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
APPEALS – internal appeal under s80 of the Civil and Administrative Tribunal Act 2013 as of right “on any question of law” - questions of law – applying wrong principle of law –failure to take into account relevant evidence – failure to give proper reasons
APPEALS — Strata title – whether owners corporation breached the statutory duty to properly maintain and keep in a state of good and serviceable repair the common property – whether managing agent should be compulsorily appointed – whether wrong principle of law applied – whether leave should be granted – appeal filed out of time
Judgment of
K Ransome, Principal Member
L Andelman, Senior Member
APPEALS – from decision of NSW Civil and Administrative Tribunal (NCAT) to reappoint Public Guardian as guardian – no error on question of law – leave to appeal refused – no obvious factual error or unorthodox approach to fact-finding – no other basis on which leave should be granted STATUTORY CONSTRUCTION – whether NCAT misconstrued ss 15(3) and 17 of the Guardianship Act 1987 (NSW) – whether NCAT applied a wrong principle of law when appointing Public Guardian GUARDIANSHIP – whether NCAT failed to apply s 4 of the Guardianship Act 1987 (NSW) – whether NCAT failed to apply correct legal test when appointing Public Guardian PROCEDURAL FAIRNESS – whether NCAT acted in a procedurally unfair manner in conduct of hearing – no procedural fairness breach established – whether NCAT demonstrated actual or apprehended bias – no allegation of bias established
Judgment of
Armstrong J, President
J Kearney, Senior Member
F Given, General Member
ADMINISTRATIVE LAW — application under Child Protection (Working with Children) Act 2012 — refusal by Children’s Guardian in relation to a disqualified person — applicant pleaded guilty to offence in Victoria — enabling order application under section 28 — whether a real and appreciable risk is posed by the applicant to the safety of children— enabling order made.
Judgment of
J Redfern PSM, Senior Member
Emeritus Prof P Foreman AM, General Member
Applicant seeks enabling order - application for extension of time to lodge application for review of decision to cancel Working With Children Check Clearance - delay of 444 days, no adequate explanation for the majority of the delay
APPEAL - Residential Tenancies Act 2010 (NSW) – termination for non-payment of rent - transcript or sound recording not provided - leave to appeal refused
Judgment of
Dr K M George, Senior Member
M Tyson, Senior Member
COSTS – special circumstances established – out of the ordinary – not exceptional - s 60 Civil and Administrative Tribunal Act 2013 (NSW) – party/party costs awarded as agreed or assessed – application arguably weak
ADMINISTRATIVE LAW — refusal to renew a contractor licence under the Home Building Act 1989 (NSW) — effect of recent convictions for failing to report contact with children on applicant’s fitness and propriety — whether Tribunal misconstrued statute — extent to which Tribunal may go behind criminal convictions and sentences
Judgment of
Seiden SC DCJ, Deputy President
J Ledda, Senior Member
LAND LAW — Strata title — By-laws – maintenance and repair of lot property and common property – rights and obligations of lot owner – effect of special by-law APPEALS –whether any error on a question of law–- appeal allowed for procedural unfairness- remitted to Tribunal for redetermination
ADMINISTRATIVE LAW — Application for review under s 27 of Child Protection (Working with Children) Act 2012 — untested allegations of child sexual assault — confidentiality orders for confidential police documents — whether the applicant poses a risk to the safety of children
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 - mental health — breaches of legislation — domestic violence
ADMINISTRATIVE LAW — Freedom of information — Access to information — refusal to deal with application for the same information — whether there are no reasonable grounds for believing the agency would make a different decision on an application for the same information — conclusive overriding presumption against disclosure — legal professional privilege — client legal privilege — death of the client — waiver
LAND LAW — Strata title — By-laws - Appeal from order of Tribunal dismissing an application that a by-law be declared invalid by reason of being harsh, unconscionable or oppressive — No question of principle
Judgment of
D Robertson, Principal Member
R C Titterton OAM, Senior Member
APPEALS – questions of law – leave to appeal – constructive failure to exercise jurisdiction – application of wrong legal principle – errors of mixed fact and law CONSUMER LAW – s 54 Australian Consumer Law 2010 (NSW) – water ingress into vehicle – manufacturing defect – subsequent repairs under warranty – causation – principles applicable CONSUMER LAW – s 60 Australian Consumer Law 2010 (NSW) – performance of repairs – scope and extent of duty CONSUMER LAW – s 272 Australian Consumer Law 2010 (NSW) – principles applicable CONSUMER LAW – Bailment – duty of a bailee – scope and extent of duty
Judgment of
G Sarginson, Deputy President
J Gatland, Senior Member
APPEALS – costs– special circumstances established – out of the ordinary - s 60 Civil and Administrative Tribunal Act 2013 (NSW) – baseless appeal unsupported by evidence
Judgment of
K Ransome, Principal Member
L Andelman, Senior Member
LAND LAW -strata titles - dispute between lot owner and owners corporation about the amount of the lot owner’s contribution and payment of interest-claims by lot owner for orders under s 85 (8) and s 87 (1) of the Strata Schemes Management Act 2015 (NSW)-whether s 87 (1) gives power to the Tribunal to vary the single lot owner’s contribution due to reasons peculiar to lot owner - claim that strata manager should be removed. APPEALS – contention of bias not established - no appealable error shown in respect of substantive claims - consideration of adequacy of reasons where the Tribunal states that it adopts the submissions of the owners corporation - appealable error established in respect of order made by the Tribunal that the appellant pay the respondent’s costs of the primary proceedings.
Judgment of
P Durack SC, Senior Member
R Perrignon, Senior Member
APPEALS — whether Tribunal erred in dismissing appellant’s application for review pursuant to Administrative Decisions Review Act 1997 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
ADMINISTRATIVE LAW – Privacy and Personal Information Protection Act 1998 (NSW) – is a complaint personal information in the circumstances – whether there was an unauthorised disclosure under IPP 11 – whether reasonable security safeguards were taken under IPP 5 – systemic issues – damages for distress without a medical certificate
APPEALS — Appeal on question of law – Scope of question of law LAND LAW - Strata title – Whether the owners corporation breached the statutory duty to properly maintain and keep in a state of good and serviceable repair the common property - Whether the owners corporation is liable to a lot owner for damages for temporary accommodation expenses for breach of statutory duty – Whether temporary accommodation costs and loss of amenity damages were a foreseeable loss suffered by the lot owner – Whether the Tribunal should have exercised the power to remove a lot owner as a member of the strata committee of the owners corporation - Whether the Tribunal had power to restrain a lot owner from acting as a member of the strata committee or as an officer of the owners corporation
Judgment of
G Blake AM SC, Principal Member
M Tyson, Senior Member
ADMINISTRATIVE LAW – administrative review – assessment - objection – review by Civil and Administrative Tribunal STATE TAXES - land tax - surcharge land tax - exemption - whether exemption under Land Tax Act 1956 applies to surcharge land tax - permanent resident - statutes read and construed together - unfairness
COSTS – special circumstances established – out of the ordinary – not exceptional - s 60 Civil and Administrative Tribunal Act 2013 (NSW) – fixed sum awarded – party/party costs – appeal without merit – arguably weak
Judgment of
I R Coleman SC ADCJ, Principal Member
C Mulvey, Senior Member
M Bolt, General Member
JURISDICTION – disability discrimination – termination of employment - enterprise agreement - whether dispute is a matter that involves federal jurisdiction – dismissal
PRACTICE AND PROCEDURE – summary dismissal of proceedings under s55(1)(b) of the Civil and Administrative Act 2013 – whether the applicant’s discrimination claims are frivolous or vexatious or otherwise misconceived or lacking in substance. HUMAN RIGHTS – discrimination – on the ground of disability – in the provision of goods and services
TAXES AND DUTIES – surcharge purchaser duty – principal place of residence exemption – remission of market rate of interest – remission of premium rate component of interest
ADMINISTRATIVE LAW – Education and Care Services National Law – review of decision to cancel a prohibition notice - assessment of risk – unreasonable risk– protective jurisdiction - correct and preferable decision
ADMINISTRAIVE LAW – child protection – working with children check clearance – enabling order – whether application has discharged his onus to rebut the presumption that he poses a risk to the safety of children
BANKRUPTCY — Proceedings previously commenced by bankrupt — Whether administrative review proceedings in the Tribunal constitute an “action” for the purposes of s 60 of the Bankruptcy Act 1966 (Cth) — Abandonment
Judgment of
Seiden SC DCJ, Deputy President
D Robertson, Principal Member
APPEALS – Tribunal powers – control of proceedings – where appellant is a maximum security inmate at Goulburn Correctional Centre – where appellant seeks additional out-of-cell computer access including during lock-ins to prepare for the appeal – relevant principles – application granted in part and otherwise dismissed
ADMINISTRATIVE LAW – Privacy – Information Privacy Principles – IPP 5 Protection of personal information – IPP 10 Use of personal information – IPP 11 Disclosure of personal information – whether “use” or “disclosure” - Photography of school students – publication of School newsletters – appropriate relief
EVIDENCE – mistake of fact – finding without evidence suitability of private manager PROCEDURAL FAIRNESS – Civil and Administrative Tribunal Act 2013 (NSW), ss 38(5), 38(6)(c) – whether Tribunal failed to afford the appellant a reasonable opportunity to respond to adverse evidence – whether by imposing limits on the time available to the appellant to make submissions the tribunal failed to afford the appellant a reasonable opportunity to put her case
Judgment of
A Britton, Deputy President
C Mulvey, Senior Member
J Le Breton, General Member
COSTS – s 60 Civil and Administrative Tribunal Act 2013 (NSW) – special circumstances – long delay in filing appeal – lack of prospects of success – discretion to make a costs order – whether discretion should be exercised in favour of making a costs order
Judgment of
G Sarginson, Deputy President
S de Jersey, Principal Member
LANDLORD AND TENANT – residential tenancy – s 115 Residential Tenancies Act 2010 (NSW) – whether notice of termination was retaliatory APPEAL – procedural fairness alleged but not established – all other grounds of appeal only raised questions of fact – no plain error established and not shown that Tribunal’s factual conclusions were more than arguably wrong
Judgment of
P Durack SC, Senior Member
G Ellis SC, Senior Member
APPEALS – costs – r 38 Civil and Administrative Tribunal Rules 2014 (NSW) - proceedings settled by consent orders – no hearing on the merits – applicable costs principles
Judgment of
G Sarginson, Deputy President
J Redfern, Senior Member
COSTS – Argument withdrawn by Applicant at hearing following testimony – late notice by Applicant requiring Respondent’s witnesses to attend – procedural history - onus of proof – concession by Applicant – application allowed to extent of Applicant’s concession
APPEALS – application to reopen appeal - power of the Appeal Panel to reconsider original costs decision in the absence of an appeal – application dismissed COSTS – application to vary costs order by the respondent – application dismissed
Judgment of
G Blake AM SC, Principal Member
D Goldstein, 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 – Children (Education and Care Services) National Law – long day care centre – nominated supervisor – prohibition notice – inappropriate discipline by educator – failure to report to parent - provision of false and misleading information to Regulatory Authority
Judgment of
L Rogers, Senior Member
J Herberte, General Member
APPEALS – internal appeal under s80 of the Civil and Administrative Tribunal Act 2013 as of right “on any question of law” - questions of law – “no evidence” – “unreasonableness” – procedural fairness – extension of time – whether to grant leave to extend time – whether reasonable chance of success.
Judgment of
S De Jersey, Principal Member
M Deane, Senior Member
APPEAL- contract for provision of services- no reliable record provided for the reasons given orally at first instance- both parties at fault-whether deposit should be retained or returned in full or in part- other claims for compensation.
Judgment of
S Westgarth, Deputy President
D Goldstein, Senior Member
LEASES AND TENANCIES – residential tenancy – landlord’s claim for end of tenancy compensation and payment of rental bond dismissed APPEALS – whether decision against weight of evidence – whether decision not fair and equitable – whether there is significant new evidence not reasonably available – leave to appeal refused – no issue of principle
Judgment of
D Charles, Senior Member
R Dubler SC, Senior Member
CONSUMER LAW – consumer guarantee in s 60 of the Australian Consumer Law (NSW) in respect of services – services in the rebuild of a car engine – competing expert evidence as to cause of engine failure APPEALS – leave to appeal required – application of leave to appeal principles – Tribunal preferred respondent’s expert to the appellant’s expert – appellant seeking to reargue the merits with the assistance of new evidence- no point of principle – new evidence not shown to be not reasonably available at the time of the hearing – not shown that Tribunal’s factual conclusions were more than arguably wrong
Judgment of
P Durack SC, Senior Member
G Ellis SC, Senior Member
LICENSING - firearms - refusal– whether or not it is in the public interest for applicant to hold a licence–fitness and propriety– candour –traffic offences – late renewals of licence
APPEAL – Review under Taxation Administration Act 1996 (NSW) – Whether Tribunal exercising judicial or administrative power TAXES AND DUTIES – Dutiable transactions – Exemption claimed under Commonwealth law – Section 90 of the Family Law Act 1975 (Cth) – Whether Tribunal bound by High Court authority when determining an administrative review – Gazzo v Comptroller of Stamps (Vic) (1981) 149 CLR 227 applied
Judgment of
Seiden SC DCJ, Deputy President
H Dixon SC, Senior Member
SUMMONS – summons to produce police body worn video footage – footage is protected information under Surveillance Devices Act 2007 – prohibition on use, communication or publication of such information – application to set aside summons – NSW Commissioner of Police v Zurich Australian Insurance Ltd applied – no legitimate forensic purpose – no exception to prohibition on use, communication or publication
TAXES AND DUTIES – transfer duty – purchase of property off the plan - tax default – discretion to remit market and premium interest – exceptional circumstances – reasonable care
APPEAL – directions at first instance for the lodgment of documents and submissions on costs - whether an internally appealable decision – whether leave to appeal should be granted.
Judgment of
A. Bell SC, Senior Member
M. Tibbey, Senior Member
LICENSING – whether the Tribunal erred in confirming the revocation of the Appellant’s firearm licence – whether appeal grounds raise questions of law – whether leave should be granted – whether the Tribunal failed to take into account relevant considerations, made findings without evidence and whether the Tribunal misapplied the law
Judgment of
Dr R Dubler SC, Senior Member
J Redfern, Senior Member
APPEAL – error on a question of law – Residential Tenancies Act 2010 (NSW) – compensation – continuing breach – failure to repair defects existing at commencement of tenancy – rent reduction for withdrawal or reduction of goods, services or facilities
Judgment of
S de Jersey, Principal Member
Dr K M George, Senior Member
GUARDIANSHIP — whether the Tribunal misapplied s 17(1)(c) of the Guardianship Act 1987 (NSW) — point in time Tribunal is required to form state of satisfaction about whether proposed guardian is able to exercise the functions conferred by the guardianship order GUARDIANSHIP — whether in appointing the Public Guardian the Tribunal failed to have regard to the views of the Daughter as required by s 4(d) of the Guardianship Act 1987 (NSW) PROCEDURAL FAIRNESS — whether the Tribunal failed to give the appellant a reasonable opportunity to respond to adverse material — whether Tribunal was obliged to disclose its proposed conclusions
Judgment of
A Britton, Deputy President
A R Boxall, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
APPEAL – Denial of procedural fairness – issue not raised with parties during hearing – failure to provide opportunity for submissions APPEAL – Claim raised by applicant not considered CONSUMER LAW – Limitation periods – Fair Trading Act 1987 (NSW), s 79L(1)(a) considered
Judgment of
G Ellis SC, Senior Member
P Durack SC, Senior Member
Administrative Law - administrative review – Government information – whether subject information is “commercial in confidence” information of a third party - information provided in confidence – confidential evidence - balancing the public interest – correct and preferable decision
STATUTORY INTERPRETATION — meaning of definition of “tow truck” in Tow Truck Industry Act 1998 (NSW) — effect of expression “used or operated for the purposes of towing motor vehicles” in definition CIVIL PROCEDURE — proper respondent where administratively reviewable decision made by delegate
Judgment of
G Blake AM SC, Principal Member
J Ledda, Senior Member
APPEAL – questions of law - refusal of adjournment – whether denial of procedural fairness – application of consumer law – fresh evidence additional material refused
Judgment of
K Ransome, Principal Member
K Robinson, Principal Member
LEASES AND TENANCIES –delay in filing appeal – - extension of time application - decision not fair and equitable – Tribunal failed to take into consideration rent arrears in making rent refund order
Judgment of
S de Jersey, Principal Member
Dr K George, Senior Member
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 - wine grapes - sale – use for secondary production
HUMAN RIGHTS – racial discrimination alleged in employment – applicant identified as being of Spanish origin – whether the employer terminated the applicant’s employment on the ground of the applicant’s race or nationality or ethnicity
Judgment of
Dr R Dubler SC, Senior Member
J Herberte, General Member
APPEALS — right of appeal — scope of right — error of law – No error on a question of law established APPEALS — leave to appeal — principles governing – leave refused
Judgment of
G Burton SC, Senior Member
N Kennedy, Senior Member
GUARDIANSHIP — whether Tribunal failed to consider evidence or considered irrelevant evidence. PROCEDURAL FAIRNESS — whether unanticipated presence of party denied procedural fairness to another party; whether the applicant was able to respond to a document provided days before the hearing.
Judgment of
R Booby, Principal Member
L Organ, Senior Member
M Bolt, General Member
CONSUMER LAW-whether breach of statutory guarantees in the Australian Consumer Law (NSW) for the supply of services in rebuilding a car engine-engine subsequently failed-failure to prove case-claimant’s expert evidence did not establish that the respondent was responsible for the cause of the engine failure. APPEALS-whether alleged errors of law made out-alleged failure to consider some of appellant’s claims-whether Tribunal overlooked material evidence-no appealable error established.
Judgment of
P Durack SC, Senior Member
J Redfern, Senior Member
LAND LAW — Strata titles — legality of by-laws — whether one by-law was invalid because it was made beyond power — whether another by-law was void for uncertainty APPEALS — errors of law — new points of law permitted to be raised on appeal
Judgment of
G Ellis SC, Senior Member
P Durack SC, Senior Member
BIRTHS DEATHS AND MARRIAGES – application to correct the register – correction of father’s name on birth certificate – correction of death certificates
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 APPEALS — Leave to appeal — Principles governing – leave to appeal granted BUILDING AND CONSTRUCTION – Residential building work – Statutory warranties under Home Building Act 1989 (NSW) – Claim by owner against builder – Claim by builder against owner for money owing under contract
Judgment of
G Blake AM SC, Principal Member
J Gatland, Senior Member
INTERLOCUTORY – Stay – Children and Young Persons (Care and Protection) Act 1998 – out of home care – application for restoration of care placement pending final determination – consideration of factors
ADMINISTRATIVE LAW – administrative review – approval to remove club licence to new premises –whether decision to impose conditions on licence administrative reviewable – meaning of “in relation to”
APPEALS — Appeal on question of law – Scope of question of law LAND LAW — Strata title – Whether the owners corporation breached the statutory duty to properly maintain and keep in a state of good and serviceable repair the common property – Whether the owners corporation is liable to a lot owner for damages for loss of rent for breach of statutory duty and in nuisance – Whether the owners corporation is liable to a work order to repair the common property and lot of the lot owner
Judgment of
G Blake AM SC, Principal Member
D Goldstein, Senior Member
APPEALS – Civil and Administrative Tribunal - privacy – health records - s500(2) Corporations Act - stay as a result of party in liquidation – no merit to grounds
Judgment of
S Westgarth, Deputy President
K Robinson, Principal Member
COSTS – costs application by the respondent against non-parties – principles – appeal lodged by non-parties - withdrawal of appeal by the non-parties - no hearing on the merits – costs application dismissed
ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – evidence of behaviour that caused harm to children
Judgment of
J McAteer Senior Member (Legal)
E Hayes General Member (Community)
ADMINISTRATIVE LAW - administrative review - government information - access application - enforceable right to access government information - presumption in favour of disclosure of government information - overriding public interest against disclosure - public interest considerations against disclosure - public interest considerations in favour of disclosure - balance - deliberations of government - risk of harm or serious harassment or serious intimidation - endangering security of or prejudice to system or procedure - personal information - client legal privilege ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal
ADMINISTRATIVE LAW – combat sports - administrative review – industry participant and promoter registration - grounds for disciplinary action - fit and proper person
ADMINISTRATIVE REVIEW – Firearms Act 1996 – refusal of a Category A firearms licence – fit and proper person - public safety – continuous and responsible control – contact with son with criminal history – Applicant’s traffic record – public interest
GUARDIANSHIP — whether Tribunal failed to consider evidence - whether guardian was able to exercise the services function (s 17(1)(c) of the Guardianship Act 1987 (NSW)) EVIDENCE — no evidence - whether no evidence to support finding that guardian was not able to exercise the services function PROCEDURAL FAIRNESS — whether by conducting a hearing in the absence of the person the subject of the application for review of the guardianship order the Tribunal failed to afford that person procedural fairness PROCEDURAL FAIRNESS — whether the Tribunal gave the guardian a reasonable opportunity to present his case and to respond to allegations CONSTITUTION OF TRIBUNAL — whether the Tribunal was constituted in accordance with Civil and Administrative Tribunal Act 2013 (NSW), Sch 6 cl 4(1).
Judgment of
A Britton, Deputy President
L Organ, Senior Member (Legal)
Dr M Spencer, General Member (Community)
ADMINISTRATIVE LAW-administrative review of appellant’s decision concerning access to parts of health records - redacted information not disclosed to the respondent - whether redacted information contained personal information of third parties within the meaning of clause 3(a) of Table 14 in section 14 of the Government Information (Public Access) Act 2009 - whether redacted information fell within clause 3(f) of this Table - redacted information consisted of opinions, concerns and knowledge about the respondent communicated to employees of the appellant. APPEAL - application for Appeal Panel to recuse itself refused - actual bias – apprehended bias whether the decision concerning cl 3 (a) was legally unreasonable - whether other grounds of appeal established.
Judgment of
P Durack SC, Senior Member
L Andelman, Senior Member
APPEAL – HOME BUILDING ACT-no issue of principle – reference to legislative preference for rectification work to be carried out by the responsible party
ADMINISTRATIVE LAW - privacy - information protection principles - jurisdiction - civil proceedings - reasonable safeguards protecting information - “use” of information ADMINISTRATIVE LAW - reviewable decision - conduct - correct and preferable decision - Civil and Administrative Tribunal
ADMINISTRATIVE LAW — administrative review of revocation of teacher accreditation under Teacher Accreditation Act 2004 (NSW) — failure to meet professional teaching standards — allegations of bias and unfairness concerning Teacher Improvement Program
APPEAL- whether an application under s 149(1)(c) of the Strata Titles Management Act must be brought within the time of 28 days provided for by r 23(3)(b) of the Civil and Administrative Rules
Judgment of
S Westgarth, Deputy President
Dr K George, Senior Member
LANDLORD AND TENANCY - whether leave to appeal should be granted – no basis for the grant of leave made out – whether the Tribunal failed to afford the Appellant procedural fairness – no procedural unfairness made out
Judgment of
Dr R Dubler SC, Senior Member
J Connelly, Senior Member
APPEAL – where Tribunal summarily dismissed application for administrative review – whether leave should be granted to appeal from interlocutory decision
Judgment of
ADCJ Hennessy, Deputy President
R Booby, Principal Member
M Bolt, General Member
GOVERNMENT INFORMATION-whether unredacted version of COPS report with respect to an event concerning a camera in the male toilets of a café in Sydney should be disclosed to the appellant in response to his access application under the Government Information (Public Access) Act 2009 (NSW)-whether the public interest considerations against disclosure outweighed the public interest considerations in favour of disclosure APPEALS-no error of law-no grounds for leave to appeal established
Judgment of
P Durack SC, Senior Member
N Kennedy, Senior Member
TAXES AND DUTIES — Dutiable transactions —Concession from duty under First home buyers assistance scheme — Reassessment — No exercise of discretion - Onus of proof not satisfied
Appeal – Residential Tenancy Agreement – dispute over bond – procedural unfairness by refusal to give weight to photographs – Appellant suffered no adverse consequences having regard to landlord’s evidence
Judgment of
S Westgarth, Deputy President
H Dixon SC, Senior Member
APPEAL – surcharge land tax – primary liability accepted – discretion to remit interest on reassessment under s 25 of the Taxation Administration Act 1996 (NSW)
Judgment of
Seiden SC DCJ, Deputy President
J Sullivan, Senior Member
ADMINISTRATIVE LAW – Civil and Administrative Tribunal (NSW) – application made out of time – First Home Owners Grant and First Home Buyers Assistance Scheme – application for extension of time – exercise of discretion TAXES AND DUTIES – First Home Owners Grant and First Home Buyers Assistance Scheme – residence requirement – discretion to ease or waive the requirement
ADMINISTRATIVE LAW - combat sports - registration as combatant - fit and proper person - general prohibition order – appropriateness of length of general prohibition order ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - appeal - Civil and Administrative Tribunal
HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) – interim order – complaint of vilification on the basis of homosexuality – no utility in granting interim relief CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings – no jurisdiction
APPEAL – Home Building Act 1989 (NSW) – contract – form of contract – enforceability of contract – repudiation – insurance – effect of failure to insure APPEAL – Parties – Joinder – party at first instance not named as respondent on appeal – proper and necessary party LEAVE TO APPEAL – Appeals from the Consumer and Commercial Division – construction and application of cl 12, Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW) – question of law – fair and equitable – against the weight of evidence – significant new evidence
Judgment of
Seiden SC DCJ, Deputy President
J Redfern, Senior Member
ADMINISTRATIVE LAW — Application for review under s 27 of Child Protection (Working with Children) Act 2012 — untested allegations of child sexual assault — witnesses not made available for cross-examination — whether the applicant poses a risk to the safety of children
Judgment of
L Bryant, Senior Member
Emeritus Prof P Foreman AM, General Member
RESIDENTIAL TENANCY – the tenant was resident in New South Wales and the landlord resident overseas – the Tribunal wrongly determined that the Tribunal had no jurisdiction on the basis that it was exercising federal jurisdiction – no federal jurisdiction arises where the Tribunal is dealing with one party resident in New South Wales and the other party is overseas
Judgment of
Dr R Dubler SC, Senior Member
J Connelly, Senior Member
HUMAN RIGHTS – discrimination – on the ground of disability and sex – direct and indirect discrimination alleged – whether medical device provided to the applicant – meaning of “provide” – whether the respondent refused to provide medical device to the applicant when product discontinued by US parent.
Judgment of
J Redfern PSM, Senior Member
Dr M Murray, General Member
ADMINISTRATIVE REVIEW – Firearms Act 1996 – revocation of a Category AB firearms licence – fit and proper person - public interest – criminal and traffic offences – victim of shooting – cultivation of cannabis at house owned by Applicant – genuine reasons – incorrect information on licence applications
ADMINISTRATIVE LAW - administrative review -reviewable decision - review by Civil and Administrative Tribunal ADMINISTRATIVE LAW - refusal of working with children check clearance - no conviction - apprehended domestic violence order - evidence - mandatory considerations - offence - reasonable person test - public interest test
Judgment of
EA MacIntyre, Senior Member
P Foreman, General Member
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 appeal – prejudice – actual bias – apprehended bias – denial of procedural fairness ADMINISTRATIVE LAW – administrative review – Government Information – whether there is an overriding public interest against disclosure – balancing the public interest
Judgment of
Seiden SC DCJ, Deputy President
L Andelman, Senior Member
TAXES AND DUTIES – surcharge purchaser duty and surcharge land tax – whether applicant a foreign person at the relevant taxing date in 2019, 2020, 2021 and 2022 – since 2016 the applicant has been the holder of a bridging visa which allowed her to remain in Australia while her application for a permanent visa was being processed – whether the applicant is exempt from surcharge purchaser duty and surcharge land tax
Administrative Law – government information - statutory interpretation – meaning of s 63(3)(d) of the Administrative Decisions Review Act 1997 (NSW) – whether Tribunal has jurisdiction to entertain a new application for administrative review of a decision made by the respondent following remittal under s 63(3)(d)
Costs - rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 – appeal allowed - costs of appealed proceedings to be costs in the cause on rehearing – costs of appeal to follow the event – measure of costs recoverable by self-represented parties –where leave to be legally represented not sought or obtained – discretion to make costs orders – meaning of disbursements and out of pocket expenses.
Judgment of
P H Molony, Senior Member
D G Fairlie, Senior Member
APPEALS — home building — exercise of discretion — adequacy of evidence APPEALS — Procedure — Stay pending appeal — abuse of process — relitigating interlocutory application — oppressive — contrary to administration of justice
Judgment of
E Bishop SC, Senior Member
PH Molony, Senior Member
ADMINISTRATIVE LAW – administrative review – Government information – balancing the public interest – confidential evidence - correct and preferable decision
ADMINISTRATIVE LAW – administrative review – Government information – where senior member resigned – reconstitution of Tribunal - alleged improper conduct of the agency – scope of access application – reasonable searches – correct and preferable decision
APPEAL – Administrative review – Jurisdiction – Notice of suspension of firearms licence – No expiry date on Notice – Whether invalid firearms licence suspension notice can or does amount to revocation notice – Tribunal’s jurisdiction to administratively review purported decisions
Judgment of
Seiden SC DCJ, Deputy President
H Dixon SC, Senior Member
ADMINISTRATIVE LAW — administrative review of access refusal under Government Information (Public Access) 2009 (NSW) — effect of systemic public interest considerations against disclosure — scope of remittal by Appeal Panel for reconsideration
ADMINISTRATIVE REVIEW – Firearms Act 1996 – refusal of a Category ABH firearms licence – public interest – public safety - firearms charges arising from operation of licensed firearms dealership – treatment of previous findings made by Tribunal
ADMINISTRATIVE LAW – Application for review under s 28 of the Child Protection (Working with Children) Act 2012 (NSW) – Applicant a “disqualified person” – Conviction for offence of commit act of indecency with person 16 years or over contrary to s 61N(2) (repealed) of the Crimes Act 1900 – Presumed to be a risk to the safety of children –Whether the applicant has proven to the contrary – Enabling order granted
PRACTICE AND PROCEDURE – Civil and Administrative Tribunal – Civil and Administrative Tribunal Regulation 2022 cl 9 – Extension of time to file application to set aside decision made in the absence of a party
Judgment of
D Robertson, Principal Member
J Connelly, Senior Member
LAND LAW---Strata title---Consent of owners corporation to the lodging of a development application to works affecting common property---s 232(6) Strata Schemes Management Act 2015---Mandatory considerations---Relevant considerations---Applicable principles
Judgment of
G Sarginson, Senior Member
K Ransome, Senior Member
ADMINISTRATIVE LAW - privacy - information protection principles - health information - jurisdiction - civil proceedings - “use” of information - “disclosure” of information - information already known - communication of information within agency ADMINISTRATIVE LAW - reviewable decision - conduct - correct and preferable decision - Civil and Administrative Tribunal
REVENUE LAW - State taxes - duties - first home buyer - exemption - residence requirement – time and pattern of occupation - location of personal items - location of home office - lifestyle of home buyer - evidence - proof - balance of probabilities REVENUE LAW - assessment - objection - appeal ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal
APPEALS — Adequacy of reasons – findings on material questions of fact – reasoning process APPEALS — Application of wrong principle - “copy access” and “view access”
Judgment of
Hennessy ADCJ, Deputy President
L Andelman, Senior Member
CIVIL PROCEDURE — protective jurisdiction — appeals from Guardianship Tribunal CIVIL PROCEDURE — time — extension of time APPEALS — from finding of fact — function of Appeal Panel
Judgment of
Hennessy ADCJ, Deputy President
A Britton, Deputy President
M Bolt, general member
ANTI-DISCRIMINATION – disability discrimination - goods and services – complaint resolution scheme – mental health condition – alleged denial of access to “coping mechanism” and failure to provide support
Judgment of
L Rogers, Senior Member
Dr J Green, General Member
BULIDING AND CONSTRUCTION – appeals on a question of law – whether the Tribunal erred in law in finding that the floorboards were installed without due care and skill by proceeding as if the content of the obligation of due care and skill was determined by the content of an installation guide for the floorboards - whether Tribunal erred in finding that builder’s expert made a concession at the Tribunal hearing
Judgment of
R C Titterton OAM, Senior Member
P H Molony, Senior Member
POWERS OF ATTORNEY — reviewable powers of attorney — enduring powers of attorney — whether the Tribunal misapplied s 36(4) of the Powers of Attorney Act 2003 (NSW) APPEALS — findings of fact — whether finding that there was no evidence of “any misconduct mismanagement, maladministration or conflict of interests on the part of the attorneys” constitutes a factual error “unreasonably arrived at” APPEALS — whether to grant leave to appeal under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW)
Judgment of
A Britton, Deputy President
J T Kearney, Senior Member
Dr M Spencer, General Member
ADMINISTRATIVE LAW – appeal on a question of law – Security Industry Act 1997 (NSW) – application for security industry licence – whether conviction for perjury under s 703(1) of the Criminal Code 2002 (ACT) is a conviction for an offence involving “dishonesty” WORDS AND PHRASES – “an offence involving fraud, dishonesty or stealing”
Judgment of
Seiden SC DCJ, Deputy President
J Redfern, Senior Member
REAL PROPERTY – RETAIL LEASES – exercise of option to renew and lease then terminated by lessor - alleged breaches of covenant by lessor and lessee – security deposit