reasons – no explanation of how damages assessed. PROCEDURE – ex parte hearing under rule 35 of the Civil and Administrative Tribunal Rules 2014 - failure to take into consideration undefended hearing evidence which could constitute a complete defence to claim – Tribunal’s obligation to satisfy itself that claim made out – failure to consider a relevant consideration.
Judgment of
S Thode, Principal Member
P H Molony, Senior Member
ADMINISTRATIVE REVIEW – Registration under the Design and Building Practitioners Act 2020 (NSW) – Cancellation of deemed registration – whether the Applicant is a suitable person
ADMINISTRATIVE REVIEW – Combat Sports Act 2013 – application for renewal of registration as a combatant in the amateur boxing registration class – ‘fit and proper person’ – criminal offences
ADMINISTRATIVE LAW – administrative review - government information – whether, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure – decision that no further information is held by the agency – reasonableness of searches for the information sought. EVIDENCE – Surveillance Devices Act 2007 – unauthorised recording – discretion to admit. PRACTICE AND PROCEDURE - discretion to extend time – relevant considerations.
ADMINISTRATIVE LAW – application for an extension of time within which to lodge an application for administrative review – extension of time granted TAXES AND DUTIES – review of a re-assessment of a first home duty exemption or concession
MERITS REVIEW – NSW State taxes - revenue law – surcharge land tax – exemptions - onus – lack of objective evidence - credibility of the applicant as his sole witness – no reasons given for not calling other witness.
ADMINISTRATIVE LAW – Government Information – access – sufficiency of search - personal information – whether overriding public interest against disclosure.
TAXES AND DUTIES- Surcharge purchaser duty- Chief Commissioner’s decision not further to remit or reduce penalty tax and not to remit interest which comprised market rate and premium components -no exceptional circumstances out of the control of taxpayer- reasonable care not taken by representative of taxpayer.
ADMINISTRATIVE REVIEW – Registered certifier – Whether disciplinary grounds established – Whether decisions to cancel applicant’s registration and disqualify him from registration for 10 years are the correct and preferable decisions
HUMAN RIGHTS – disability discrimination – whether the Secretary, NSW Ministry of Health is a qualifying ‘authority or body’ within the meaning of s 49J(1) of the Anti-Discrimination Act 1977 (NSW) in respect of private health facilities
Judgment of
Hennessy, ADCJ, Deputy President
Dr R Dubler SC, Senior Member
Health – Nursing – Unsatisfactory Professional Conduct – Professional Misconduct – where practitioner engaged in a sexual act with a patient under his care under a hospital high dependency unit – findings at Stage 1 to proceed to Stage 2 consideration
Judgment of
R Lethbridge SC, Senior Member
C Sippel, Senior Member
S Smiltnieks, Senior Member
J Barker, General Member
LICENSING – firearms licensing – revocation of licence – domestic arrangements – association with person under prohibition orders and with criminal history – licence condition.
APPEAL- appeal from orders requiring the appellant to remedy defective work-whether a question of law arises- whether there is a ground for leave to appeal to be granted-conflicting evidence of expert witnesses.
Judgment of
S Westgarth, Deputy President
G Ellis SC, Senior Member
APPEAL – Exclusive selling agency agreement – No sale – Liability for disbursements – Section 55A of the Property and Stock Agents Act 2002 (NSW) - No compensation for property owner – Failure to allow procedural fairness
Judgment of
L. Wilson, Senior Member
D. Goldstein, Senior Member
APPEAL – Civil and Administrative Tribunal (NSW) – appeal from Guardianship Division- asserted error on a question of law – failure to take into account mandatory consideration - views of person with a disability- Guardianship Act 1987 s14(2)(a)(i). No error on a question of law established – appeal dismissed. Leave to appeal not sought. PROCEDURE – Civil and Administrative Tribunal (NSW) Appeal Panel – appeal from Guardianship Division – obligation to assist legally unrepresented appellant in formulation of their case and grounds.
Judgment of
J Moir, Senior Member
L Organ, Senior Member
J Newman, General Member
PROFESSIONS AND TRADES – dentistry – where complaints of unsatisfactory professional conduct and professional misconduct admitted – appropriate protective order
Judgment of
R C Titterton OAM, Senior Member
Dr M Stimpson, Senior Member
Dr G Traynor, Senior Member
J Sillince, General Member
ADMINISTRATIVE LAW – administrative review – Victims rights and support – family victim - eligibility for victims support - act of violence that apparently occurred in the course of the commission of a homicide – behaviour (including past criminal activity), attitude or disposition of the primary victim directly and/or indirectly contributed to their death – reduction of amount of victims support approved
ADMINISTRATIVE LAW – administrative review – Victims rights and support – family victim - eligibility for victims support - act of violence that apparently occurred in the course of the commission of a homicide – behaviour (including past criminal activity), attitude or disposition of the primary victim directly and/or indirectly contributed to their death – reduction of amount of victims support approved
ADMINISTRATIVE LAW – administrative review – Victims rights and support – family victim - eligibility for victims support - act of violence that apparently occurred in the course of the commission of a homicide – behaviour (including past criminal activity), attitude or disposition of the primary victim directly and/or indirectly contributed to their death – reduction of amount of victims support approved
ADMINISTRATIVE LAW – hearing rule – right to cross-examine witnesses – failure to allow the Appellant to cross-examine witnesses – reliance on the evidence of those witnesses – breach of procedural fairness – practical injustice resulting from breach of obligation to provide procedural fairness
Judgment of
S Westgarth, Deputy President
Dr R Dubler SC, Senior Member
OCCUPATIONS – legal practitioners – solicitors – disciplinary proceedings – whether solicitor assisting as son-in-law and not as a solicitor – whether solicitor acting under power of attorney and not as a solicitor – whether conduct occurred “in the course of legal practice” – whether conduct occurred in “representing a client” OCCUPATIONS – legal practitioners – solicitors –where solicitor repeatedly emails representatives of the client of another solicitor – where conduct is consistent and repeated breach of r 33.1 of Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) – solicitor found guilty of professional misconduct OCCUPATIONS – legal practitioners – solicitors –where solicitor’s correspondence to another solicitor involves use of profanities, threats and unsubstantiated allegations – whether discourteous – where conduct is consistent and repeated breach of r 4.1.2 of Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) – solicitor found guilty of professional misconduct WORDS AND PHRASES – “in the course of legal practice” and “representing a client” – rr 4.1.2 and 33.1 of Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
Judgment of
Armstrong J, President
A Suthers, Principal Member
B Thomson, General Member
LAND LAW – Community title – Community Scheme Duties owed by proprietors – Compliance with by-laws - By-laws requiring consent to the erection of new structures – By-laws requiring landscaping and structures to comply with Design Guidelines – Respondent erected acoustic barrier on boundary of his lot without the consent of the Community Association – Whether barrier erected in breach of by-laws – Whether by-laws harsh, unconscionable or oppressive – Community Land Management Act 2021 s 128 contemplates that, in the interests of preserving the ambience and amenity of the community association, restrictions may be imposed by the by-laws of a community association upon the manner and extent to which lot owners in a community association may utilise their property.
RETAIL LEASE - Whether arrears of rent waived - whether breach of disclosure requirement proved - status of related agreement for electricity costs - assessment of make good claim - running account
LAND LAW – Strata title – civil penalty – contravention of Tribunal orders – s 247A Strata Schemes Management Act 2015 – multiple breaches of orders – amount of penalty – when maximum penalty might be imposed – whether penalty should be paid to applicant owners corporation
Judgment of
M Harrowell, Deputy President
K Rosser, Principal Member
CONTRACTS — Breach of contract — Consequences of breach — Right to damages CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill
LAND LAW – Strata title – Strata Schemes Management Act 2015 (NSW) – Interim relief – Production of documents – Owners Corporation is not required to disclose to a lot owner with which it is in dispute documents subject to legal professional privilege
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – whether an agreement is a residential tenancy agreement – whether an agreement for the sale of land that confers a right to occupy – landlord’s right to access residential premises – termination of tenancy – non-payment of rent – whether issue arising in the application was the subject of proceedings before the Supreme Court of NSW on the date the application was made.
LEASES AND TENANCIES – breach of agreement – termination by Tribunal – breach sufficient to justify termination in the circumstances of the case – abandonment - break fee – rental bond – failure to lodge bond – landlord’s obligation to maintain premises in a reasonable state of repair – compensation
Human Rights – discrimination – disability discrimination – indirect – condition or requirement – denying or limiting access to a benefit – subjecting to detriment – education
Judgment of
HJ Dixon SC, Senior Member
E Hayes, General Member
Costs – special circumstances established – claims unsupported by evidence – claims lacking merit – large volume of materials with no or marginal evidentiary value
LAND LAW – Strata title – Obligations of owners and occupiers – Keeping of pets – Nuisance – Whether barking of dog shown to constitute a nuisance or unreasonable interference with the enjoyment of another lot LAND LAW – Strata title – Owners corporation – Strata committee – Whether respondent should be removed from the strata committee
LAND LAW — Strata schemes — Appointment of compulsory strata manager — Whether grounds for compulsory appointment are established — Which of two proposed compulsory strata managers should be appointed