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
Judgment of
P H Molony, Senior Member
N Kennedy, Senior Member
HUMAN RIGHTS – Discrimination – disability discrimination – discrimination on the ground of carer’s responsibilities – discrimination in employment – detriment – causation - reliance on Guidelines
Judgment of
Emeritus Prof R Graycar, Senior Member
J Herberte, General Member
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
PRACTICE AND PROCEDURE – representation – section 45 of the Civil and Administrative Tribunal Act 2013 – legal representation – Leave to appeal an interlocutory decision
Judgment of
A Bell, SC Senior Member
D Goldstein, Senior Member
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
Judgment of
D Robertson, Principal Member
R C Titterton OAM, Senior Member
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
Judgment of
Seiden SC DCJ, Deputy President
EA MacIntyre, Senior Member
PRIVACY –– health information - personal information – vaccination status – medical information - whether about suitability for employment and excluded – use for purposes for which information collected
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
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
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
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.
Judgment of
P Durack SC, Senior Member
R Perrignon, Senior Member
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
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
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.
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
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
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
Judgment of
A Starke, Senior Member
Emeritus Prof P Foreman AM, General Member
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
Judgment of
Emeritus Prof R Graycar, Senior Member
R Royer, Member
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
Judgment of
J Redfern PSM, Senior Member
G Burton SC, Senior Member
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
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
Judgment of
D Robertson, Principal Member
J Ledda, Senior Member
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
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
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
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
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
Environment and planning – fences and boundaries – “dividing fence” – definition of fence – fence attached to retaining wall or wooden structure after construction
Judgment of
K Ransome, Principal Member
H J Dixon SC, Senior Member
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.
Judgment of
S Westgarth, Deputy President
J Gatland, Senior Member
Costs – self-represented parties, claims for disbursements – even if special circumstances based on Respondent’s conduct exists, unrelated to disbursements claimed
Judgment of
S Westgarth, Deputy President
H J Dixon SC, Senior Member
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.
Judgment of
S Westgarth, Deputy President,
R Alkadamani, Senior Member
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
Judgment of
G Blake AM SC, Principal Member
R Titterton OAM, Senior Member
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
Judgment of
Armstrong J, President
K Robinson, Principal Member
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
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”
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
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
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
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
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
Judgment of
Seiden SC DCJ, Deputy President
P H Molony, Senior Member
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).
Judgment of
S Higgins, Senior Member
R Perrignon, Senior Member
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
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
Judgment of
P H Molony, Senior Member
J Redfern PSM, Senior Member
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).
Judgment of
R C Titterton OAM, Senior Member
D Goldstein, Senior Member
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
Judgment of
H J Dixon SC, Senior Member
J Ledda, Senior Member
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
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
ADMINISTRATIVE LAW – administrative review – Victims’ rights and support – sexual assault and domestic violence - series of related acts - recognition payment
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
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)
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
Judgment of
J Redfern PSM, Senior Member
Emeritus Prof P Foreman AM, General Member
ADMINISTRATIVE REVIEW - Firearms Act 1996 – refusal of a Category ABH firearms licence – fit and proper person - continuous and responsible control – way of living or domestic circumstances – public interest – conduct of Applicant and his son – treatment of confidential evidence COSTS – special circumstances – late filing of material by the Applicant – costs order made
ADMINISTRATIVE LAW - administrative review - Government Information - information not held - reasonableness of searches - remission of administratively reviewable decision
APPEAL – leave to appeal – interlocutory decision – discretionary decision – House v The King principles – adequate reasons – breach of procedural fairness – constructive failure to exercise jurisdiction INTERIM APPLICATION – extension of time – delay – medical evidence – prejudice – substantial merit
Judgment of
Seiden SC DCJ, Deputy President
EA MacIntyre, Senior Member
APPEALS – order for adjournment to group list and notation of an agreement between the parties to pay instalments of rent – whether an internally appealable decision – whether leave to appeal should be granted. APPEALS – order noting written agreement of parties for payment of rental arrears exceeding jurisdictional limit of $15,000 – non-enforceable notation – not a decision capable of internal appeal. APPEALS – appeal of termination order – effect of eviction under warrant for possession executed before appeal hearing – grounds of appeal for remaining orders.
ADMINISTRATIVE LAW – review under section 62 NSW Trustee and Guardian Act 2009 (NSW) - NSW Trustee and Guardian – Interests and welfare of protected person – Whether to sell a protected person’s property – Financial management order –s16 NSW Trustee and Guardian Act 2009 (NSW)
APPEAL — questions of law — procedural fairness. LEASES AND TENANCIES — whether agreement is a residential tenancy agreement covered by the Residential Tenancies Act 2010 (NSW).
Judgment of
D Ziegler, Senior Member
Dr K George, Senior Member
COSTS –– whether there are “special circumstances” to warrant a cost order under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – death of the subject person rendered appeal futile – respondent’s deliberate failure to inform appellants of the subject person’s death before the appeal hearing unnecessarily disadvantaged the appellants – respondent’s conduct constitutes special circumstances warranting an award of costs COSTS –– application for indemnity costs – principles governing exercise of discretion under s 60(4)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) to make an order for indemnify costs – respondent’s deliberate failure to inform appellants of the subject person’s death before appeal hearing constituted a “relevant delinquency” COSTS –– application for award of costs in a fixed sum – principles governing exercise of discretion to fix costs under s 60(4)(b) of the Civil and Administrative Tribunal Act 2013 (NSW)
Judgment of
A Britton, Deputy President
L Organ, Senior Member
C Kennedy, General Member
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.
APPEALS- agreement on appeal that small additional amount should be paid to the appellant-appeal dismissed in respect of orders sought on appeal for more significant amounts.
Judgment of
P Durack SC, Senior Member
N Kennedy, Senior Member
GOVERNMENT INFORMATION — onus — application of s 105 of the Government Information (Public Access) Act 2009 (NSW) — whether applicant bears a “practical onus” to establish that requested information exists and is held by the agency ADMINISTRATIVE REVIEW — whether Tribunal has power to review a decision that is not the subject of an application for administrative review made under s 100 of the Government Information (Public Access) Act — whether parties can confer jurisdiction on the Tribunal by consent PROCEDURAL FAIRNESS — apprehended bias — bias by association — whether Member’s previous association with a party’s legal representative gives rise to a reasonable apprehension of bias PROCEDURAL FAIRNESS — apprehended bias — bias by conduct — whether Member’s conduct in hearing gives rise to a reasonable apprehension of bias PROCEDURAL FAIRNESS — hearing rule — whether by permitting party to amend documents the Tribunal failed to give a party a reasonable opportunity to be heard
REAL PROPERTY – HOME BUILDING – measure of damages for breach of contract – overheads and general operating expenses – whether required to be included – gross profit or net profit - obligation to identify components in issue – issue sought to be raised on appeal but not at primary hearing – Civil and Administrative Tribunal Act 2013 (NSW) ss 36, 38
Judgment of
G Burton SC, Senior Member
N Kennedy, Senior Member
TAX AND REVENUE – Whether “eligible transaction” for a duty exemption – existing house and shed on land when purchased - existing house rented to tenants – existing shed converted so owner could live there while building a new home on the land – no occupation certificates or approvals for existing house or shed as converted
ADMINISTRATIVE LAW — application under Child Protection (Working with Children) Act 2012 — refusal by Children’s Guardian in relation to a disqualified person — applicant found guilty of sexual touching without consent — enabling order application under section 28 — whether a real and appreciable risk is posed by the applicant to the safety of children
Judgment of
J Redfern PSM, Senior Member
K Stubbs, General Member
ADMINISTRATIVE LAW - administrative review - privacy - information protection principles - breach - alteration of personal information - accuracy of personal information before use - health privacy principles - alteration of health information - accuracy of health information before use - lawful purpose ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal
CONSUMER LAW – failure to provide transcript or written reasons – uncertainty whether jurisdictional facts the subject of findings – error of law requiring remitter
Judgment of
G K Burton SC, Senior Member
P H Molony, Senior Member
APPEAL- application to adjourn hearing refused-appeal against interlocutory decision-whether leave to appeal should be granted-whether appellant was denied procedural fairness or whether appellant had a reasonable opportunity to apply to amend the timetable for service of its evidence and/or apply to adjourn the hearing.
Judgment of
S Westgarth, Deputy President
R Alkadamani, Senior Member
COSTS – whether special circumstances established – no question of principle APPEALS —appeals in respect of matters of practice and procedure — no question of principle
Judgment of
R C Titterton OAM, Senior Member
P H Molony, Senior Member
JURISDICTION – disability discrimination – termination of employment - enterprise agreement - whether dispute is a matter that involves federal jurisdiction – dismissal
ADMINISTRATIVE LAW — Freedom of information — Access to information — Ground for refusing access raised by third party objector and opposed by respondent agency CIVIL PROCEDURE — Parties — Application for joinder
ADMINISTRATIVE REVIEW – request for information – draft Reports withheld by Council – whether overriding public interest considerations against disclosure
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 APPEALS — right of appeal — scope of right — question of law – No error on a question of law established — leave to appeal — principles governing – no prospect of success
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – excessive rent increase application – s 44(1)(a) Residential Tenancies Act 2010 (NSW) – provision of written residential tenancy agreement – conduct of agent of landlord – no error on a question of law established – no grounds for leave to appeal established
Judgment of
G Sarginson, Deputy President
S Hennings, Senior Member
APPEALS — application for extension of time to lodge an appeal — whether decision of NSW Civil and Administrative Tribunal under Residential Tenancies Act 2010 (NSW) precluded by res judicata or issue estoppel
Judgment of
Dr K M George, Senior Member
J Ledda, Senior Member
REVENUE LAW - State taxes - payroll tax - assessment - objection - appeal REVENUE LAW - penalties - reasonable care -whether tax default due to matters beyond control of taxpayer - remission - Revenue Ruling PTA 036 - Practice Note CPN 024 ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal
ADMINISTRATIVE LAW – NDIS worker check clearance – cancellation of a clearance - risk assessment - risk of harm to persons with disability – whether desirable to make a non-publication order
Judgment of
J Smith, Senior Member
P Foreman AM, General Member
APPEALS — Procedure — Further evidence on appeal - Appellant made application for the issue of a summons for a named person to give evidence and produce documents – Application dismissed
HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) --- where applicant has required the President of the Anti-Discrimination Board to refer a declined complaint 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
APPEAL – Jurisdiction of Appeal Panel – Appeal from decision refusing leave under s 96(1) of the Anti-Discrimination Act 1977 (NSW) – Whether internally appealable decision.
Judgment of
Seiden SC DCJ, Deputy President
Dr R Dubler SC, Senior Member
TAXATION – surcharge land tax – Trust not intended to include foreign beneficiaries – attempt to amend the terms of the Trust - whether deemed to be a foreign person for the purposes of s 5D of the Land Tax Act 1956 (NSW) – no discretion to relieve liability arising under the statutory provisions
APPEAL – Home Building Act – whether questions of law raised – adequacy of reasons – whether the owner validly terminated the contract and breached the contract by failing to pay a progress payment – competing evidence about defective work – the weighing of evidence
Judgment of
J Redfern PSM, Senior Member
N Kennedy, Senior Member
ADMINISTRATIVE LAW — Firearms licence — public safety — whether imposition of Special Condition on Firearms licence is necessary and proportionate to address an appreciable risk to public safety
HUMAN RIGHTS – discrimination – on the ground of disability – direct discrimination – indirect discrimination - education – denying or limiting access to a benefit – subjecting to a detriment
LAND LAW – Strata title – Appointment by Tribunal of strata managing agent pursuant to s 237 Strata Schemes Management Act – Relevant considerations APPEAL – Civil and Administrative Tribunal – Questions of law – Procedural fairness – Obligations of Tribunal to unrepresented litigant – Receipt of oral evidence not the subject of written evidence filed in accordance with directions APPEAL – Civil and Administrative Tribunal – Questions of law – Adequacy of reasons
Judgment of
D Robertson, Principal Member
L Andelman, Senior Member
APPEAL - Home Building Act 1989 (NSW) – refunds of provisional sums - compensation - loss of rent - decision not fair and equitable - decision against the weight of evidence - significant new evidence available
Judgment of
S De Jersey, Principal Member
H Woods, Senior Member
ADMINISTRATIVE REVIEW – firearms licence – revocation of licence – offence of affray – Applicant subject to conditional release order – factors relevant to exercise of Tribunal’s discretion – public interest – real and appreciable risk
APPEALS – leave to appeal- whether decision not fair and equitable – whether decision of Tribunal against the weight of the evidence – whether significant new evidence is now available which was not available at the time of the hearing
COSTS – party/party – special circumstances – whether party has refused or failed to comply with the duty imposed by s 36(3) of the Civil and Administrative Tribunal Act 2013 (NSW) – proceedings dismissed – no basis for indemnity costs
Judgment of
D Robertson, Principal Member
J McAteer, Senior Member
PRACTICE AND PROCEDURE – summons for production – document not in possession, custody or control of party – no obligation to seek document from third party
Judgment of
Seiden SC DCJ, Deputy President
H J Dixon SC, Senior Member
ADMINISTRATIVE LAW — Access to government information — CCTV of Police Station — whether personal information — whether disclosing copy of CCTV could reasonably be expected to have the effect to endanger or prejudice any system or procedure for protecting safety and security— personal factors and motivation of applicant — implied decision that agency does not hold information — balancing exercise — view only access.
COSTS - Party/Party — Appeals – amount in dispute exceeds $30,000 - general rule that costs follow the event – costs awarded in favour of successful respondent.
Judgment of
S de Jersey, Principal Member
M Deane, Senior Member
PRACTICE AND PROCEDURE – application to correct reasons for decision – s 63 of the New South Wales Civil and Administrative Tribunal Act 2013 (NSW) – slip rule
Judgment of
Seiden SC DCJ, Deputy President
H J Dixon SC, Senior Member
APPEAL – Civil and Administrative Tribunal – Questions of law – Failure to address a substantial argument – Denial of procedural fairness BUILDING AND CONSTRUCTION – Renewal of proceedings where work order not complied with – Assessment of compensation where work order not complied with
Judgment of
D Robertson, Principal Member
M Deane, Senior Member
ADMINISTRATIVE LAW; Government Information (Public Access) Act 2009; access to information; public interest considerations in favour of disclosure; public interest factors against disclosure; weighing considerations; discharge of onus; whether disclosure could reasonably be expected to prejudice the supply of confidential information
Appeal – claim for work orders and compensation under the Strata Schemes Management Act 2015 (NSW) – whether the two-year time limit under s 106(6) applies to all or only part of the application – error of law
Judgment of
S Westgarth, Deputy President
P H Molony, Senior Member
LICENSING – firearms – Applicant’s judgment in having a OMCG member provide permission to shoot on his property – fit and proper person – public interest
APPEAL – failure to consider submission – error on a question of law – constructive failure to exercise jurisdiction – material to outcome – rehearing by Appeal Panel – no jurisdiction to hear substantive application – appeal dismissed
Judgment of
K Ransome, Principal Member
E Bishop SC, Senior Member
ADMINISTRATIVE LAW - administrative review - assessment - objection - review by Civil and Administrative Tribunal STATE TAXES - surcharge land tax - discretionary trust – no amendment requirement - “sunset” date CONSTRUCTION OF DEEDS - intention of parties - reasonable person - amendment - irrevocable - defined terms within operative provisions
ADMINISTRATIVE LAW – administrative review –Government information – outcome report of an investigation into a complaint made by the Applicant against the Respondent - balancing competing public interest factors in favour of and against disclosure
COSTS — Party/Party — Self represented litigant at first instance – Costs’ Discretion Miscarried – not reasonable and plainly unjust – no special circumstances warranting costs’ order
CONSUMER LAW — Consumer guarantees — Supply of services — measure of damages under s 267(4) CONSUMER LAW — consumer claim made under the Fair Trading Act 1987 (NSW) — jurisdiction of NCAT — New Zealand company not a small proprietary company under s 79D — effect of s 79H placing onus on person asserting no jurisdiction. PRACTIVE AND PROCEDURE — r 29 of the Civil and Administrative Tribunal Rules 2014 — an entity substituted as a party to a completed consumer claim, after an appeal is commenced, is not thereby made a party to the appeal by operation of r 29(1)(b) —procedure to be followed on appeal in such circumstances.
Judgment of
E Bishop SC, Senior Member
P H Molony, Senior Member
ADMINISTRATIVE REVIEW – working with children check clearance – lapse of interim bar – jurisdiction – - - practical utility – dismissal – lacking in substance
PRACTICE AND PROCEDURE – extension of time in which to bring an application for review – whether leave is required to file application where an internal review has not been finalised within the statutory timeframe but has subsequently been determined. PROCEDURE – suppression orders – confidential nature of material –whether desirable to make orders under Civil and Administrative Tribunal Act 2013 (NSW), s 64 – extent of orders necessary.
APPEALS – procedure – time limits – application to extend time to lodge an appeal – exercise of discretion – reason for delay – prospects of success on appeal – grounds of amended appeal – misconstruction of s 48K of the Home Building Act – denial of procedural fairness APPEALS – points raised for first time on appeal – principles as to when Appeal Panel should allow points to be raised for first time on appeal – points not allowed to be raised
Judgment of
P H Molony, Senior Member
L Andelman, Senior Member
CIVIL PROCEDURE – Hearings – Suppression and non-publication – where Respondent to proceedings under the Anti-Discrimination Act seeks to have hearing held in private and publication of evidence prohibited – whether it is “desirable” to make those orders
Judgment of
Hennessy ADCJ, Deputy President
K Stubbs, General Member
COSTS – s 60 Civil and Administrative Tribunal Act 2013 (NSW) – rr 38 and 38A Civil and Administrative Tribunal Rules 2014 (NSW) – appeal from proceedings below involving costs – costs redetermined by Appeal Panel – whether amount “claimed or in dispute” greater than $30,000 – rr 38 and 38A inapplicable- no special circumstances established
Judgment of
G Sarginson, Deputy President
J Redfern, Senior Member
APPEALS – Civil and Administrative Tribunal – Question of Law ADMINISTRATIVE LAW – NSW Civil and Administrative Tribunal – Procedural fairness – Whether appellant denied procedural fairness when support person directed to leave the hearing room – Whether the removal of the support person was material to the decision BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) – Jurisdiction – Tribunal not deprived of jurisdiction because dispute not referred to Fair Trading NSW before proceedings commenced – Whether proceedings an abuse of process – Whether appellant entitled to compensation for alleged pain and suffering
Judgment of
D Robertson, Principal Member
L Andelman, Senior Member
TAXATION AND REVENUE – surcharge purchaser duty – whether the Applicant was a “foreign person” – whether the Applicant met the requirements for the exemption under s 104ZKA of the Duties Act 1997 (NSW) TAXATION AND REVENUE – interest and penalties
TAXES AND DUTIES – First Home Buyers Assistance Scheme – residence requirement –revocation of exemption of transfer duty – tax default – discretion to remit market and premium interest – exceptional circumstances – reasonable care
Administrative Law – GIPA Act – Government Information – access – personal information – whether disclosure is in the best interests of a child - balancing competing public interest factors for and against disclosure
BUILDING AND CONSTRUCTION – Home Building – renewal of proceedings where work order previously made under Schedule 4, Clause 8 of the Civil and Administrative Tribunal Act 2013 (NSW) – claim on renewal cannot include pre-existing defects not claimed in original proceedings. BUILDING AND CONSTRUCTION – Home Building –BC4 contract - extensions of time – form - requirement that variation be complete in order to claim extension of time BUILDING AND CONSTRUCTION – Home Building –quantum meruit claim – proof required.
Judgment of
P H Molony, Senior Member
L Andelman, Senior Member
TAXES AND DUTIES – transfer of farming property between family members – applicant transferee a company as trustee for a discretionary family trust – whether transfer exempt from duty under section 274 of the Duties Act 1997 (NSW) (Duties Act) - date on which the matters in section 274(2) to (4) must be satisfied. TAXES AND DUTIES - whether the amendment of the family trust deed that substituted another family member as the person entitled, as taker in default of appointment to the interest in the capital of the trust fund, has the effect that the three-year requirement in section 274(4A)(b)(ii) of the Duties Act 1997 (NSW) cannot be met.
ADMINISTRATIVE LAW – administrative review – Government information – failure to appear at hearing - public interest test – correct and preferable decision – confidential hearing
APPEALS – questions of law – procedural fairness – legal reasonableness – adequacy of reasons where statutory requirement to give written reasons – appeal dismissed ADMINISTRATIVE LAW – administrative review – fit and proper person
Judgment of
Armstrong J, President
K Robinson, Principal Member
APPEALS — where party appeals from interlocutory decision of Tribunal relating to non-disclosure, non-publication and exclusion of public from hearing —whether leave should be granted to appeal from interlocutory decision — leave to appeal refused CIVIL PROCEDURE — hearings – exclusion of public — non-disclosure and non-publication — powers of Tribunal under ss 49 and 64 of Civil and Administrative Tribunal Act 2013
Judgment of
Armstrong J, President
A Britton, Deputy President
Administrative Law Merits Review – private managers appointed – NSW Trustee and Guardian refused a gift to the financial manager from protected person’s estate– private manager seeks review – whether gift is seasonal in nature – whether gift is for a special occasion- whether gift is a donation of the nature made by protected person when they had capacity- paramount consideration is the welfare and interests of the person subject to the financial management order – correct and preferable decision
BUILDING AND CONSTRUCTION - CONTRACTS – Home Building Act 1989 (NSW) – general contractual principles - repudiation – measure and assessment of damages - calculation of damages – quantum meruit WORDS AND PHRASES - prime costs – provisional sums
Judgment of
S Westgarth, Deputy President
M Tyson, Senior Member
APPEALS — Appeal on question of law – Scope of question of law APPEALS — Constructive failure to exercise jurisdiction by not addressing a material issue or by overlooking material evidence – No constructive failure to exercise jurisdiction APPEALS — Leave to appeal — Principles governing – Leave to appeal refused BUILDING AND CONSTRUCTION – Residential building work – Statutory warranties under Home Building Act 1989 (NSW) – Claim by owners against builder – Whether the owners breached their duty to mitigate their loss CONSUMER LAW – Misleading or deceptive conduct – Contract for residential building works – Representation by director and by silence that the works would be carried out by appropriately licensed, qualified and experienced tradesmen – Whether the representation was actionable - Whether the representation was untrue – Whether the director is personally liable for the loss suffered by the owners
Judgment of
G Blake AM SC, Principal Member
J Ledda, Senior Member
COSTS – interlocutory appeal against a stay order made in the Administrative and Equal Opportunity Division – each party to pay their own costs – s 60 of the Civil and Administrative Tribunal Act 2013
Judgment of
Balla ADCJ, Principal Member
P H Molony, Senior Member
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – ss 87, 154A, 154E - Housing Act 2001 (NSW) – s 57 – Whether the Tribunal has jurisdiction to consider the circumstances in which a rental subsidy was terminated
Judgment of
D A C Robertson, Principal Member
Dr K M George, Senior Member
ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal - merits review LICENCING - firearms - licence - fit and proper person - public interest - public safety - domestic violence
ENVIRONMENT AND PLANNING — Fences and boundaries — Dividing Fences Act 1991 (NSW) – Renewal of proceedings – Whether fence constructed in substantial compliance with orders of Tribunal ADMINISTRATIVE LAW – Civil and Administrative Tribunal – Procedural fairness – Whether appellant denied procedural fairness when Tribunal reserved decision and directed the filing of expert reports
Judgment of
D Robertson, Principal Member
C Mulvey, Senior Member
APPEAL – Australian Consumer Law – defective engine – alleged sale by auction – whether findings of Tribunal in error – leave to rely on evidence refused by Tribunal at first instance– procedural fairness – order for costs challenged – whether questions of law raised – leave to appeal requested
APPEAL – Dividing fences- no error of law or basis to grant leave to appeal- necessity for orders to expressly identify the party responsible for causing the fencing work to be carried out.
APPEAL – Denial of procedural fairness alleged – not established APPEAL – no realistic possibility of different outcome if the application was remitted for rehearing
Judgment of
G Ellis SC, Senior Member
N Kennedy, Senior Member
VICTIMS Support – Administrative law – act of violence – single act of violence as series of related acts -whether evidence satisfied elements of act of violence being treated as separate acts– whether medical evidence verifies injury arising from series of acts –- related acts – unelated acts – circumstances of acts of violence
ADMINISTRATIVE LAW — Application for review under s 27(2) of Child Protection (Working with Children) Act 2012 — Applicant was given a working with children check clearance in 2020 despite conviction for intimidation and assault of an adult in 2019 — Report of charge of domestic violence offences in 2023 caused clearance to be cancelled and an interim bar imposed — Subsequent criminal proceedings in 2024 found applicant not guilty of domestic violence charges — Tribunal to assess whether applicant poses a risk to the safety of children.
Judgment of
A Starke, Senior Member
J Herberte, General Member
ADMINISTRATIVE LAW – Government Information – discretion to refuse to deal with application – how discretion should be applied – systemic factors – weight applied to factors
Appeals – failure to consider and determine issues raised for adjudication – denial of procedural fairness – implied terms in oral agreement – misleading and deceptive conduct by silence
Judgment of
S Westgarth, Deputy President
H Dixon SC, Senior Member
LEASES AND TENANCIES — termination of fixed term residential tenancy agreement — termination order under former s 84 of the Residential Tenancies Act 2010 (NSW) — suspension of order for possession — effect of eviction under warrant executed before appeal hearing
ADMINISTRATIVE LAW – Government Information – discretion to refuse to deal with application – how discretion should be applied – systemic factors – weight applied to factors
COSTS – costs application by the respondent – principles – withdrawal of appeal by the appellant - no hearing on the merits – costs application dismissed
TAXATION AND REVENUE – First Home Owner Grant – residence requirement INTERLOCUTORY PROCEDURE – application for non-publication and to prohibit disclosure of name – whether desirable to make a suppression order
PRACTICE AND PROCEDURE – improper constitution of tribunal at first instance – decision vitiated by jurisdictional error – decision set aside APPEAL – Anti-Discrimination Act 1977 (NSW) –defence to complaint invokes federal jurisdiction – Tribunal has no jurisdiction to resolve
Judgment of
Seiden SC DCJ, Deputy President
H Dixon SC, Senior Member
ADMINISTRATIVE REVIEW – reporting obligations for registrable persons under Child Protection Register – whether the Tribunal has the power to exempt reporting obligations – suspension of reporting obligations - summary dismissal – misconceived and lacking in substance