Administrative Law Quarterly - September 2023

Collecting and keeping deeds of release under the Privacy and Personal Information Protection Act 1998

NSW Self Insurance Corporation v EEH [2023] NSWCATAP 181

At first instance, the NSW Civil and Administrative Tribunal (NCAT) found that the appellant had breached ss. 8, 9 and 12 of the Privacy and Personal Information Protection Act 1998 (PPIP Act) by collecting and keeping a deed of release that settled, among other things, the respondent’s workers’ compensation claims against another NSW Government agency to the extent that the personal information in the deed did not relate to appellant’s workers’ compensation functions.

On appeal, the appellant submitted, among other things, that NCAT had misapplied various provisions of the PPIP Act denied it procedural fairness, made factual findings unsupported by the evidence, failed to consider the evidence and give adequate reasons and made material factual errors. The respondent did not participate in the proceedings.

The Appeal Panel considered that it was not appropriate to seek to sever parts of the deed as a deed is required to be read as a whole. Therefore, NCAT's findings, which were premised upon the ability of the deed to be severed so that only the parts relating to the appellant’s workers’ compensation functions were collected and/or retained, were clearly wrong. The Appeal Panel granted the appellant leave to appeal and allowed the appeal.

NSW Civil and Administrative Tribunal applies restrictive reading of exemption in the privacy legislation

Webb v iCare NSW [2023] NSWCATAD 230

The applicant submitted an access application under the Government Information (Public Access) Act 2009 (GIPA Act) 'on behalf of' a corporation. She sought personal information about third parties. The agency consulted with those third parties under s. 54 of the GIPA Act, which provides that an agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that the person may reasonably be expected to have concerns about the release of the information.

The third parties objected to the release of the information. The consultation, however, informed them of the natural person who had submitted the access application. The applicant made a privacy complaint that her information had been released to third parties, in breach of s. 18 of the Privacy and Personal Information Protection Act 1998 (PPIP Act).

The agency submitted that the consultation obligation 'reasonably contemplated', within the meaning of s. 25(b) of the PPIP Act, that the third parties would be informed of the natural person who was requesting their personal information through a corporation.

The NSW Civil and Administrative Tribunal (NCAT) rejected that argument, holding that it was not reasonably contemplated. In doing so, NCAT rejected the agency’s arguments that  appellate authority requires consideration of the 'subject matter' of the alternate law and that a consultation obligation contemplates that the third parties would be informed about the recipients of their information, because concerns about release of information will necessarily be different depending on the recipient. 

A provision of a deed can constitute 'lawful authorisation'

FNY v Commissioner of Police, NSW Police Force [2023] NSWCATAD 211

In this matter, the NSW Civil and Administrative Tribunal (NCAT) held that the agency’s disclosure of the applicant’s personal information, being information contained in a Deed of Release, to an agent acting for an insurer, did not contravene the Privacy and Personal Information Protection Act 1998 (PPIP Act) on the basis of the exceptions in s. 18(1)(a) (the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure) and s. 18(1)(b) (the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with s. 10, that information of that kind is usually disclosed to that other person or body). NCAT also found that the conduct was exempt from the operation of s. 18 by operation of s. 25(a) of the PPIP Act (the agency is lawfully authorised or required not to comply with the principle concerned) 'because the agency was lawfully authorised by clauses 5(b) and 6(c) of the Deed and by the Declaration and Authority signed by FNY to release the Deed to its insurer'.

NCAT also found that 'in the absence of any unauthorised disclosure of FNY’s personal information being established on the evidence, it is not open to NCAT to determine that there has been any contravention of s 12 of the PPIP Act by the agency'.

Structured costs order against repeat litigant of modest means

EJE v Department of Education (No. 2) [2023] NSWCATAD 177

The NSW Civil and Administrative Tribunal (NCAT) dismissed purported proceedings for review of a decision not to extend time to apply for a privacy internal review under the Privacy and Personal Information Protection Act 1998, finding that it had no jurisdiction to entertain that application. Following exchange of further submissions, the NCAT decided the Department’s application for costs on the papers.

The respondent submitted that the power under s. 60 of the Civil and Administrative Tribunal Act 2013 to make an order for costs was enlivened because there were 'special circumstances' justifying an award of costs, relying on EJE’s history of past unsuccessful privacy applications and the fact that EJE had clearly been put on notice of the deficiencies in her application. EJE submitted that she had done nothing wrong in filing the application and sought to reopen some of the matters raised in the substantive proceedings. She relied on the fact that she was a person of limited means, stating that she could only pay $20 of costs a week.

NCAT accepted that the institution of these proceedings was sufficient to constitute 'special circumstances' to enliven the power to award costs. It did not consider that the past litigation history was relevant to 'special circumstances' but did take it into account in deciding whether to make an award of costs in its discretion. It accepted the Department’s submission that impecuniosity was not relevant to the decision whether to award costs but took it into account in the form of costs order made and ordered EJE to pay a fixed amount of $2,500 (being the full sum sought), to be paid in instalments of not less than $87 per calendar month. 

Disclosure of information would place agency at competitive disadvantage and diminish competitive, commercial value

Webb v Port Stephens Council [2023] NSWCATAP 133

The appellant appealed the decision in Webb v Port Stephens Council [2022] NSWCATAD 404, in which the NSW Civil and Administrative Tribunal (NCAT) affirmed the decision of Port Stephens Council to refuse access to certain training material that had been prepared by the Crown Solicitor’s Office (CSO). The CSO exercised the right to appear and be heard at first instance as a person who could be aggrieved by NCAT's decision on review and was joined as a party to the appeal.

The appellant raised multiple grounds of appeal, arguing that NCAT erred in various ways. Against this, the respondents (Port Stephens Council and the CSO) argued that the appellant had not raised any questions of law or identified any other matter that would warrant interference with the NCAT's decision at first instance.

The Appeal Panel dismissed each of the appellant’s grounds of appeal. Significantly, the Appeal Panel found that there was no error of law arising from NCAT's findings that disclosure of the training materials would place the CSO at a competitive disadvantage, diminish the competitive commercial value of the information and prejudice the business interests of the CSO.

Adequacy of the NSW Civil and Administrative Tribunal's reasons may turn on the nature of the evidence before it and the implied findings that can be assumed

Commissioner of Police (COP), NSW Police Force v DYD [2023] NSWCATAP 244

At first instance, after reviewing the appellant’s decision under the Government Information (Public) Access Act 2009, the NSW Civil and Administrative Tribunal (NCAT) ordered the appellant to release some entries relating to certain COPS reverse audit reports and COPS reasons for access audit reports as it was not satisfied that the information contained in those entries was subject to an overriding public interest against disclosure.

The appellant submitted that NCAT had not provided adequate reasons for the distinction it drew between the entries in the COPS reverse audit reports and COPS reasons for access audit reports and that its decision with respect to the entries ordered to be released was legally unreasonable as there was no evidence to support the distinction drawn. The respondent submitted that the appellant’s appeal grounds did not raise 'questions of law' and that the appellant’s reply submissions should be struck out.

The Appeal Panel upheld the appellant’s appeal on the basis that NCAT had not explained in its reasons why NCAT rejected the appellant’s evidence for some entries but accepted the evidence for other entries and remitted the matter to NCAT differently constituted for reconsideration. Until authoritatively determined by NSW courts, the Appeal Panel will follow the orthodox view of the Appeal Panel that the question as to whether or not a Tribunal’s reasons are adequate is a question of law and, therefore, leave to appeal is not required under s. 80 of the Civil and Administrative Tribunal Act 2013.

No denial of procedural fairness arising from appellant’s own conduct

Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 206

The appellant appealed the decision in Zonnevylle v Secretary, Department of Education [2022] NSWCATAD 187, in which NSW Civil and Administrative Tribunal (NCAT) affirmed the respondent’s determination to refuse access to certain information and that no further information was held. The appeal proceedings took a protracted course, as addressed by the Appeal Panel in its reasons.

The Appeal Panel considered the grounds of appeal raised by the appellant could be aptly summarised as 'lengthy unconstructed assertions and misconceptions' (adopting the language of the Court of Appeal in Mendonca v Legal Services Commissioner [2020] NSWCAT 84). However, as the appellant was not legally represented, the Appeal Panel sought to give a beneficial construction to the appellant’s grounds of appeal and submissions. One complaint of the appellant was that NCAT had failed to afford procedural fairness as he had not been given the opportunity to cross-examine a witness.

The Appeal Panel found that the appellant had, in fact, been given an opportunity to cross-examine the witness at the hearing: she was available and could have been cross-examined had the appellant availed himself to this opportunity. Having reviewed the transcript, the Appeal Panel concluded that it was the appellant’s voluntary withdrawal from the hearing (which was conducted by telephone) that prevented the cross-examination so that there was no denial of procedural fairness.

Application of cl. 3(g) of the Table to s. 14 of the Government Information (Public) Access Act 2009

Commissioner of Police, NSW Police Force v DYD [2023] NSWCATAP 212

After the Appeal Panel had determined that the NSW Civil and Administrative Tribunal (NCAT) had adopted an unduly narrow construction of cl. 3(g) of the Table to s. 14 of the Government Information (Public) Access Act 2009 (GIPA Act), which provides that there is a public interest consideration against disclosure of personal information about a child that could reasonably be expected not to be in the best interests of the child to have disclosed, and directed NCAT, as previously constituted, to reconsider its decision ordering the release of the information to which the appellant had contended cl. 3(g) applied, the Tribunal ordered the appellant to release the information as it did not consider that cl. 3(g) applied or that the information was otherwise subject to an overriding public interest against disclosure. 

On appeal, the appellant submitted that NCAT's determinations that cl. 3(g) did not apply to the information and the information was not subject to an overriding public interest against disclosure were legally unreasonable, those determinations were not the subject of adequate reasons and the Tribunal misapplied the public interest by not attributing individual weight to each applicable public interest consideration.

The Appeal Panel allowed the appeal on the basis that the Tribunal had not provided adequate reasons for departing from its original decision that cl. 3(g) applied to some of the information, which was substantially similar to the other information to which cl. 3(g) was held to apply. The Appeal Panel proceeded to reconsider the matter itself and determine that cl. 3(g) applied to the information and the information was subject to an overriding public interest against disclosure. Accordingly, the correct and preferable decision was to affirm the appellant’s decision to refuse to provide the respondent with access to the information.

Redacted police event report, information withheld

Salfus v Commissioner of Police, NSW Police Force [2023] NSWCATAD 237

The proceedings arose out of an access application made under the Government Information (Public) Access Act 2009 (GIPA Act) seeking information relating to a police event form, including an initial report filed with police by a member of the public. A subsequent internal review, later varied, affirmed that decision, with the ‘public interest’ test weighing against disclosure on account of the confidential nature of the redacted information as well as the applicant’s personal motivations.

The applicant disputed the redacted information within a particular report form, principally on the basis that, because he was the subject of the allegations contained within the form, a presumption of confidentiality did not arise and his personal interest in disclosure should be given significant weight in applying the public interest test under s. 13. The respondent relied on various public interest considerations against disclosure in s. 14 of the GIPA Act, including that disclosure would prejudice the supply of confidential information to (cl. 1d), and the effective exercise of functions (cl. 1f) by the agency.

The NSW Civil and Administrative Tribunal affirmed the respondent’s decision, finding that the public interest considerations weighing against disclosure outweighed those in favour of the disclosure of redacted information contained within a police event form. The case is an orthodox application of principles in this area. 

Nothing to see here 

Larsen & Larsen v Department of Planning & Environment [2023] NSWCATAD 222

In an access application made under the Government Information (Public) Access Act 2009, the applicants sought access to Ministerial briefs prepared by the Department relating to their business at Katoomba Airfield during a particular period. The Department decided that it held no information responsive to the access application because it provided no such brief in the relevant period. The applicants sought administrative review of that decision. 

The Department relied on the evidence of its Director of the Office of Deputy Secretary, Crown Lands whose evidence was to the effect that any brief that had been provided would have passed through him, but that his searches had not turned up any responsive brief. The Tribunal accepted the Director’s evidence and affirmed the decision under review. 

Refusing access to confidential information supplied to police

Agardy v Commissioner of Police, NSW Police Force [2023] NSWCATAD 201

The applicant sought access under the Government Information (Public) Access Act 2009, to complete copies of records documenting complaints that had been made about her in the context of an ongoing neighbourhood dispute. The respondent provided partial access to the information requested, redacting those parts of the records that revealed information that had been supplied to the respondent by individuals other than the applicant.

Before the NSW Civil and Administrative Tribunal (NCAT), the respondent argued that there was an overriding public interest against disclosure of the redacted information on the bases that: disclosure could reasonably be expected to prejudice the supply of confidential information necessary for the exercise of its functions; disclosure would prejudice its investigative and law enforcement functions; and, disclosure would reveal personal information (that is, invoking the public interest considerations against disclosure at cll. 1(d), (f) and 3(a) and (b)).

NCAT accepted that each of the public interest considerations applied and that there was an overriding public interest against disclosure of the personal information and details of the complaint which had been redacted from the records. It accorded significant weight to the considerations against disclosure, noting the likelihood of prejudice to police functions having a serious effect beyond the ambit of the applicant’s dispute. 

Court of Appeal determines that Personal Injury Commission exercises administrative power

Kanajenahalli v State of New South Wales (Western New South Wales Local Health District) [2023] NSWCA 202

In this matter, the Court of Appeal held that, where the Personal Injury Commission (the Commission) is resolving issues under s. 11A of the Workers Compensation Act 1987, which provides that no compensation is payable under that Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to certain workplace decisions, it is exercising administrative power. Thus, the constitutional prohibition against a state tribunal exercising federal judicial power did not apply.

It was common ground that the Commission is not a court of a state and that the Western NSW Local Health District is the state for the purposes of s. 75(iv) of the Constitution (Cth). The Attorney General submitted that the Commission was exercising administrative power.

The Court held that the determinative feature in the characterisation of the functions is the particular dispute between the parties. More general considerations do not all point in the same direction. Thus, although its decisions are final and binding, the Commission is empowered to 'reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division' and 'rescind, alter or amend any decision previously made or given by the Commission in that Division': Personal Injury Commission Act 2020 (PIC Act), ss. 56 and 57. In addition, the certificate of the Commission may be filed in a court and will thereafter operate as a judgment: PIC Act, s. 59. However, where the only issue was that arising  under s. 11A, the Commission was exercising administrative power.

The NSW Civil and Administrative Tribunal's power to award damages under s. 55(2)(a), Privacy and Personal Information Protection Act 1998 – judicial power by operation of s. 78 Civil and Administrative Tribunal Act 2013

Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 

The applicant resided interstate and commenced various proceedings in the NSW Civil and Administrative Tribunal (NCAT) seeking review of decisions under s. 80 of the Government Information (Public Access) Act 2009 (GIPA Act). She also commenced privacy review proceedings seeking damages from the Commissioner of NSW Police pursuant to s. 55(2)(a) of the Privacy and Personal Information Protection Act 1998 (PPIP Act).

The applicant argued that NCAT did not have jurisdiction to determine any of the proceedings because NCAT was exercising federal judicial power.

The Court held that NCAT exercises administrative power under the GIPA Act. However, the Court upheld the applicant’s challenge with regard to claims for damages pursuant to s. 55(2)(a) of the PPIP Act. Because an order under s. 55(2)(a) may be certified by a Registrar pursuant to s. 78 of the Civil and Administrative Tribunal Act 2013 and, if registered with a court, is enforceable as a judgment of that court, the Court held that the function was judicial.

The State has sought leave to appeal to the High Court with respect that part of the judgment which concerns the PPIP Act.

Court of Appeal finds that s. 48, Interpretation Act does not imply a power of revocation in statutory functions

Independent Liquor & Gaming Authority (ILGA) v 4 Boys (NSW) Pty Ltd [2023] NSWCA 210

4 Boys (NSW) Pty Ltd, the owner of the Seaview Tavern, applied for an increase to the gaming machine threshold (GMT) of the Seaview Tavern from 20 to 24, which was approved by the Independent Liquor and Gaming Authority (ILGA) on the condition that it make a contribution by way of a community benefit payment to the responsible gambling fund. 4 Boys then acquired the Coutts Crossing Tavern hotel and sought to transfer gaming machine entitlements (GMEs) from that hotel to the Seaview Tavern. It made two applications to that effect, which were approved by the ILGA. The effect of those decisions was that Seaview Tavern had a GME and GMT of 27 and the Coutts Crossing Tavern had a GME and GMT of zero.

Subsequently, 4 Boys requested that, instead of the arrangement described above, the GMT for the Seaview Tavern be reduced from 24 to 20 and approval be given to transfer 7 GMEs from Coutts Crossing Tavern to the Seaview Tavern. It was proposed that the condition of the community benefit payment would no longer apply (by utilising the exceptions for transfers of country hotel GMEs contained in s. 20A). ILGA treated this request as involving a request to revoke its earlier decision and refused the proposal on the basis, inter alia, that it did not have power to revoke its earlier approval.

At first instance, the primary judge (Adamson JA) found that ILGA did have power to revoke its earlier approval, following the authority of Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332. ILGA appealed on two bases:

1. Whether s. 48(1) of the Interpretation Act 1987 confers a power to revoke a previous decision made under a statutory power (the primary judge had found that it did). 
2. In the alternative, whether the Gaming Machines Act 2001 (GM Act) evinces a contrary intention to displace any implication arising under s. 48(1) of the Interpretation Act (the primary judge had found that it did not).

The Courts held that:

• following the decision in Minister for Indigenous Affairs v MJD Foundation Ltd (2017) 250 FCR 31, s. 48(1) of the Interpretation Act does not imply, into every function to which it applies, a power to revoke a previous exercise of that function. The Court emphasised that a function or power may be exercised again, but there is a difference between a fresh exercise of power (which may have the effect of ‘reversing’ an earlier exercise of the power), and a power to revoke, that is, to rescind, an earlier exercise of the power
• in the alternative to 1, that is, even if s. 48(1) of the Interpretation Act did imply a power to revoke, the GM Act manifests a contrary intention to the implication of a power to revoke because, once those decisions are made, there are other consequences in the statutory scheme which follow and could not be revoked. 

Mistaken understanding of material actually before a decision-maker is an error of fact, not law

Yenuga v Attorney General (NSW) [2023] NSWCA 227

In judicial review proceedings, the applicant alleged that Button J’s refusal of his application for an inquiry into his convictions under Pt 7 of the Crimes (Appeal and Review) Act 2001 (CAR Act) was infected by jurisdictional error (and possibly error of law on the face of the record): by reason of his Honour engaging in reasoning that was unreasonable; by denying the applicant procedural fairness; and, by taking into account an irrelevant consideration; and/or by failing to understand the proper scope of his statutory functions under Pt 7 of the CAR Act. The submissions made by the applicant were 'discursive' and 'difficult to understand' and, at times, impugned proceedings involving appeals from his convictions, rather than the decision made by Button J.          

The Court of Appeal dismissed each of the applicant’s grounds. It found that Button J had not engaged in reasoning that was unreasonable, nor had his Honour taken into account an irrelevant consideration or failed to understand the scope of his statutory functions. Whilst Button J had mistaken what material was before him, in stating there was no complete transcript of criminal proceedings provided to him when in fact there was, the Court found that this did not amount to any error of law and, in any event, any error (if it did amount to one of law or one involving a denial of procedural fairness) was immaterial in circumstances where the applicant had extensively extracted the transcript of proceedings in submissions made to Button J. 

Application of the 'de minimis' presumption of statutory interpretation

Sydney Metro v Expandamesh Pty Ltd [2023] NSWCA 200

Sydney Metro appealed from a decision of the Land and Environment Court which found that Expandamesh Pty Ltd was entitled to compensation for the compulsory acquisition of substratum under its land to construct tunnels serving Metro projects. The effect of s. 98 and cl. 2 of Sch 6B to the Transport Administration Act 1988 (TA Act) is to preclude the payment of compensation under the Land Acquisition (Just Terms Compensation) Act 1991 (LA(JTC) Act) arising from the acquisition of sub-surface land for the purpose of underground rail infrastructure facilities unless one of the conditions in cl. 2(1) is satisfied. One of those conditions, cl. 2(1)(a), is that the 'surface of the overlying soil is disturbed'.

The primary judge found that the subsidence caused by the construction of tunnels was at least 1.5mm or modestly greater in magnitude and that this level of subsidence was sufficient to enable Expandamesh to make a claim under the LA(JTC) Act. Metro’s first ground of appeal was that the primary judge erred in so construing cl. 2(1)(a) of Sch 6B to the TA Act.

The Court of Appeal upheld Metro’s first ground of appeal, finding that the ordinary meaning of 'disturbed' did not extend to an impact that was trivial or of no practical significance. The Court had regard to the 'de minimis' presumption of statutory interpretation that, unless a contrary intention appears, the law should be interpreted so as not to apply to trifling matters.

Regard was also had to conditions in mining leases by way of analogy and the interpretation of 'disturbance' in Li v Chief of Army (2013) 250 CLR 328, in which the High Court held that disturbance in the relevant statute meant a 'non-trivial interruption of order'. The Court found that subsidence that is imperceptible to the occupiers and causes no damage would prima facie answer the description of de minimis, noting that how surface land is being used will affect whether a small subsidence is to be regarded as too trivial to enliven cl. 2(1)(a).

The Court found that the purpose of cl. 2(1)(a) was to narrow the circumstances in which compensation was payable, which sat uncomfortably with the submission by Expandamesh that the provision should be construed so as to protect private property rights.

Minister’s recovery power not subject to time limit 

Malek Fahd Islamic School Limited v Minister for Education and Early Learning [2023] NSWCA 143

The Malek Fahd Islamic School appealed from the Supreme Court decision below refusing its application for judicial review of the Minister’s decision under s. 83J(3)(b) of the Education Act 1900 to recover around $11m in financial assistance provided in 2014 and 2015 by reducing amounts of future assistance. It was not in dispute that the school had operated 'for profit' and was a 'non-compliant school' in the relevant time period, and so was ineligible for the funding it had received.

The issues on appeal were (a) whether the Limitation Act 1969 limited the Minister’s power under s. 83J(3)(b) to recover amounts of financial assistance paid to ineligible non-government schools by reducing future assistance; and (b) if it did, the date on which the relevant cause of action to recover those amounts arose.

The Court accepted that steps taken by the Minister under s. 83J(3)(b) to recover financial assistance by reducing future assistance did not themselves fall within s. 14(1) of the Limitation Act, because that means of recovery was not an 'action' on a cause of action. Construed in its context, that word was intended to refer to proceedings in a court.

The Court rejected the school’s submission (and the primary judge’s finding) that, even if steps taken under s. 83J(3)(b) did not fall within s. 14(1) of the Limitation Act, that Act did apply to the alternative recovery power in s. 83J(3)(a) to recover an amount 'as a debt in a court of competent jurisdiction', and that, once that debt was extinguished by the relevant limitation period, there was no longer any amount that could be recovered by reduction of future assistance under s. 83J(3)(b). The Court considered authorities dealing with statutory schemes for recovery of money by or from public authorities and concluded that the recovery mechanism under s. 83J(3)(b) was dependent on the operation of the statutory scheme rather than the judicial system, and so operated to the exclusion of constraints which might apply to proceedings in a court. 

Court of Appeal allows appeal which confirms broad powers for the regulator under the Gaming Machines Act 2001 and Liquor Act 2007

Independent Liquor and Gaming Authority (ILGA) v Whitebull HTL Pty Ltd and Ors; [2023] NSWCA 224

In this matter, the Court of Appeal was required to determine the proper scope of the discretions exercised by the Independent Liquor and Gaming Authority (ILGA) pursuant to ss. 19, 25 and 34 of the Gaming Machines Act 2001 (GM Act) and s. 35 of the Liquor Act 2007.

The primary judge had accepted the respondents’ contention that such discretions did not extend to considering harm minimisation as this is exhaustively addressed in other provisions under Pt 4 of the GM Act. The primary judge had also held that ILGA cannot impose conditions directed to gaming machines under s. 53 of the Liquor Act.

On appeal, the Court of Appeal held that ILGA's powers to approve transfers or leases of gaming machine entitlements (GMEs) and increase gaming machine thresholds (GMTs) provided for by ss. 19, 25 and 34 of the GM Act respectively are discretionary powers. A permissible criterion for the exercise of those discretions was the impact of the community.

Furthermore, while the GM Act creates a detailed regime of regulation, the GM Act and Liquor Act are ‘intimately linked,’ notably in that only two types of licensee under the Liquor Act may operate gaming machines under the GM Act, and that GMEs attach to liquor licences. The Court rejected the argument, accepted below, that the GM Act contains a negative implication that the subject matter of the GM Act could not be the subject of conditions under separate legislation.  

Scope of the regulation making power in the Protection of the Environment Operations Act 1997 (POEO Act)

The Next Generation (NSW) Pty Ltd v State of New South Wales [2023] NSWCA 159

Next Generation (NSW) Pty Ltd commenced Class 1 proceedings in the Land and Environment Court challenging a decision to refuse its application for State Significant Development to build an energy from waste facility. Next Generation commenced Class 4 proceedings challenging the validity of Pt 4 of Chapter 9 of Protection of the Environment Operations (General) Regulation 2022, which prohibited the development, based on alleged inconsistency with the Protection of the Environment Operations Act 1997 (POEO Act) and the Environmental Planning and Assessment Act 1979 (EP&A Act). The primary judge, Preston CJ, dismissed the Class 4 proceedings finding that the inconsistencies either didn’t arise or could be construed so as to avoid inconsistency.

On appeal, Next Generation submitted that the primary judge erred in finding that the Regulation was not inconsistent with ss. 43 and 48 of the POEO Act and that the inconsistency with s. 4.42(1) of the EP&A Act could be resolved through statutory construction. It submitted that the matters listed in cl. 5 of Sch. 6 to the POEO Act should be construed individually.                  

The Court of Appeal accepted the State’s submissions that: the matters listed in cl. 5 of Sch. 6 to the POEO Act are overlapping and should not be construed as limiting one another; cl. 5(6) of the POEO Act provides power to make regulations prohibiting and regulating the processing of waste, including the thermal treatment of waste; and, the Regulation was authorised by s. 323(1) of the POEO Act and was not inconsistent with Chap 3 of the POEO Act.

Can you limit the unlimited? Supreme Court considers whether to make recovery orders under the parens patriae jurisdiction 

Re Emma [2023] NSWSC 1088

In these proceedings, the Secretary, Department of Communities and Justice, sought what is commonly referred to as a ‘recovery order’. Recovery orders were historically made by the Supreme Court under its cross-vested jurisdiction. In Re Neil (No 5) (2022) 110 NSWLR 197, the Court noted that amendments made to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) to facilitate the formation of the Federal Circuit and Family Court of Australia had inadvertently removed the Supreme Court’s cross-vested jurisdiction to make certain orders, including recovery orders, under the Family Law Act 1975 (Cth). The Court approved a process under which proceedings for recovery orders could be instituted in a Local Court and then removed to the Supreme Court for determination.

The Secretary submitted that the Court had the power to make recovery orders under its parens patriae jurisdiction without the artifice of first commencing proceedings in a Local Court.

The Court made the orders as sought by the Secretary under the parens patriae jurisdiction holding that the parens patriae jurisdiction is 'practically unlimited' and 'this Court must be taken to have jurisdiction to make recovery orders unless that jurisdiction can be shown to be excluded by some paramount power'. It found that none of the authorities which had previously expressed doubt about the scope of the parens patriae jurisdiction to make recovery orders had explained why a jurisdiction that is said to be unlimited is in fact limited in that respect. It determined that the powers being granted to police under the recovery order should be treated as an authorisation for officers to provide police services to Emma, as contemplated by s. 6 of the Police Act 1990 , even if she was not acting in a manner that would ordinarily justify the police officers in detaining her or limiting her freedom.

Implied power of the Local Court 

The Commissioner of Police v Gregory John Walker [2023] NSWSC 539

To mitigate the risks to certain witnesses, the Commissioner of Police sought orders in the Local Court allowing the accused to view, but not retain, parts of the brief of evidence. A magistrate found that this was beyond the power of the Local Court.

The Commissioner sought judicial review of the magistrate’s decision. The issue on appeal was whether s. 61 of the Criminal Procedure Act 1986 (CP Act), which requires a brief to be served on an accused, fettered the power of the Local Court to make an order restricting the accused’s ability to retain parts of that brief (a Restricted Retention Order (RRO)). That requirement is subject to 'any other law or obligation' (s. 61(2)).                  

The Supreme Court held that s. 61 would be satisfied by service of the brief on an accused’s legal representative and there was 'no unqualified or absolute ‘right’ under the CP Act for the accused to have the whole brief with them at all times'. It accepted the Commissioner’s submission that 'obligation' could extend to an equitable obligation of confidence, where the identity of certain witnesses was confidential from persons beyond the accused. In the context of criminal prosecutions investigated and prosecuted on behalf of the community, the obligation inheres in the ability of the police to investigate serious crime fearlessly without the concern that a potential witness would be intimidated and dissuaded from giving evidence in the public interest.

The Court noted that, once such an obligation was found, it was clear that a balancing of the various competing public policy considerations would need to be undertaken in determining whether an RRO should be made in a particular instance. Such a balancing exercise was undertaken by magistrates regularly. It also noted that, while the context was different, it was apparent from HT v The Queen (2019) 269 CLR 403 that tailoring orders have been recognised as being able to provide case-specific flexibility where appropriate. This has provided helpful clarity post-HT about the availability of tailored orders and the power of an inferior court to make them. 

Adopting a ‘fine tooth comb’? Judicial review of State Parole Authority Decisions

McDonald v State Parole Authority of New South Wales [2023] NSWSC 1072

The plaintiff sought judicial review of two decisions by the State Parole Authority to refuse parole. At the time of the Authority’s review, the plaintiff had outstanding charges and the Authority adjourned its review to seek a Community Corrections Officer’s report concerning the charges. The plaintiff had previously been refused parole on the basis of other outstanding charges.

The plaintiff sought orders in the nature of certiorari quashing the Authority’s decisions and sought an order in the nature of mandamus requiring that his application be heard and determined according to law. The plaintiff relied on two grounds.

First, the defendant fell into jurisdictional error and/or error of law on the face of the record by: failing to take into account a relevant consideration, namely, the provisions of cl. 223(1) of the Crimes (Administration of Sentences) Regulation 2014; and making a finding for which there was no evidence, namely, that the plaintiff had not sought to identify the provisions of cl. 223 of the Regulation upon which he relied in seeking parole consideration; and (c) acting unreasonably and/or irrationally.

Secondly, the defendant constructively failed to exercise its jurisdiction by: failing to take into account a relevant consideration, namely, the ground for the plaintiff's application, which relied on cl. 223(1)(b) and (c) of the Regulation and the fact that the outstanding charges forming the basis of the defendant's decision to refuse the plaintiff parole had been finally resolved, including by the plaintiff having served the relevant sentence; taking into account an irrelevant consideration, namely, the separate provision in the Crimes (Administration of Sentences) Act for 'anniversary consideration' of an offender’s eligibility for parole, should they make an application to be released on parole in accordance with s. 137A, of the Act; and acting unreasonably and/or irrationally.

The Court dismissed both grounds, confirming that 'it is important when considering the ‘reasons’ of a body such as the Parole Authority that the court not adopt a ‘"fine tooth comb" approach to its published reasons' and that the delay was not unreasonable, given the time necessary for a Community Corrections Officer’s report to be prepared. In addition, the Court held that the time limits in s. 137A of the Act do not prohibit the Authority from considering that matter, particularly in this case when that date was approaching. 

Exemptions from land tax: applicable to the parcel or the lot?

Mourched v Chief Commissioner of State Revenue [2023] NSWSC 668

This was an appeal to the Supreme Court by the plaintiff taxpayers from a decision of the Appeal Panel concerning the application of the childcare centre exemption in s. 10(1)(u) of the Land Tax Management Act 1956 to a property owned by the plaintiffs in Leppington. The subject property consisted of two parcels of land: Parcel A at the front of the property on which a childcare centre was situated and Parcel B, situated at the rear of the property which contained an underground septic system used for the childcare centre located on Parcel A. It was not in dispute that the childcare exemption applied to Parcel A.

The key question was whether the Chief Commissioner correctly assessed Parcel B by reference to the parcel identified in the Valuer-General’s Register as opposed to by reference to the whole of the lot making up the two parcels. 

The Court confirmed that land tax may be assessed on, and an exemption may apply to, a parcel of land contained in the Valuer General’s Register even though it is less than a single lot of land. It also held that, if it is established that Parcel B is only used for the septic system, it is entitled to an exemption under s. 10(1)(u) because of its connection with the building on Parcel A.     

Section 47 of the Government Sector Employment Act  2013 does not confer a contractual right to re-employment 

Paulson v State of New South Wales [2023] NSWDC 251

The plaintiff was a former employee of the Department of Communities and Justice whose employment was terminated following a finding of misconduct. The Industrial Relations Commission (IRC) found that the decision to terminate his employment was harsh but refused to order reinstatement or re-employment. The plaintiff then sued the State of NSW for breach of his employment contract due to the State’s failure to re-employ him following the IRC proceedings.

The plaintiff submitted that s. 47 of the Government Sector Employment Act  2013 (GSE Act) implied that the State would comply with s. 47 and that it could not terminate his employment contract except in accordance with s. 47. He argued that the State had breached these terms and that the terms required the State to re-employ him after the IRC had found the termination decision to be harsh. The State sought summary dismissal of the proceedings on the basis that s. 47 of the GSE Act does not give rise to the implied contractual terms and that the claim was statute barred.

The Court accepted the State’s submissions and stuck out the Statement of Claim, finding that the terms were not implied and that the claim was statute barred. 

Application to review expired public health orders 'lacking in substance'

Davis v NSW Minister for Health [2023] NSWCATAP 211

Ms Davis is a nurse who was subject to a Ministerial direction to be vaccinated in order to keep working. That direction was embodied in four successive public health orders made under s. 7 of the Public Health Act 2010. Ms Davis sought administrative review of those orders.

After an initial dispute at first instance and on appeal about the permissible scope of review, the last of the four public health orders had expired. The Minister sought, and obtained, an order for summary dismissal, on the basis that the proceedings lacked practical utility, where the orders no longer affected Ms Davis, and were therefore 'lacking in substance' within the meaning of s. 55(1)(b) of the Civil and Administrative Tribunal Act 2013. Ms Davis appealed from the summary dismissal order.

Ms Davis contended that the finding that the proceedings lacked practical utility was insufficient to warrant dismissing the proceedings on the basis that they were 'lacking in substance'. She also alleged the NSW Civil and Administrative Tribunal (NCAT) had made errors in fact-finding and in the factors it had weighed in its discretionary decision. The Minister argued that NCAT's decision was correct for the reasons it had given.

The Appeal Panel refused leave to appeal, concurring with NCAT's reasons. Significantly, it found that an absence of practical utility could properly result in summary dismissal, as NCAT had found. 

Registration of former outlaw motorcycle gang president would undermine the Combat Sports Act 2013

Tukel v Combat Sports Authority [2023] NSWCATAD 180

The applicant, a former President of the Comanchero Motorcycle Club, sought administrative review of the decision of the Combat Sports Authority to refuse to register him as an industry participant in the class of trainer or second in professional and amateur boxing.                 

The Authority submitted that the Combat Sports Act 2013 (CS Act) was directed at removing criminal elements from the combat sport industry and that registration of the applicant would undermine the objects of the CS Act given his former position in, and continued association with, the Comancheros and his multiple breaches of the CS Act.                   

The NSW Civil and Administrative Tribunal accepted the Authority’s submissions, finding that the CS Act is focused on preventing the involvement of criminal elements and illegal activity in the combat sport industry. It also accepted the Authority’s submissions about the applicant’s involvement in organised crime and found that he had knowingly breached the CS Act. NCAT held that he is not a fit and proper person to be registered and affirmed the Authority’s decision. This is only the second decision to consider the fit and proper person test in the context of the CS Act. 

NSW Civil and Administrative Tribunal finds applicant fit, in the public interest, to possess a firearm despite prior association with alleged terrorist

Ferkh v Commissioner of Police, NSW Police Force [2023] NSWCATAD 231

The applicant was an associate of Joseph Saadieh, who has been charged with being a member of the Islamic State of Iraq and Syria (IS). Mr Saadieh is currently awaiting trial. The applicant ceased his association with Mr Saadieh following his arrest. Prior to that, the applicant maintained a friendship with Mr Saadieh for approximately three years. During that period, the applicant received extremist material from Mr Saadieh and another associate. Following Mr Saadieh’s arrest, the Commissioner of Police made a firearms prohibition order against the applicant.              

The applicant submitted that his decision to maintain a friendship with Mr Saadieh (despite being aware of Mr Saadieh’s support for IS) was driven by his desire to 'deradicalise' him. The Commissioner argued that there was a real risk that the applicant had displayed sympathy for and endorsed the ideology of IS by his positive responses to the extremist material he had received. The Commissioner further submitted that the applicant’s decision to foster a relationship with Mr Saadieh, despite knowing of his extremist views, constituted a risk to public safety in circumstances where IS encourages supporters to attack members of the public, including in Australia.               

The NSW Civil and Administrative Tribunal (NCAT) accepted the applicant’s explanations for his past conduct, including his association with Mr Saadieh and his responses to the extremist material. In particular, NCAT accepted that the applicant was seeking to deradicalise Mr Saadieh and noted that the applicant no longer associates with him. NCAT found that the applicant’s level of association with criminal elements was tenuous and did not pose a real and appreciable risk to public safety. NCAT also considered that there was 'little practical difference between the test for a Firearm Prohibition Order (FPO) and that for a general [firearms] licence' on the basis that both tests involve consideration of the public interest.

This is the first decision to consider the test for an FPO in relation to a person who is alleged to be supportive of a terrorist organisation.             

Revisiting fitness and propriety in firearms licensing appeals

Chaaban v Commissioner of Police [2023] NSWCATAD 93

The applicant sought administrative review of the Commissioner of Police's decision under the Firearms Act 1996 to refuse to grant the applicant a Category AB firearms licence.                

The Commissioner contended that the applicant was not a fit and proper person to hold a firearms licence, that the applicant may not personally exercise continuous and responsible control over firearms because of his domestic circumstances, and that the issue of the licence would be contrary to the public interest. The Commissioner relied upon allegations of criminal conduct against the applicant (though he had not been convicted of any offences), the criminal conduct of the applicant’s associates, and the applicant’s history of misleading police including on his application for a firearms licence.

The applicant asserted that he no longer associated with criminals after being made aware of their criminality, denied any criminal wrongdoing and denied intentionally misleading police on any occasion.                 

The NSW Civil and Administrative Tribunal (NCAT) accepted the Commissioner’s submissions, finding that the applicant had a history of violent behaviour, a disrespect for authority, and was at risk of being pressured to provide firearms to criminal associates.  This led NCAT to conclude that the applicant was not a fit and proper person to possess firearms without danger to public safety and affirmed the Commissioner’s decision under review.

Previous convictions for dishonesty offences grounds to deny an National Disability Insurance Scheme worker check clearance

Olunwabusor v Children’s Guardian [2023] NSWCATAD 199

The applicant sought administrative review of the Children’s Guardian’s decision on internal review to affirm the decision to refuse to grant his application for a National Disability Insurance Scheme (NDIS) worker check clearance. In refusing his clearance, the Children’s Guardian placed weight on the applicant’s criminal history, which included convictions for participating in a syndicate which issued false invoices purportedly from legitimate businesses and laundered the collected funds through a variety of bank accounts and other means.                 

The Children’s Guardian submitted that the applicant posed a risk of harm to persons with disability because of the nature of his offending, which involved exploiting others’ personal and financial information for his benefit. In particular, the applicant’s actions demonstrated a risk to the financial, psychological and emotional well-being of NDIS participants.

The NSW Civil and Administrative Tribunal (NCAT) agreed with the Children’s Guardian’s submissions, deciding there was a real and appreciable risk of harm to people with disability. NCAT relevantly noted that NDIS work is likely to present opportunity for organised financial criminal activity as NDIS participants are less capable that the general public in detecting and protecting themselves from financial abuse. The Children’s Guardian’s decision was affirmed.

Untested allegations and risk to the safety of children

DVR v Children’s Guardian [2023] NSWCATAD 240

The Children’s Guardian refused to issue DVR with a Working with Children Check (WWCC) under the Child Protection (Working with Children) Act 2012 (WWC Act) because he had been alleged to have engaged in sexual activity with two unrelated teenage girls. One of the allegations was made by a girl who DVR had conveyed home whilst on duty as a police officer. DVR had collected the girl in the early hours of the morning, intoxicated and partially clothed. These allegations led the Professional Standards Command to recommend DVR’s dismissal from the NSW Police Force. The girl’s allegations have never been cross-examined or tested by DVR in any curial or quasi-curial setting.

The NSW Civil and Administrative Tribunal (NCAT) affirmed the decision made by the Children’s Guardian to refuse DVR a WWCC. It said it was required to do so after finding that DVR posed a real and appreciable risk to the safety of children. On its review of the evidence, NCAT found that there was a significant possibility each of the allegations made by the teenage girls were true, which gave rise to a risk to the safety of children.

Importantly, NCAT stated that it was not prevented from considering the girl’s allegation of sexual assault merely because her allegations had never been tested by DVR. Instead, NCAT found that it was open for it to consider the allegations without denying DVR procedural fairness, subject to consideration of other evidence accompanying the allegation and the amount of weight placed on the girl’s complaint.

Risk to children from domestic violence offending under the Child Protection (Working with Children) Act 2012

FPE v Children's Guardian [2023] NSWCATAD 204

FPE sought administrative review of the decision of the Children’s Guardian to refuse him a Working with Children Check (WWCC). FPE had numerous charges for domestic violence incidents involving his adult wife.                    

The Children’s Guardian submitted that the NSW Civil and Administrative Tribunal (NCAT) should find that FPE posed a real and appreciable risk to children in light of his recent and repeated domestic violence offending, lack of insight into his conduct, and the absence of sufficient evidence of rehabilitation. FPE submitted that his offending was on the lower end of objective seriousness, that he has made progress regarding his mental health, and that he is committed to rehabilitation.                  

NCAT considered that FPE’s behaviour was beyond reasonable community norms and, if repeated, would do significant harm. Although not all allegations had been proven in the Local Court, NCAT considered the reports were not inherently improbable or unbelievable. NCAT found that FPE did pose a risk to the safety of children. Accordingly, it held that the correct and preferable decision was to affirm the decision of the Children’s Guardian to refuse FPE a WWCC.

The decision provides useful guidance on the effect of domestic violence offending against adults on a perpetrator’s risk to the safety of children.

NSW Civil and Administrative Tribunal finds applicant does not pose a risk to the safety of children despite convictions for take/detain and drug offences

FMX v Children’s Guardian [2023] NSWCATAD 203

The applicant applied for an enabling order under s. 28 of the Child Protection (Working with Children) Act 2012 (the Act). He had committed several robberies in April and May 2002 where he and his co-offenders threatened victims with harm to induce them to hand over valuables. Two of the victims were 17 years old. Accordingly, the applicant was a disqualified person for the purposes of s. 28 of the Act.

In 2015, the applicant applied for a Working with Children Check, which the Children’s Guardian inadvertently granted. The applicant held the clearance for 8 years without incident.                 

Before the NSW Civil and Administrative Tribunal (NCAT), he submitted that NCAT would be comforted by the period during which he held a clearance without incident, that the likelihood of a decline in his mental health which would lead to reoffending was low, and that the improvement in his life and personal circumstances meant that he posed a very limited, if any, risk to the safety of children. The Children’s Guardian submitted that NCAT should have concern that he may relapse in terms of his mental health concerns and drug use.                 

NCAT was satisfied that the applicant displaced the presumption that he posed a risk to the safety of children. It considered the period during which he held a clearance without incident, the character references tendered and the lack of evidence of drug use or declining mental health for over 10 years. It considered that he was not specifically targeting children when he committed the disqualifying offences and that a reasonable person would allow him to have unsupervised access to their child. NCAT was satisfied that it was in the public interest for him to be granted a clearance. 

Risk to children from physical and psychological harm results in a refusal of a Working with Children Check 

FKZ v Children's Guardian [2023] NSWCATAD 169

The applicant sought administrative review of the decision of the Children’s Guardian to refuse her a Working with Children Check (WWCC). She had charges for indecent assault against a person under 16 years of age, and common assault against a minor. However, all charges were dismissed by the Paramatta Local Court prior to her application to the Guardian to reinstate her WWCC.

The Children’s Guardian submitted that there was a high likelihood of the applicant repeating her previous behaviour due to her consistent denials and her lack of insight into whether the alleged conduct caused harm or could cause harm.

The applicant submitted that she did not commit any of the alleged criminal charges laid against her and did not engage in alleged conduct the subject of investigations. In light of this, she argued that she did not present a risk to the safety of children, that a reasonable person would allow their child to have direct contact with her without supervision, and that it would be in the public interest to grant her a WWCC.

Although all charges were dismissed, the NSW Civil and Administrative Tribunal (NCAT) found that there was ‘a concerning pattern of repeated physical and psychological harm to very vulnerable children with a traumatic history’, with the applicant demonstrating no insight into whether her behaviour had inadvertently harmed children. Due to her lack of self-reflection, NCAT determined that it would be impossible to mitigate against the conduct being potentially repeated in the future. As such, NCAT found that she posed a real and appreciable risk to the safety of children.

Taxpayers not relieved from duties when reassessment is sought outside timeframe under s. 50 of the Duties Act 1997

Zhang v Chief Commissioner of State Revenue [2023] NSWCATAD 181

In December 2014, the applicant entered into a contract with a vendor to purchase a proposed strata lot for a retail shop in Bathurst Street, Sydney.  In June 2016, a duties notice of assessment was issued in respect of the contract for sale and the applicant paid the assessed duty.  In January 2019, the applicant and vendor entered into a deed of rescission which cancelled their initial contract and created a new contract with a trust company.  In October 2021, the applicant sought a refund of the duty paid for the initial contact; however, it was rejected as it was lodged more than 5 years after the assessment.                 

In the NSW Civil and Administrative Tribunal (NCAT), the applicant submitted that the initial contract qualified as a 'cancelled agreement' under s. 50(1) because of the execution of a deed of rescission. He further contended that one or more of the paragraphs (a), (b) or (c) to s. 50(1) applied, absolving him from the duty. The applicant argued that s. 50(1) operates to render the original assessment excessive after the execution of the deed of rescission.

The respondent accepted that the initial contract could be classified as a 'cancelled agreement' under s. 50(1) but disagreed with the applicant’s assertion that paragraphs (a), (b) or (c) applied. The respondent emphasised that the applicant bore the onus of proof and additionally argued that s. 50(2) was the relevant provision, requiring compliance with specific time limits for seeking a refund.                

NCAT held that the application of s. 50(1) did not render the assessment excessive and noted that s. 50(2) provided the appropriate mechanism for refunds in cases where a contract is rescinded. On this basis, the assessment was affirmed.

Exemptions from parking spaces levies: an all or none proposition

Harbourlights – Strata Plan 32515 v Chief Commissioner of State Revenue [2023] NSWCATAD 172

The applicant owns a mixed commercial and residential building located in Milsons Point. The building comprises 7 commercial suites, 33 residential units and parking spaces, 5 of which were the subject of these proceedings. The central questions for determination were whether the 5 parking spaces were exempt from the levy and whether the interest should be remitted.

In the NSW Civil and Administrative Tribunal (NCAT), the applicant’s primary submission was that the parking spaces were set aside exclusively for use by the residents within the exemption in cl. 7(1)(b) of the Parking Space Levy Regulation 2009 and cl. 8(1)(b) of the Parking Space Levy Regulation 2019  and that 'parking of motor vehicles by persons who reside on the premises' should be interpreted to include situations where the residents had direction and control over the parking of the vehicle but did not necessarily own the vehicle being parked. In the alternative, the applicant submitted that the parking spaces were exempt on the basis that they were being set aside for one or more of the exempt uses listed in the regulations.

The respondent submitted that the applicant was not entitled to any of the exemptions because (a) the visitor parking spaces were not exclusively set aside for the exempt purposes, and (b) the visitor parking spaces were not unused casual parking spaces. 

NCAT rejected the applicant’s construction of the word 'by', in cl. 7(1)(b) of the 2009 Regulation and cl. 8(1)(b) of the 2019 Regulation, stating that the regulations do not extend to parking spaces over which the resident had direction and control. In addition, NCAT confirmed that, for the exemption to apply, it was necessary for the parking spaces to be set aside for exempt purposes and they could not be used at any time for non-exempt purposes.

The applicant appealed the decision. The Appeal Panel heard the appeal on 15 September 2023, and the decision was reserved. 

Only one penalty can be imposed for repeated or continuing contraventions of a NSW Civil and Administrative Tribunal order

The Owners – Strata Plan No 4393 v Roberts [2023] NSWCATCD

The Commissioner for Fair Trading  intervened in civil penalty proceedings and made submissions on the statutory construction of s. 247A of the Strata Schemes Management Act 2015, which provides that the NSW Civil and Administrative Tribunal (NCAT) may order a person to pay a pecuniary of 50 penalty units for contravention of an order under the Act.

The applicant brought proceedings against Ms Roberts for multiple alleged contraventions of various stop-work orders made by NCAT under the Act. The applicant submitted that the NCAT is not limited to imposing a single penalty for unlimited contraventions of one NCAT order.

The Commissioner submitted that the orthodox construction of s. 247A is that only one penalty can be imposed for repeated or continuing contraventions of an NCAT order.  The respondent submitted that mens rea is a necessary component to establish a contravention of s. 247A of the Act, whereas the applicant and the Commissioner submitted that it was not.

NCAT accepted the Commissioner’s position, finding that the proper construction of s. 247A of the Act only permits NCAT to impose a single penalty where an NCAT order is contravened on multiple occasions. NCAT also found that mens rea is not a necessary component to establish a contravention of s.247A of the Act.