NCAT Appeals – What Constitutes Errors of Law or Jurisdictional Error

In the case of an appeal from a first instance decision to the NCAT Appeal Panel, s.80 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) provides that an internal appeal may be made in the case of an interlocutory decision, with leave, and any other decision, as of right on any question of law or with leave on any other grounds.

Clause 6, schedule 4 of the NCAT Act expressly states requirements in respect of the Appeal Panel granting leave, in that the Appeal Panel must be satisfied that the appellant has suffered a substantial miscarriage of justice because:

1. The decision was not fair and equitable;
2. The decision as against the weight of the evidence; or
3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

The principles of leave are outlined in Collins v Urban [2014] NSWCATAP 17 at [84] which provides in summary:

1. The applicant must demonstrate something more than the primary decision maker was arguably wrong;
2. There ordinarily must be:
   1. An issue of principle;
   2. Questions of public importance;
   3. A reasonably clear injustice that goes beyond what is merely arguable;
   4. A factual error unreasonably arrived at or clearly mistaken;
   5. The tribunal having gone about the fact finding process in an unorthodox manner which produced an unfair result;
3. Applications for leave to be approached with caution.

In respect of errors of law, the principles were summarised in John Prendergast & Vanessa Prendergast  v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]:

1. whether there has been a failure to provide proper reasons;
2. whether the Tribunal identified the wrong issue or asked the wrong question;
3. whether a wrong principal of law had been applied;
4. whether there was a failure to afford procedural fairness;
5. whether the Tribunal failed to take into account relevant (mandatory) considerations;
6. whether the Tribunal took into account an irrelevant consideration;
7. whether there was no evidence to support a finding of fact; and
8. whether the decision was so unreasonable that no reasonable decision-maker would make it.

In respect of appealing from a decision of the Appeal Panel to the Supreme Court, s.83(1) of the NCAT Act provides as follows:

(1) A party to an external or internal appeal may, with leave of the Supreme Court, appeal  on a question of law to the Court against any decision made by the Tribunal in the proceedings.

A party also has a right to appeal for jurisdictional error pursuant to s.69 of the Supreme Court Act 1970 (Singh v Singh [2023] NSWSC 280 at [29]).

The principles relating to an appeal to the Supreme Court from the Tribunal were recently summarised in Taylor Construction Group Pty Ltd v Strata Plan 92888 t/as the Owners Strata Plan 92888 [2021] NSWSC 1315 at [90]:

1. appeals lie to the Supreme Court from the Appeal Panel on a question of law pursuant to s 83 of [the Act];
2. the appeal to the Supreme Court is confined to the decision of the Appeal Panel rather than the Tribunal;
3. the appellants must demonstrate something more than that the decision of the Appeal Panel was arguably wrong. Ordinarily, leave will only be granted concerning matters that involve issues of principle, general public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable:
4. the proper approach on an application under s 83 of [the Act] is to identify the questions of law on which leave is sought in the Summons seeking leave to appeal.

It will be noted that the principles are substantially similar whether you are appealing from a first instance decision of the Tribunal to the Appeal Panel, or the Appeal Panel to the Supreme Court. However, it is important to be aware that when appealing to the Appeal Panel, there are specific statutory considerations in clause 12, schedule 4 of the NCAT Act which must be considered and addressed.

In respect of judicial review, a question of law pursuant to s.83 of the NCAT Act is also a ground of judicial review. Importantly, a ground of judicial review does not require leave of the Court as a question of law pursuant to s.83 of the NCAT Act.

Examples of jurisdictional error include:

1. failing to take into account a mandatory relevant consideration
2. taking into account an irrelevant consideration
3. failure to give reasons, or adequate reasons
4. applying the incorrect statutory test or otherwise failing to comply with the terms of the applicable legislation
5. denial of opportunity to be heard, denial of procedural fairness / natural justice;
6. legal unreasonableness;
7. lack of evidence to support a finding.

The case law identifies that the tests are substantially similar whether the appeal is lying from a first instance decision to the Appeal Panel, or the Appeal Panel to the Supreme Court. In addition, examples of jurisdictional error also often overlap with errors of law.