ALQ December 2022 Merits Review

Issue: December 2022

Merits Review

Proper construction of the ‘fit and proper person’ test

Access the decision: Combat Sports Authority of New South Wales v Fisher [2022] NSWCATAP 387

At first instance, the Tribunal set aside the Authority’s decision to refuse to register the respondent as a combatant in the Amateur Boxing registration class under the Combat Sports Act 2013 (“the CS Act”) and, instead, decided to grant the respondent’s application for registration. The Authority appealed the Tribunal’s decision.

The Appeal Panel allowed the appeal, accepting the Authority’s submission that the Tribunal fell into errors of law by misconstruing the statutory ‘fit and proper person’ test to be applied under s. 13(1)(b) of the CS Act and by failing to deal with the central plank of the Authority’s submissions concerning the proper construction of that test. The Appeal Panel held that the Tribunal: erred in failing to consider the maintenance of public confidence in the combat sports industry (particularly with respect to the expectation that the combat sports industry takes the issue of domestic violence seriously) as a relevant factor in deciding whether the Respondent is a ‘fit and proper person’; wrongly conflated the ‘fit and proper person’ test within the broader ‘public interest’ test in considering benefits to the respondent’s mental health and rehabilitation as relevant to the question of whether he is a ‘fit and proper person’; and, unduly discounted the respondent’s acts of violence, as conduct occurring outside the context of competitive boxing can nonetheless be suggestive of a lack of good character such that a Tribunal may not be satisfied that the respondent is a ‘fit and proper person’.

Appeal Panel finds lack of procedural fairness

Access the decision: ZVR v NSW Trustee and Guardian [2022] NSWCATAP 349

The Appeal Panel allowed an appeal from a decision of the Mental Health Review Tribunal (“the MHRT”) to appoint the first respondent as financial manager for the appellant on procedural fairness grounds (without considering further grounds). The appellant’s sister, an appointed guardian and so “designated carer” for the purposes of s. 71(1)(a) of the Mental Health Act 2007 (“the MH Act”), was not notified of the Tribunal hearing as required by s. 78(1)(h) of the MH Act.

The appellant relied on various grounds including denial of procedural fairness. Neither the first nor second respondent had any interest in the outcome. However, the second respondent, a Local Health District, made submissions to assist the Appeal Panel.

The Appeal Panel accepted that there had been a material denial of procedural fairness, such that the Tribunal decision should be set aside. In particular, the Appeal Panel observed that, having regard to “the existence of an apparently valid and operable enduring power of attorney to provide for substitute management of ZVR’s finances”, it was possible that the MHRT would exercise its discretion to refuse to consider whether to make a financial management order. In relation to an evidentiary issue, the Appeal Panel also held that, to the extent that the existing authorities suggest that further evidence can never be allowed in an external appeal hearing which is a rehearing, they should not be followed.

Claiming the childcare exemption under s. 10(1)(u) of the Land Tax Management Act 1956

Access the decision: Mourched v Chief Commissioner of State Revenue [2022] NSWCATAP 362

The Chief Commissioner issued an assessment to the appellants in respect of two parcels of land comprising a single lot and DP at Leppington (Parcels A and B). The Valuer General divided what was previously a single parcel into Parcels A and B. Parcel A retained the land tax exemption under s. 10(1)(u) or 10(1)(v) of the Land Tax Management Act 1956 (“the LTM Act”), while Parcel B (which contained a septic system used for the childcare centre located on Parcel A) did not. The Tribunal at first instance was not satisfied that Parcel B was used as a place where children were educated or cared for.

On appeal, the Appeal Panel held that the Tribunal did not err in law in not accepting that the sole use of Parcel B was its water treatment facility and accepted the Chief Commissioner’s submission that the evidence of a development application for Parcel B and associated exploratory work meant that Parcel B did not have an approved educational and care service as its “sole use” within the meaning of s. 10(1)(u).

Moreover, the Appeal Panel held that, even if this were not the case, the s. 10(1)(u) exemption would not be attracted merely by the supply of a sewerage water facility to Parcel A as Parcel B is not the place where the actual conduct of educating or caring for children in an approved facility takes place.

The scope of administrative review unlimited by original decision

Access the decision: PSG Security Group Pty Ltd v Commissioner of Police, NSW Police Force; ERA Security Group Pty Ltd v Commissioner of Police, NSW Police Force [2022] NSWCATOD 164

The applicants sought administrative review of the Commissioner’s decision to revoke their security licences under s. 26(1A) of the Security Industry Act 1997 (“the SI Act”) in reliance only on cl. 13(1)(b) of the Security Industry Regulation 2016 (“the SI Regulation”), the effect of which is that the Commissioner must revoke an applicant’s licence if “the applicant or a close associate of the applicant” at any time in the 3 years immediately preceding the application for the licence was concerning in the management of a corporation when the corporation was the subject of a winding up order.

The applicants argued that the word “applicant” in cl. 13(1)(b) applies to natural persons only, not corporations and that, in administrative review proceedings, the Commissioner was precluded, in defending her decision, from relying on a statutory power that she did not rely on when she made her original decision to cancel the licences.

The Tribunal rejected these submissions, finding that the word “applicant” in cl. 13(1)(b) includes natural persons and corporations and that the Tribunal can, when making its decision, rely on a statutory power (in this case, s. 15(2C) of the SI Act) not relied upon by the original decision maker and affirmed the decision to revoke the applicants’ licence.

When are separate buildings on adjoining lots a single residence?

Access the decision: Bennett v Chief Commissioner of State Revenue [2022] NSWCATAD 324

The Chief Commissioner made an assessment of land tax with respect to land comprising two adjoining lots. The applicant challenged the assessment on the basis the lots together formed a single parcel of residential land which the applicant used and occupied as her principal place of residence. Part of one lot (No. 38) was leased to tenants while the applicant used and occupied the adjoining lot as her principal place of residence and used the balance of No. 38 for her own purposes. Although each lot originally contained separate buildings, the applicant submitted that the construction of an annex between them created a single interconnected building straddling both lots.

The Tribunal found the evidence relating to the physical structure of the annex was not sufficient and that, even if it were to accept the applicant’s evidence, it did not accept the annex transformed what was essentially two separate houses into a single building.  This was reinforced by the fact that, when tenanted, the occupants of No. 38 could not access No. 36 and vice versa. It therefore held that there were separate buildings erected on No. 36 and No. 38, which were separately occupied or capable of being used for separate occupation such that, by reason of clause 13(2)(b) of Sch. 1A to the Land Tax Management Act 1956, the two properties were not the site of a single residence.

Meaning of “service” under the Anti-Discrimination Act 1977

Access the decision: FGW v Department of Communities and Justice [2022] NSWCATAD 291

Following the removal of her children by the Secretary pursuant to s. 43(1) of the Children and Young Persons (Care and Protection) Act 1998, the applicant filed a discrimination complaint with Anti-Discrimination NSW (“ADNSW”) alleging that, in removing the children, she had been directly discriminated against on the grounds of a disability, being a diagnosis of borderline personality disorder and a drug addiction. She sought, by way of remedy, the return of the children to her care.

After the complaint was dismissed as lacking in substance by the President of ADNSW, the applicant sought a referral of the complaint to the Tribunal, which requires leave (s. 96 of the Anti-Discrimination Act 1977). The Tribunal dismissed the application for leave on the basis (inter alia) that, as the Secretary was exercising a statutory power in removing the children, the applicant was not the recipient of a service provided by the respondent.

No utility in reviewing expired public health orders

Access the decision: Davis v Minister for Health [2022] NSWCATAD 342

The applicant, formerly a nurse in the NSW Health Service, sought administrative review of directions made under four expired public health orders requiring the vaccination of health care workers against COVID-19. The Minister sought to have the proceedings summarily dismissed on the basis that they lacked utility.

Since none of the orders remained in place, the Minister submitted that, weighed against the prospect of lengthy, complicated and resource demanding proceedings, the proceedings were “frivolous, vexatious or otherwise misconceived or lacking in substance”. The applicant submitted that the proceedings would still have practical effects regarding the termination of her employment, vindicating and correcting the record in respect of her and advancing the public interest by promoting transparency and good government.

The Tribunal dismissed the proceedings. It did not do so merely because there were no longer relevant public health orders in place - it rejected the applicant’s submissions regarding the practical effect of the orders sought on her personally. In particular, it found that, where the applicant’s termination had an independent basis separate from the orders, their review could not have a practical effect on her. In considering the public importance in the proceedings, the Tribunal found that the “minimal or negligible utility of the orders sought” was outweighed by the resources that would be involved in the proceedings.

Other decisions in this issue

Last updated:

30 Dec 2022