Recent decisions for Multiple courts

• Civil and Administrative Tribunal (Administrative and Equal Opportunity Division)
• Civil and Administrative Tribunal (Appeal Panel)

Catchwords:

Administrative Law – Application for certificate of registration as an assistant real estate agent - Fit and proper person.

Catchwords:

CONSUMER LAW – Enforcement and remedies – The requirement for the appellant to establish that he was a ‘consumer’ as defined in s79D of the Fair Trading Act 1987 for the Tribunal to have jurisdiction – The requirement for a ‘supplier’ as defined in section 79D of the Fair Trading Act 1987 to have supplied goods or services to the appellant for him to be a ‘consumer’ as defined in section 79D of the Fair Trading Act 1987 - Meaning of ‘direct supplier’ in section 79E(2) of the Fair Trading Act 1987

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — termination notice for non-payment of rent — relevance of rental bond to determining arrears APPEAL — obligation of party to lodge material relied on — consequences of failure by appellant to lodge transcript or recording of hearing below

Catchwords:

Costs – costs of appeal where appeal dismissed – special circumstances established – whether appropriate to make a lump sum order for costs – quantification of lump sum amount – costs awarded

Catchwords:

LANDLORD and TENANT- residential tenancy- no grounds termination of periodic tenancy – retaliation as a basis for refusal for making a termination order under s 115(1)(b) rather than as a separate claim. APPEALS — Error on a question of law — Procedural fairness — Retaliatory eviction — Issue raised by Tenant at hearing but Tribunal misunderstood that it did not need to be the subject of a separate claim – lost opportunity to have defence heard and determined— Whether denial of procedural fairness

Catchwords:

APPEAL – Home Building – Australian Consumer Law claims – claims about unconscionable conduct and unfair contract terms – whether Amended Grounds of Appeal raise questions of law – grounds not established – appeal seeks to raise new claims

Catchwords:

APPEALS – Procedure – Application for interim stay – Whether arguable grounds of appeal – Whether balance of convenience in favour of stay

Catchwords:

APPEALS – whether appeal raised a question of law – no question of principle – whether appeal raises an error warranting a grant of leave – no question of principle COSTS – special circumstances – exercise of discretion - no question of principle

Catchwords:

HUMAN RIGHTS — discrimination — equal opportunity — disability discrimination — leave required for complaint to proceed — whether complaint lacking in substance — principles applying to grant of leave. PRACTICE AND PROCEDURE — whether a non-publication order should be made.

Catchwords:

LEASES AND TENANCIES – whether notice of termination was retaliatory in part – whether the wrong test under s 115 of the Residential Tenancies Act 2010 (NSW) was applied – whether decision not fair and equitable – whether decision against the weight of evidence – absence of transcript of hearing

Catchwords:

LANDLORD and TENANT-residential tenancy-order under s 90 (1) (b) of the Residential Tenancies Act 2010 (NSW) (RTA) to terminate a social housing tenancy- allegation that the tenant intentionally or recklessly caused injury with a knife to an occupier on neighbouring property-Tribunal preferred landlord’s version of events as put forward in witness statements from the alleged victim, his brothers and girlfriend to competing evidence from tenant-whether the relevant event occurred on “neighbouring property” as required by s 90 (1) (b)-whether termination was mandatory or discretionary according to the application of s154D (2) and (3) of the RTA- exercise of the discretion under s154E of the RTA. APPEAL-whether errors of law-whether the Tribunal erred by not applying the Briginshaw principles- whether the Tribunal misconstrued relevant parts of s 154D- proceedings remitted to the Tribunal, differently constituted, for redetermination

Catchwords:

LAND LAW – strata title – meaning of s 226 of the Strata Schemes Management Act 2015 (NSW) APPEALS - whether decision of the Registrar of the Consumer and commercial Division of the Tribunal is an “internally reviewable” decision for the purposes of s 80 of Civil and Administrative Tribunal Act 2013 (NSW)

Catchwords:

CIVIL PROCEDURE – Suppression and non-publication – where Appellant seeks to have publication of decision restricted or her name anonymised – whether it is “desirable” to make orders

Catchwords:

APPEALS – questions of law – leave – whether there was a failure to engage with a defence – whether compensation excessive – whether miscalculation of rent reduction - appeal dismissed

Catchwords:

TAXATION AND REVENUE – duty on transfer of residence between married couple – transfer intended to meet exemption conditions in s 104B – error in transfer documents lodged – penalties and interest

Catchwords:

ADMINISTRATIVE LAW – Privacy and Personal Information Protection Act 1998 (NSW) – whether s 27 PPIP Act applies to exempt the respondent from complying with the IPPs - whether reasonable steps were taken under IPP 9 in relation to the use of personal information - whether sharing personal information critical of an employee with that employee was an unauthorised use under IPP 10 – if there were systemic issues to be addressed

Catchwords:

APPEAL - Residential Tenancies Act 2010 (NSW) – set aside - whether a real likelihood of injustice if the decision was allowed to stand

Catchwords:

ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal - merits review LICENCING - firearms - licence - genuine reason - fit and proper person - public interest

Catchwords:

ADMINISTRATIVE LAW – administrative review –Government information – parent seeking access to their child’s student file - reasonable searches – revealing personal information of other persons including children – disclosure of psychological testing material – disclosure of internal correspondence - responsible and effective government and affecting the functions of the agency - balancing competing public interest factors in favour of and against disclosure

Catchwords:

HUMAN RIGHTS — discrimination — equal opportunity — leave required for complaint to proceed — principles applying to grant of leave

Catchwords:

APPEAL – interlocutory decision – appointment of guardian ad litem – whether leave should be given to appeal from interlocutory decision

Catchwords:

ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal - objection - appeal – administrative review STATE REVENUE - land tax - exemption - land used for primary production - rural land - dominant use - cultivation - maintenance of animals - production of bottled water

Catchwords:

APPEALS — Leave to appeal — Principles governing APPEALS —Error on a question of law

Catchwords:

VICTIMS SUPPORT – Administrative law – act of violence – whether medical evidence verifies injury – sufficiency of evidence – whether applicant suffered serious bodily injury as a result of the act of violence – whether grievous bodily harm present as a result of psychological injury – meaning of grievous bodily harm – limits on beneficial interpretation

Catchwords:

Human Rights – disability discrimination – indirect discrimination – council services – Respondent to perform reasonable act to redress loss or damage suffered

Catchwords:

Human Rights – disability discrimination – indirect discrimination – council services

Catchwords:

ADMINISTRATIVE LAW — administrative review of refusal to issue firearms licence under Firearms Act 1996 (NSW) — whether applicant fit and proper person or refusal in public interest — relevance of applicant’s attitude towards police — impact of previous Tribunal findings COSTS — requirement for special circumstances warranting order for costs — whether current case hopeless rerun of earlier case

Catchwords:

APPEALS — Question of law — Procedural fairness — Failure to attend hearing — Appellant claiming that misled by staff of Tribunal Registry to believe that hearing adjourned — Denial of procedural fairness not established without evidence to support explanation for non-attendance LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Condition reports — Fair wear and tear

Catchwords:

LICENSING – firearms licensing – licence refusal – public interest – criminal and traffic history – incorrect information in applications.

Catchwords:

COSTS - Appeals – whether determination of costs application should be deferred pending determination of costs application in proceedings below COSTS – Appeals - s 60 Civil and Administrative Tribunal Act -Each party to proceedings to pay own costs – whether there are special circumstances warranting an award of costs in the appeal.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children check clearance – refusal of clearance – risk assessment – real and appreciable risk to the safety of children

Catchwords:

APPEAL – costs where Rule 38 applies- indemnity costs – failure by respondent to appear in the appeal

Catchwords:

APPEALS – NSW Civil and Administrative Tribunal – internal appeals – principles governing exercise of the discretion to grant leave to appeal from an internally appealable decision under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) EXPERT EVIDENCE – assumptions on which expert based their opinion FINANCIAL MANAGEMENT – precondition to exercise power to make financial management order s 25G Guardianship Act 1987 (NSW)– whether tribunal is satisfied that the person is not capable of managing their affairs FRESH EVIDENCE – test in Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202; [2015] NSWCA 30 – appellant’s proposed evidence could have been obtained with reasonable diligence in the original proceedings and is of no apparent relevance

Catchwords:

BUILDING AND CONSTRUCTION – meaning of the implied warranties under ss 18B(1)(e) and (f) of the Home Building Act 1989 (NSW) – whether expanded scope or application by reason of giving the Home Building Act 1989 (NSW) a purposeful or beneficial interpretation

Catchwords:

GUARDIANSHIP — whether the Tribunal misapplied ss 15(3), 17(1) of the Guardianship Act 1987 (NSW) — whether Tribunal satisfied proposed guardian “able to exercise the functions conferred or imposed by the proposed guardianship order” GUARDIANSHIP — whether the Tribunal misapplied s 4(d) of the Guardianship Act 1987 (NSW) — whether Tribunal obliged to give effect to views of the person the subject of a guardianship order LEAVE TO APPEAL — principles governing exercise of discretion to give leave to appeal from decision made by NCAT — whether conclusion that Tribunal was not satisfied that proposed guardian was “able to exercise the functions conferred or imposed by the proposed guardianship order” was against the weight of evidence EXTENSION OF TIME TO APPEAL — Civil and Administrative Tribunal Act 2013 (NSW), s 41 — principles governing exercise of discretion to extend time to appeal

Catchwords:

APPEALS — Leave to appeal — Principles governing APPEALS — leave to appeal because decision at first instance not fair and equitable or against the weight of evidence

Catchwords:

LEASES AND TENANCIES – decision not fair and equitable - validity of rent increase – withdrawal of consent for electronic service of notices – daily occupation fee

Catchwords:

APPEAL – orders for access by landlord to premises – denial of procedural fairness – transcript or sound recording not provided – no evidence of unfairness

Catchwords:

Costs – home building – where opposing appeals heard together – where both appeals allowed but only one party substantially successful on a practical analysis – consideration of whether costs should be determined on an issues basis – rejected – costs to follow the event.

Catchwords:

APPEAL- allocation of insurance premiums between owners corporations each owning part of the same building- consideration of ss160,161 and 162 of the Strata Schemes Management Act 2015- whether policies compliant with statutory requirements and consequences of noncompliance- relationship between statutory requirements and terms of a strata scheme management statement.

Catchwords:

COSTS – successful appeal against decision at first instance – whether special circumstances – whether unreasonable refusal to accept settlement offer – relevant factors

Catchwords:

ADMINISTRATIVE LAW - administrative review - assessment - objection - appeal - review by Civil and Administrative Tribunal - reassessment - estoppel STATE TAXES - duties - transfer duty - exemption - land use entitlement - dutiable transaction - dutiable property - double duty - transfer - dutiable value

Catchwords:

APPEAL - right of appeal - question of law - factual findings - leave to appeal - reasons DISCRIMINATION - review by Civil and Administrative Tribunal – evidence - proof

Catchwords:

BUILDING and CONSTRUCTION – HOME BUILDING – COSTS – Calderbank offers – reasonableness of rejection – APPEALS – challenge to discretionary decision – question of law – errors of law and of fact – re-exercise of discretion

Catchwords:

ADMINISTRATIVE LAW — Child protection — Risk assessment triggered by presence of records under cl 1(2)(a) of Schedule 1 of the Child Protection (Working with Children) Act 2012 —Tribunal to assess whether applicant poses a risk to the safety of children. Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes (Domestic and Personal Violence) Act 2007 Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999

Catchwords:

JUDGMENTS AND ORDERS —— Consent orders- appeal seeks to set aside consent orders made in primary proceedings – lack of proof of circumstances relied upon.

Catchwords:

Costs- costs of appeal-whether there were special circumstances.

Catchwords:

TAXATION AND REVENUE – surcharge land tax – amendment to trust deed to exclude distributions to foreign persons

Catchwords:

APPEALS — Procedure — Adjournment APPEALS — Procedure — Stay of proceedings APPEALS — Procedure — Time limits — Extension of time

Catchwords:

REVENUE LAW - State taxes - surcharge purchaser duty - exemption - residence requirement assessment - objection - appeal REVENUE LAW - interest - penalties - reasonable care -whether tax default due to matters beyond control of taxpayer - personal circumstances - remission ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal - application for administrative review out of time - leave to allow application

Catchwords:

REAL PROPERTY – STRATA MANAGEMENT – owners corporation’s strict duty to maintain and repair common property –alleged damage to lot property from alleged breach of duty – measure of damage to lot property when renovations occurred – whether relevant pipes were common property -Strata Schemes Management Act 2015 (NSW) s 106 - Strata Schemes Development Act 2015 (NSW) s 4

Catchwords:

ADMINISTRATIVE LAW – Application for review under s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) – Applicant a disqualified person – Whether the person poses a risk to the safety of children

Catchwords:

ADMINISTRATIVE LAW, Firearms Act 1996, “contrary to the public interest”; overriding need to ensure public safety; “reasonable cause to believe”; confidential information;

Catchwords:

Firearms Act - firearms licence – special conditions - contrary to the public interest – safe storage requirements

Catchwords:

TAXES AND DUTIES — Land tax — Surcharge land tax — Foreign person

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children check clearance – refusal of clearance following a risk assessment – dismissal of charges under section 14 of the Mental Health and Cognitive Forensic Provisions Act 2020 (NSW) - whether the applicant poses a real and appreciable risk to the safety of children

Catchwords:

APPEALS – whether appeal raised a question of law – no question of principle – whether appeal raises an error warranting a grant of leave – no question of principle – appeals of interlocutory decisions – no question of principle

Catchwords:

Costs - “special circumstances”

Catchwords:

LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – whether there was an agreement to grant for value a right of occupation of residential premises - meaning of agreement APPEAL – Question of law – whether reasons adequate

Catchwords:

APPEAL- appeal against a decision to refuse to join as respondent the director of a company that had entered into a home building contract- whether s137 of the Home Building Act imposes personal liability on the director.

Catchwords:

Building and Construction – where contract still on foot and construction incomplete – Damages for ongoing loss of interest and lenders charges due to delay – whether within the reasonable contemplation of the parties

Catchwords:

TAXES AND DUTIES — surcharge land tax – liability

Catchwords:

ADMINISTRATIVE LAW - administrative review - assessment - objection - appeal - review by Civil and Administrative Tribunal STATE TAXES - land tax - special trust - fixed trust - interpretation - capital - assets - present entitlement - absolute entitlement - rule in Saunders v Vautier - unit trust

Catchwords:

NCAT – internal appeals from decisions made by the Guardianship Division of the NSW Civil and Administrative Tribunal – principles governing grant of leave to appeal under s 80(2)(b) of Civil and Administrative Tribunal Act 2013 (NSW) NCAT – internal appeals – whether new evidence warrants exercise of the discretion to deal with the appeal by way of new hearing under s 80(3) of Civil and Administrative Tribunal Act 2013 (NSW)

Catchwords:

ANTI-DISCRIMINATION – racial vilification – racial discrimination – victimisation - discrimination in work

Catchwords:

ADMINISTRATIVE LAW - Working with Children Check Clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) - where disqualifying offence under former 61M of the Crimes Act 1900 (NSW) Aggravated indecent assault-victim under the age 16 years – assessment of risk posed by applicant - whether the applicant has proven he is not a risk to the safety of children - where onus of proof discharged by applicant - where enabling order granted

Catchwords:

BUILDING AND CONSTRUCTION – Contract – Repudiation by builder – Compensation for breach

Catchwords:

APPEALS – whether appeal raised a question of law – no question of principle – whether appeal raises an error warranting a grant of leave – no question of principle – appeals of interlocutory decisions – no question of principle

Catchwords:

APPEAL – Consumer claim – Where respondent reconditioned the appellant’s vehicle engine – Where appellant made a claim against the respondent for subsequent engine failure and damage to transmission – Whether Tribunal failed to afford procedural fairness to the appellant or their expert witness – Whether Tribunal’s decision was against the weight of the evidence as to the cause of the engine failure – No sound recording available from hearing due to technical issues - Role of expert witness representing appellant in the appeal

Catchwords:

JURISDICTION – decision under review relied on wrong section of Apprenticeship and Traineeship Act 2001 - ADMINISTRATIVE LAW – Apprenticeship – competing contracts – whether decision to terminate was reasonable –

Catchwords:

DISCRIMINATION – disability discrimination

Catchwords:

COSTS – Appeals - special circumstances – claims lacking in substance, misconceived, no tenable basis – costs awarded on ordinary basis

Catchwords:

LICENSING – firearms – father and son – ongoing dispute with other family members - fit and proper person – public interest

Catchwords:

VICTIMS Support – Administrative law – act of violence – whether evidence satisfies elements of act of violence– whether medical evidence verifies injury arising from act of violence – insufficient evidence to particularise causation and damage – whether casual link between assault and matters described in medical evidence – whether applicant has addressed s 44 issues – applicant on notice of case to meet – whether applicant afforded procedural fairness during review process.

Catchwords:

APPEALS – costs – settled proceedings, consent orders except as to costs

Catchwords:

COSTS

Catchwords:

CONSTITUTIONAL LAW — extra-territorial operation of State legislation CONSTITUTIONAL LAW — nature of Burns v Corbett (2017) 265 CLR 304 restriction — whether NCAT in determining applications under the Guardianship Act 1987 (NSW) is exercising judicial or administrative power — whether proceedings in the Guardianship Division of NCAT is a matter between parties STATUTORY CONSTRUCTION — recognition of guardians and financial managers appointed under a corresponding law s 49B Guardianship Act 1987 (NSW) — whether NCAT has power to determine application under Guardianship Act 1987 (NSW) in respect of person subject of a guardianship order made under corresponding law STATUTORY CONSTRUCTION — necessary territorial connection between NSW and person subject of an application made under Guardianship Act 1987 (NSW) PROCEDURAL FAIRNESS — bias — test of apprehended bias, double might test —knowledge to be attributed to hypothetical reasonable lay observer

Catchwords:

ADMINISTRATIVE LAW – administrative review – whether decision to impose conditions on a club licence is reviewable – no jurisdiction

Catchwords:

DISMISSAL – multiple adjournment requests refused – failure to appear at third day of hearing

Catchwords:

COSTS - Party/Party — Appeals – amount in dispute exceeds $30,000 - general rule that costs follow the event – whether costs should be apportioned - costs awarded in favour of successful party

Catchwords:

ADMINISTRATIVE LAW – merits review – Victims Rights and Support – restitution order against person convicted of relevant offence – whether the order for restitution under s 67(2A) of the Victims Rights and Support Act 2013 (NSW) was made within time

Catchwords:

CONSUMER LAW – consumer guarantees - supply of alleged defective awnings – consumer claim – extension of time to appeal

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children check clearance – refusal of clearance - risk assessment - real and appreciable risk to the safety of children

Catchwords:

Appeals – appeal against dismissal of application under cl 9(b) and the Civil and Administrative Tribunal Regulation – nature of decision

Catchwords:

ADMINISTRATIVE LAW – administrative review – Victims rights and support – act of violence – recognition payment – grievous bodily harm

Catchwords:

LEASES-residential tenancy dispute - claim for compensation for breach of the residential tenancy agreement by alleged wrongful eviction commenced outside the time prescribed for commencing such a claim - additional claim for compensation under s120 (b) of the Residential Tenancies Act 2010 (NSW). APPEALS - Tribunal erred by proceeding to determine the merits of the claim when it had no jurisdiction to do so.

Catchwords:

ADMINISTRATIVE LAW — application for summary dismissal — whether there is jurisdiction to review conduct under the Privacy and Personal Information Protection Act 1998 — access application finalised under the Government Information (Public Access) Act 2009 — interaction between Acts.

Catchwords:

ADMINISTRATIVE REVIEW – Firearms Act 1996 – refusal of a Category AB firearms licence – fit and proper person - public interest - domestic violence – coercive and controlling behaviour - mental health

Catchwords:

APPEAL – administrative review – matter involving dispute between residents of different states – whether denial of procedural fairness in dismissing application for lack of jurisdiction – whether Tribunal required to be satisfied that it otherwise had jurisdiction to determine that matter – consideration of Part 3A of the Civil and Administrative Tribunal Act 2013

Catchwords:

CONSUMER LAW – consumer guarantees for legal services – instructions on scope of guilty plea - exclusion of costs assessment matters under Fair Trading Act 1987 (NSW) s 79M

Catchwords:

ADMINISTRATIVE LAW - administrative review - assessment - objection - review by Civil and Administrative Tribunal STATE TAXES - land tax - exemption - low cost accommodation - boarding house - Treasurer’s guidelines - registration of boarding house - substantial compliance

Catchwords:

ADMINISTRATIVE LAW — Child protection — Risk assessment triggered by presence of records under cl 1(1)(a) of Schedule 1 of the Child Protection (Working with Children) Act 2012 (NSW) — Tribunal to assess whether applicant poses a risk to the safety of children.

Catchwords:

ADMINISTRATIVE REVIEW – Privacy and Personal Information Protection Act 1998 (NSW) – Information Privacy Principles

Catchwords:

COSTS – general rule that costs follow the event – proceedings dismissed – no exception to the general rule established

Catchwords:

APPEALS – appeals from an interlocutory decision to dismiss proceedings for the party’s failure to attend – hearing listed for in-person hearing – legal representative appeared by AVL to seek an adjournment – relevant principles for appeals under s 80(2)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)

Catchwords:

REAL PROPERTY – dividing fences – sufficient dividing fence – placement of fence on or near boundary - survey of boundary – extension of time – alleged negligent or intentional damage – alleged vexatious litigant – alleged res judicata – scope of previous proceedings

Catchwords:

ADMINISTRATIVE LAW – administrative review – access to government information – freedom of information – unreasonable and substantial diversion of resources APPEALS - Procedural fairness — apprehension of bias – principles - bias not established

Catchwords:

APPEALS – NCAT – appeal on a question of law – 40 purported questions of law – appellant required to particularise questions of law PROCEDURAL FAIRNESS – whether Tribunal failed to engage with a “substantial, clearly articulated argument relying upon established facts” EVIDENCE – whether Tribunal made findings without evidence – whether findings lacked “an evident and intelligible justification” ADMINISTRATIVE LAW – reasons for decision – whether Tribunal failed to give adequate reasons for its decision to make an initial guardianship order for term of 3 years PROCEDURAL FAIRNESS – bias – apprehended bias – knowledge to be attributed to the hypothetical lay observer APPEALS – interlocutory decisions – principles governing leave to appeal

Catchwords:

APPEALS — adjournment – application for adjournment by the appellant - principles – application dismissed APPEALS — bias — application for recusal — principles – application dismissed APPEALS — time specified by the Appeal Panel for the appellant to obtain the consent of the Supreme Court to continue the appeal against the first respondent which is in liquidation – application for an extension of time by the Appellant – application dismissed

Catchwords:

APPEALS – whether utility where no practical consequences for the parties – principles – appeal dismissed

Catchwords:

TAXES AND DUTIES — penalties and interest imposed on a surcharge purchaser duty assessment — amendments made to Applicant’s declaration without her knowledge

Catchwords:

ADMINISTRATIVE LAW – administrative review - privacy – information protection principles - unauthorised disclosure of personal information- damages

Catchwords:

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – alteration of premises by tenant – without consent of landlord – compensation payable to landlord – no error of law established – no grounds to grant leave to appeal established

Catchwords:

APPEALS — Procedure — Parties on appeal — Joinder - principles as to joinder of parties –application for joinder dismissed

Catchwords:

APPEALS - Error on question of law - denial of procedural fairness - leave to appeal -decision not fair and equitable - decision against weight of evidence - significant new evidence not reasonably available at the hearing - withdrawal of admission. BUILDING AND CONSTRUCTION - interpretation of residential building work re flooring under s 2(3)(k) of Schedule 1 to the Home Building Act 1989 (NSW) - work order or money order having regard to s 48MA of the Home Building Act 1989 (NSW) - acceptance of expert evidence

Catchwords:

ADMINISTRATIVE LAW - administrative review -access to government information - correct and preferable decision - whether the public interest consideration against disclosure, on balance outweighs the public interest consideration in favour of disclosure - whether there is an overriding public interest against disclosure of information - reasonable expectation of contravention of a provision of any other Act or statutory rule - prejudice to effective exercise of an agency’s functions - individual’s personal information - secrecy

Catchwords:

ADMINISTRATIVE LAW – administrative review – Victims rights and support – act of violence -recognition payment -grievous bodily harm

Catchwords:

APPEAL - right of appeal - question of law - leave to appeal PRIVACY - aggrieved person - internal review - review by Civil and Administrative Tribunal

Catchwords:

ADMINISTRATIVE LAW — application under Child Protection (Working with Children) Act 2012 —disqualified person – application for enabling order — alleged domestic abuse — whether a real and appreciable risk to the safety of children — presumption of risk — whether presumption displaced PROCEDURE — rejection of the tender of audio recordings — rejection of documents recording helpline reports

Catchwords:

ADMINISTRATIVE LAW – administrative review – Victims rights and support – act of violence- burden of proof -eligibility for victims support

Catchwords:

Costs – where claim for $484,347 made under the Home Building Act 1989 dismissed as out of time – ancillary decision - where appeal dismissed - costs on appeal under r 38A of the Civil and Administrative Tribunal Act follow the event.

Catchwords:

Disability and homosexuality discrimination – leave to proceed

Catchwords:

APPEAL – STRATA TITLE- By-law imposing an absolute prohibition- whether harsh, unconscionable or oppressive

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) s 51(3)(b) — Compensation for failure to leave premises as nearly as possible in the same condition, fair wear and tear excepted LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) s 63 — Compensation for loss of amenity, loss of enjoyment, distress, disappointment and inconvenience arising from failure of landlord to keep premises in good repair

Catchwords:

APPEALS – NCAT internal appeals - leave to appeal

Catchwords:

APPEAL – LEASES AND TENANCIES – whether substantial miscarriage of justice – error of law – reduction or withdrawal of goods, services or facilities – rent reduction – landlord’s obligation to repair and maintain – compensation

Catchwords:

ADMINISTRATIVE LAW - privacy - health information - health information privacy principles - HPP 7 - excessive delay - HPP 5 - accuracy - HPP 9 - security - HPP 10 - use - HPP 11 - disclosure ADMINISTRATIVE LAW - reviewable decision - conduct - correct and preferable decision - Civil and Administrative Tribunal

Catchwords:

ADMINISTRATIVE LAW – administrative review – Victims rights and support – eligibility for victims support

Catchwords:

PRACTICE AND PROCEDURE – correction of obvious errors in the text of a decision pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 – inconsistency between the stated decision and the stated reasons – decision amended.

Catchwords:

None

Catchwords:

LEASES AND TENANCIES — termination of periodic residential tenancy agreement under former s 85 of Residential Tenancies Act 2010 (NSW) —when termination notices are retaliatory under s 115 APPEALS — utility of internal appeal — whether appeal lacks utility if Appeal Panel cannot provide alternative to remedy abandoned by appellant

Catchwords:

CONSUMER LAW — Jurisdiction — NSW Civil and Administrative Tribunal Consumer and Commercial Division — Supply of Services - Jurisdiction and powers CONTRACT– contract provided for payment to be postponed until given event - contract terminated when partly performed but before payment due - whether payment for performance accrued and recoverable

Catchwords:

APPEALS - guardianship -leave to appeal - fresh evidence

Catchwords:

APPEALS — procedure – time limits – application to extend time to lodge an appeal – exercise of discretion – reason for delay – prospects of success on appeal – extension of time refused

Catchwords:

HUMAN RIGHTS – Discrimination – disability discrimination – discrimination on the ground of carer’s responsibilities – discrimination in employment – detriment – causation - reliance on Guidelines

Catchwords:

ADMINISTRATIVE LAW - government information - personal information - disclosure - public interest considerations for disclosure - public interest considerations against disclosure - balance ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal

Catchwords:

PRACTICE AND PROCEDURE – representation – section 45 of the Civil and Administrative Tribunal Act 2013 – legal representation – Leave to appeal an interlocutory decision

Catchwords:

COSTS – Civil and Administrative Tribunal Act 2013 (NSW) s 60(3)(c) and (e) - special circumstances – relative strengths of claims made by the parties – appeal lacking in substance

Catchwords:

APPEAL – Administrative Law – Government information – cabinet information – construction of cl 2, Sch 1 to the Government Information (Public Access) Act 2009 (NSW) – principles of statutory interpretation

Catchwords:

PRIVACY –– health information - personal information – vaccination status – medical information - whether about suitability for employment and excluded – use for purposes for which information collected

Catchwords:

ADMINISTRATIVE LAW — Freedom of information — Access to information — public interest considerations in favour of disclosure — public interest considerations against disclosure — onus on respondent — failure by respondent to identify specific information — whether on balance the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure

Catchwords:

REVENUE LAW - State taxes - land tax - assessment - objection - appeal REVENUE LAW - interest - premium rate - remission - discretion - reasonable care - exceptional circumstances - knowledge of taxpayer - delay in assessment ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal - appeal - remission for reconsideration

Catchwords:

ADMINISTRATIVE LAW – person under financial management order – decision to decline offer to purchase protected person’s property – paramount consideration of the protected person’s welfare and interests

Catchwords:

Administrative Law – practice and procedure – extension of time in which to bring an application for review

Catchwords:

TAXATION AND REVENUE – land tax – exemption for land used for primary production – maintenance of greyhounds for the purpose of their sale or sale of their natural increase – onus of proof not satisfied

Catchwords:

ADMINISTRATIVE LAW – costs – stay application withdrawn – whether application lacked utility –conduct of applicant

Catchwords:

COSTS – costs of appeal from decision of Consumer and Commercial Decision – appeal dismissed – respondent’s application for costs of appeal –special circumstances not required – where respondent was successful in respect of six out of seven grounds of appeal - whether appropriate to make a lump sum order for costs sought – quantification of the lump sum amount.

Catchwords:

TAXES AND DUTIES – surcharge land tax – discretionary trust not amended to exclude foreign beneficiaries before 31 December 2020 – extension of time to object to notices of assessment

Catchwords:

COSTS – no question of principle

Catchwords:

Administrative Law – firearms – firearms prohibition order – whether person ‘not fit, in the public interest’ – association with others who have serious criminal histories and involvement in organised crime

Catchwords:

APPEALS — bias — application for recusal — principles – application dismissed

Catchwords:

COSTS – s 60 Civil and Administrative Tribunal Act 2013 (NSW) – rr 38 and 38A Civil and Administrative Tribunal Rules 2014 (NSW) – appeal from proceedings at first instance involving Australian Consumer Law claims – unsuccessful stay application – appeal successful – claim for lump-sum fixed costs.

Catchwords:

APPEALS – Procedure – Legal Representation – leave refused.

Catchwords:

ADMINISTRATIVE LAW — Application for enabling order under s 28 of the Child Protection (Working with Children) Act 2012

Catchwords:

APPEAL – administrative review – home building – refusal of licence – misconstruction of Instrument - constructive failure to exercise jurisdiction – inadequate reasons – procedural fairness

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable–– circumstances of allegations –weight of evidence of risk – current risk – evidence of behaviour that could harm children

Catchwords:

LAND SERVICES - Possession of unattended animals - direct control or supervision - authorised person - authority ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal

Catchwords:

ADMINISTRATIVE LAW – Application for review under s 28 of the Child Protection (Working with Children) Act 2012 (NSW) – Applicant a disqualified person – whether the person poses a risk to the safety of children

Catchwords:

APPEAL - Residential Tenancies Act 2010 (NSW) - duress - unconscionable conduct – new evidence - extension of time - enforcement of settlement

Catchwords:

ADMINISTRATIVE LAW-working with children- review of decision to refuse to grant working with children check clearance - risk assessment - real and appreciable risk to the safety of children – public interest

Catchwords:

APPEAL – whether appellant demonstrated error on a question of law – whether leave to appeal should be granted.

Catchwords:

APPEAL – Australian Consumer Law – guarantees in relation to services - duty of care and skill – obligations under contract in relation to unsafe weather – post-hearing evidence – material issues raised – denial of procedural fairness PROCEDURE – summary dismissal and issue of summonses – applications refused

Catchwords:

BUILDING AND CONSTRUCTION-construction of clause concerning the fall to waste in bathrooms in the now superseded AS 3740-2010. APPEALS-point of law about construction of clause in an Australian Standard-construction contended for by the Builder rejected-relevance to construction of an article in the ABCB Connect newsletter- appeal dismissed

Catchwords:

Human rights – disability discrimination – sex discrimination – no refusal to provide goods

Catchwords:

ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal —whether Tribunal has administrative review jurisdiction over certain social housing decisions APPEALS — jurisdiction of Appeal Panel of NSW Civil and Administrative Tribunal — whether Appeal Panel has internal review jurisdiction over decisions of registrars concerning the issue of summonses — whether Appeal Panel can grant stays of decisions over which it does not have internal appeal jurisdiction

Catchwords:

HUMAN RIGHTS — discrimination — equal opportunity — leave required for complaint to proceed — principles applying to grant of leave – direct disability discrimination – indirect disability discrimination – applicants for employment

Catchwords:

APPEALS — bias — application for recusal — principles – application dismissed

Catchwords:

ADMINISTRATIVE LAW – administrative review - Government Information – information not held – reasonableness of searches – personal information – information about operations of agency – public interest considerations for disclosure of information – public interest considerations against disclosure of information – balance CONSTITUTIONAL LAW – judicial power – administrative power – dispute between State and resident of another state – jurisdiction – whether Tribunal has power to determine whether it has jurisdiction

Catchwords:

TAXES AND DUTIES – Land tax – Principal place of residence (PPR) exemption – owner’s PPR one of two freestanding houses on the land – larger house leased to tenants - whether the concession in cl 4 of Sch 1A of the Land Tax Management Act 1956 (NSW) (LTMA) applied to exempt the whole of the land from land tax – whether the concession in cl 10B of Sch 1A of the LTMA applied where no application made under s 9C of the LTMA

Catchwords:

LICENSING – firearms licensing – licence refusal – applicant’s domestic arrangements – public interest.

Catchwords:

ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal - merits review LICENCING - firearms - licence - genuine reason - fit and proper person - knowingly misleading - public interest

Catchwords:

HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) --- where applicant has required the President of the Anti-Discrimination Board to refer a declined complaints to the Tribunal – whether Tribunal should exercise discretion to grant leave for the complaint to be the subject of proceedings under s 96(1) of the Anti-Discrimination Act

Catchwords:

HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) --- where applicant has required the President of the Anti-Discrimination Board to refer a declined complaints to the Tribunal – whether Tribunal should exercise discretion to grant leave for the complaint to be the subject of proceedings under s 96(1) of the Anti-Discrimination Act

Catchwords:

Environment and planning – fences and boundaries – “dividing fence” – definition of fence – fence attached to retaining wall or wooden structure after construction

Catchwords:

Appeal – whether Appellant is a disqualified person under the Firearms Act 1996 (NSW) – consideration of whether an offence against the Crimes Act 1900 (NSW), s 316 is one involving dishonesty.

Catchwords:

COSTS — special circumstances — exercise of discretion to award costs

Catchwords:

Costs – self-represented parties, claims for disbursements – even if special circumstances based on Respondent’s conduct exists, unrelated to disbursements claimed

Catchwords:

APPEAL – LEASES AND TENANCIES-Residential Tenancies Act 2010 (NSW)- No written agreement-Identity of tenant disputed- Whether question of law arises

Catchwords:

APPEAL – whether reasons were inconsistent with orders-whether decision was not fair and equitable or against the weight of evidence- no basis to grant leave.

Catchwords:

LAND LAW – Strata title – whether strata scheme functioning satisfactorily – whether the owners corporation had failed to perform one of its duties – whether to appoint compulsory strata managing agent

Catchwords:

APPEALS — questions of law — Government Information (Public Access) Act 2009 (NSW) — misconstruction of Act — failure to apply correct legal principles — application of wrong legal principles — adequacy of reasons — extent of duty of NCAT to assist self-represented party — no breach of procedural fairness requirements — admission of further evidence — appeal allowed ADMINISTRATIVE LAW – whether government information held by agency — sufficiency of search — excluded information in respect of which there is a conclusive presumption against disclosure — client legal privilege — legal professional privilege — identification of client and privilege holder — consideration of waiver of privilege — Government Information (Public Access) Act 2009 (NSW) Sch 1, cl 5(2) mandatory requirement

Catchwords:

ADMINISTRATIVE LAW — Freedom of information — Access to information —whether application under Government Information (Public Access) Act 2009 is invalid because it is a request for excluded information of the agency - whether access application made to respondent or Workers Compensation Nominal Insurer

Catchwords:

ADMINISTRATIVE LAW — Freedom of information — Access to information — where respondent refused to deal with application — whether there are “no reasonable grounds for believing that the agency would make a different decision” — meaning of “excluded information”

Catchwords:

TAXES AND DUTIES – Surcharge purchaser duty – Tax default – Interest and penalty tax – remission

Catchwords:

Administrative Law –government information – access to information concerning the Applicant that is held by the Respondent – conclusive presumption of overriding public interest against disclosure – legal professional privilege

Catchwords:

ADMINISTRATIVE LAW – Privacy and Personal Information Protection Act 1998 (NSW) – whether there was a collection of personal information and a breach of IPP 3 – whether there was a breach of IPP 5 by failing to delete personal information – whether reasonable security safeguards were taken under IPP 5 – whether there was an unauthorised use or disclosure under IPPs 10 or 11 – systemic issues

Catchwords:

ADMINISTRATIVE LAW - administrative review - government information - access application - enforceable right to access government information - presumption in favour of the disclosure of government information - overriding public interest against disclosure - public interest considerations against disclosure - public interest considerations in favour of disclosure - balance - prejudice supply to an agency of confidential information - prejudice the effective exercise of an agency’s functions - disclosure of information provided to an agency in confidence - personal information - false or unsubstantiated allegations about a person that are defamatory ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal

Catchwords:

ADMINISTRATIVE REVIEW - firearms licence - revocation of licence - applicant’s way of living or domestic circumstances – association with persons with criminal histories – mental health concerns - genuine reason for possession of firearms - public interest – real and appreciable risk

Catchwords:

APPEALS — bias — application for recusal — principles – application dismissed

Catchwords:

APPEAL – Administrative Review – Firearms – Revocation of licence – Expired conditional release order (CRO) – Utility – Appeal ground moot – No appeal ‘on’ a question of law – Leave to appeal refused APPEAL – Administrative Review – Firearms – Revocation of licence – Public interest ground – Cannabis use – Medical prescription – Whether virtually no risk to public safety – Whether Tribunal reached unreasonable conclusion

Catchwords:

APPEAL – LEASES AND TENANCIES – refusal of adjournment – whether substantial miscarriage of justice – whether utility in allowing appeal

Catchwords:

ADMINISTRATIVE LAW - working with children - review of decision to cancel working with children clearance check – risk assessment - decision set aside

Catchwords:

APPEALS – administrative review of an administratively reviewable decision – whether the Tribunal misdirected itself as to its authority to review the internal review decision of the respondent to revoke the appellant’s firearms licence – the proper construction and application of section 53(5) and (5A) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) – whether on internal review under section 53 of the ADR Act it was open to the internal reviewer to substitute a decision to impose a condition on the appellant’s licence (section 19(1) of the Firearms Act 1996) with a decision to revoke the appellant’s firearms licence (section 24 of the Firearms Act 1996), or was it a new decision for which the appellant had a right to seek internal but not duly applied for such a review (Administrative Decisions Review Act 1997 section 55(3)). APPEALS – a question of law – self-represented appellant – Tribunal identified the wrong issue and asked the wrong question – conflation of the fit and proper person test and the public interest test (Firearms Act 1997 (NSW) sections 11(3)(a), 11(7), 24(2)(c) and (d) and Firearms Regulation 2017 (NSW) clause 20).

Catchwords:

ADMINISTRATIVE LAW – administrative review – assessment - objection – review by Civil and Administrative Tribunal STATE TAXES - surcharge land tax – whether applicant a “foreign person” – whether applicant “ordinarily resident” in Australia – whether applicant was actually in Australia during 200 or more days in the calendar year – exceptional circumstances – brief absence – discretion

Catchwords:

APPEAL – Home Building dispute – practical completion – construction of cl 20 of the Master Builders Association NSW Costs Plus (Residential) contract -– placement of furniture in building site – whether deemed occupation – rectification of roof defects – evidence overlooked – leave to amend grounds of appeal

Catchwords:

APPEALS – whether the reasons of the Tribunal at first instance were inadequate – whether the Tribunal erred in its application of s 18E of the Home Building Act 1989 (NSW) – whether the Tribunal erred in its construction and application of the Building Code of Australia and Australian Standard 3740 – whether the Tribunal denied the appellant procedural fairness – whether the Tribunal “failed in its application” of s 48MA of the Home Building Act 1989 (NSW).

Catchwords:

LAND LAW — strata title — powers of owners corporation — approvals under by-laws for parking on common property — whether parking prohibitions and restrictions based on blanket vehicle classifications instead of size are permissible APPEALS — appeal as of right for failure to respond to substantial, clearly articulated arguments — leave to appeal because decision not fair and equitable or against weight of evidence — whether special circumstances warrant award of costs in the appeal

Catchwords:

ADMINISTRATIVE LAW – administrative review – Victims’ rights and support – recognition payment

Catchwords:

ANTI-DISCRIMINATION – disability discrimination – indirect and direct discrimination – provision of goods and services

Catchwords:

COSTS – General rule that self-represented litigant cannot recover costs of their own time – abrogation of Chorley exception in Bell Lawyers v Pentelow applies to preclude recovery of costs comprising time of preparation and attendance by a self-represented litigant who is also a lawyer – no special circumstances to warrant an award of costs

Catchwords:

ADMINISTRATIVE LAW – administrative review – firearms licence – public interest – mental health – failure of medical evidence to provide risk assessment of suicidal ideation – whether Tribunal can be satisfied no real and appreciable risk to public safety

Catchwords:

ADMINISTRATIVE LAW – administrative review – Victims’ rights and support – sexual assault and domestic violence - series of related acts - recognition payment

Catchwords:

HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) --- where applicant has required the President of the Anti-Discrimination Board to refer a declined complaints to the Tribunal – whether Tribunal should exercise discretion to grant leave for the complaint to be the subject of proceedings under s 96(1) of the Anti-Discrimination Act

Catchwords:

DISCRIMINATION – disability discrimination – employment, whether actions taken by management constituted disability discrimination

Catchwords:

TAXATION AND REVENUE – concession in s 55 of the Duties Act 1997 (NSW) – onus of proof not satisfied

Catchwords:

PRIVACY –– disclosure of health information – exclusion for research under HPP 11(1)(f) of the Health Records and Information Privacy Act 2002 (NSW) – application of the Statutory Guidelines on Research – consideration of HPP 5, HPP 10, HPP 14 – orders and award of damages for breach of HPP 5(1)(c)

Catchwords:

ADMINISTRATIVE REVIEW; Firearms Act 1993 (NSW); fit and proper person; contrary to the public interest

Catchwords:

ADMINISTRATIVE LAW — application under Child Protection (Working with Children) Act 2012 — cancellation of clearance – alleged conduct of domestic abuse — evidence charges dismissed — whether a real and appreciable risk to the safety of children — reasonable person and public interest tests

Catchwords:

ADMINISTRATIVE LAW – Privacy and Personal Information Protection Act 1998 (NSW) – reviewable decision - Public sector agency – jurisdiction