| | | | | | | | NCAT Legal Bulletin Issue 1 of 2016
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| | The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal. This issue covers the period of January to March 2016. |
| | | Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1
3 February 2016
In brief: The High Court held, by majority, that the offshore processing arrangements that operate on Nauru are legal. This ultimate conclusion flowed from two findings of the majority: first, that s 198AHA of the Migration Act 1958 (Cth) (the Act), a retrospective law which authorised certain Commonwealth actions in relation to regional processing, is a valid law of the Commonwealth under the aliens power (at [42] and [54]). And second, the majority’s finding that the plaintiff, a Bangladeshi asylum seeker and ‘unauthorised maritime arrival’ under s 5AA of the Act, was detained by Nauru, and not Australia, such that the principle in Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 concerning executive detention did not apply (at [39]).
Read the decision on the High Court of Australia website. |
| CGU Insurance Limited v Blakeley [2016] HCA 2
11 February 2016
In brief: The High Court held that the federal jurisdiction invested in the Supreme Court of Victoria authorised that Court to entertain a claim for a declaration, by a plaintiff against a defendant's insurer, that the insurer is liable to indemnify the defendant.
Read the decision on the High Court of Australia website. |
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Tabcorp Holdings Limited v Victoria [2016] HCA 4
2 March 2016
In brief: The High Court unanimously dismissed an appeal from the Victorian Court of Appeal. Tabcorp held a wagering licence and gaming licence under Gambling Regulation Act 2003 (Vic) (the 2003 Act). The 2003 Act contained a provision, s 4.3.12(1), which provided that ‘[o]n the grant of new licences’, the holder of the former licences would be entitled to be paid a certain amount by the State. In 2009, amendments to the 2003 Act provided for a new gaming authority called a ‘gaming machine entitlement’ (‘GME’). A GME permits its holder to conduct gaming on an approved gaming machine. 27,500 GMEs were created. Tabcorp claimed entitlement to payment under s 4.3.12(1) of the 2003 Act. The Court held that Tabcorp was not entitled to payment because there was no ‘grant of new licences’: the statutory phrase meant the grant of a new wagering licence and a new gaming licence (at [77] and [86]), and did not cover the new GMEs.
Read the decision on the High Court of Australia website. |
| Victoria v Tatts Group Limited [2016] HCA 5
2 March 2016
In brief: The High Court unanimously allowed an appeal from the Victorian Court of Appeal. Tatts held a 'gaming operator's licence' under Pt 3 of the Gaming Machine Control Act 1991 (Vic) (the 1991 Act). Under a 1995 agreement with the State, Tatts was entitled to a terminal payment '[i]f the Gaming Operator's Licence expires without a new gaming operator's licence having issued to [Tatts]'. Tatt's gaming operator's licence expired and none of the new GMEs were issued to Tatts. The High Court held that the phrase 'new gaming operator's licence' in the 1995 agreement referred to a gaming operator's licence granted under Pt 3 of the 1991 Act. In doing so, the Court construed the agreement 'by reference to the text, context and purpose' (at [51]-[76]) and presumed that the parties had used the phrase 'gaming operator's licence' consistently in the agreement (at [55]). As a 'new gaming operator's licence' was never issued, Tatts was not entitled to payment under cl 7 of the 1995 Agreement.
Read the decision on the High Court of Australia website. |
| The Queen v GW [2016] HCA 6
2 March 2016
In brief: The High Court unanimously allowed an appeal from the ACT Court of Appeal and held that the Uniform Evidence legislation is ‘neutral in its treatment of the weight that may be accorded to evidence whether it is sworn or unsworn’ (at [46]).
Read the decision on the High Court of Australia website. |
| Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7
10 March 2016
In brief: The High Court unanimously allowed an appeal from the Queensland Court of Appeal concerning compensation for the resumption by the Council of amalgamated land. The Respondent was a tenant over premises on land (former Lot 6) which was amalgamated with an adjacent lot (former Lot 1) to create a larger lot (new Lot 1). After the appellant Council resumed the part of the new Lot 1 that formed part of the old Lot 1, the Respondent claimed compensation under the Acquisition of Land Act 1967 (Q). The High Court held that the Respondent’s interest in land remained confined to that part of new Lot 1 which previously lay within former Lot 6 (at [46]), and therefore was not entitled to compensation.
Read the decision on the High Court of Australia website. |
| R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8
10 March 2016
In brief: The High Court unanimously dismissed an appeal against a decision of the Victorian Court of Appeal. In doing so, the High Court held that the power of the Independent Broad-based Anti-corruption Commission to hold an examination, pursuant to Pt 6 the Independent Broad-Based Anti-Corruption Commission Act 2011 (Vic), can be exercised in relation to persons who have not been, but might subsequently be, charged and put on trial for an offence relating to the subject matter of the examination. The Court rejected the appellant’s arguments that the examination would violate the principle of legality and held that the companion principle (whereby an accused cannot be compelled to assist the prosecution to make its case) was not engaged because the appellants had not been charged (at [48]).
Read the decision on the High Court of Australia. |
| Court of Appeal of New South Wales
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| Despot v Registrar General of New South Wales [2016] NSWCA 5
3 February 2016 – Gleeson and Leeming JJA, Sackville AJA
The Court of Appeal (the CA) considered whether a Supreme Court decision was final or interlocutory for the purpose of determining whether leave was required under s 101(2)(e) of the Supreme Court Act 1970 (NSW). The CA stated the test as follows:
[93] The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them, a question answered by determining whether the legal, rather than the practical, effect of the judgment is final or not: Re Luck [2003] HCA 70; 78 ALJR 177 at [4]; Carr v Finance Corporation of Australia (No 1) [1981] HCA 20; 147 CLR 246 at 248.
…
[95] In El-Saeidy v NSW Land & Housing Corporation [2014] NSWCA 172 at [58] and [64], this Court (McColl and Ward JJA) held that “working out orders, albeit in some cases expressed as declarations, merely concluded the fate of the particular application in which they were made, and accordingly, were interlocutory only.” As Young JA also explained in Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd [2012] NSWCA 61 at [28]-[29], although a declaration of right is always “final”, it may not “finally determine the rights of the parties”.
Read the decision on the NSW Caselaw website. |
| Pyrmont Point Pty Ltd v Westacott [2016] NSWCA 33
9 March 2016 – Ward and Leeming JJA and Emmett AJA
The Court of Appeal dismissed an appeal from a Supreme Court decision, itself an appeal from NCAT’s Appeal Panel ([2014] NSWCATAP 106). The issue on appeal was whether s 6(1)(b) of the Retail Leases Act 1994 (NSW), which excludes from the operation of the Act ‘leases for a term of 25 years or more (with the term of a lease taken to include any term for which the lease may be extended or renewed at the option of the lessee)’, covered a lease for a term of five years with four options to renew of five years each. In holding that s 6(1)(b) did cover the lease (such that the Act did not apply to it), Ward JA (with whom Leeming JA agreed) held (at [44]–[45]):
[44] The word “lease” in the opening words of s 6(1)(b) must incorporate the definition in s 3. Thus, when determining the term of a “lease” for the purposes of s 6(1)(b) the legislature is not confining the subject matter to a lease as that expression is understood under the general law of real property. Instead, it incorporates any agreement under which a person grants or agrees to grant a person for value a right of occupation of premises for the purpose of the use of those premises as a retail shop. If there is an agreement to grant a right of occupation of that kind for a term of or exceeding 25 years (taking into account any option to renew or extend the term of that agreement) it is not one that is governed by the legislation.
[45] It is clear that the legislature is not looking to the leasehold estate as such but to the grant of a right of occupation. That incorporates a special notion of lease into the legislation and is inconsistent with the argument that each time a new leasehold estate is created by exercise of an option for renewal there is a new “lease” for the purposes of s 6(1)(b).
Read the decision on the NSW Caselaw website. |
| Gaynor v Burns [2016] NSWCA 44
16 March 2016 – McColl JA, Emmett AJA
The Court of Appeal considered an application for leave to appeal from a decision of NCAT’s Appeal Panel, pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). In the hearing for leave to appeal, the Appellant submitted that the CA did not have jurisdiction to hear the leave application because the Tribunal was not a ‘specified tribunal’ within the meaning of s 48(1)(a) of the Supreme Court Act 1970 (NSW). The CA rejected this jurisdictional submission, holding that the Appeal Panel is a ‘specified tribunal’ when presided over by an Acting District Court Judge (at [31]–[32]).
Read the decision on the NSW Caselaw website. |
| Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55
23 March 2016 – Meagher and Leeming JJA and Emmett AJA
Leeming JA considered the tension between the obligation to explain the reasons for an assessment (under s 94(5) the Motor Accidents Compensation Act 1999 (NSW) and the Claims Assessment Guidelines) and the obligation to be concise (under the same Act and Guidelines). His Honour held:
[6] … Although it is undesirable for the statement of reasons to leave important matters to inference, doing so does not necessarily breach the obligation to set out the Assessor’s reasons. The question is whether the reasoning process can be discerned, reading the reasons as a whole and applying a “beneficial construction” to which the High Court referred in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. At least where a gap may be filled as a matter of necessary inference on a fair reading of the reasons, I would consider that the obligation to set out the reasons has been discharged.
Note: Although the statutory framework is different, this approach is consistent with the approach taken by the Appeal Panel in Hernady v Raccani [2016] NSWCATAP 67.
Read the decision on the NSW Caselaw website. |
| Perry v Anthony [2016] NSWCA 56
24 March 2016 – Beazley P, Gleeson JA and Emmett AJA
The Court of Appeal considered an appeal from the District Court concerning an indemnity for losses incurred in currency trading. The CA held (at [43]):
[43] There is no general principle that a person is not entitled to the benefit of an indemnity unless that person has suffered an actual ascertainable loss. Rather, it is always a question of the proper construction of the indemnifying clause as to the nature and extent of the rights and liabilities that arise thereunder and as to when such rights may be enforced.
The Court also provided guidance on the construction of commercial contracts (at [58]):
[58] It is well settled that a commercial contract must be construed as whole according to its terms and in accordance with what a reasonable business person would have understood them to mean. This involves:
“… a consideration of the language used, the surrounding circumstances known to [to the parties] and the commercial purpose or objects to be secured by the contract”: Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 at [35].
Read the decision on the NSW Caselaw website.
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| | Federal Court of Australia |
| Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
15 February 2016 – Allsop CJ, Griffiths and Wigney JJ
The Full Federal Court (the Court) noted the recent High Court authority of Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, which ‘made clear that legal reasonableness or an absence of legal unreasonableness was an essential element in the lawfulness of decision-making; Parliament is taken to intend that statutory power will be exercised reasonably … at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J)’. The Court stated that ‘[t]hese statements of general principle …variously drew upon and drew together a number of well-known expressions and bodies of principle’, which the Court quoted at [5] of its judgment.
Read the decision on the Federal Court of Australia website. |
| Chubb Insurance Company of Australia Limited v Robinson [2016] FCAFC 17
26 February 2016 – Foster, Robertson and Davies JJ
The Full Federal Court summarised (at [98]–[104]) the principles governing the construction of insurance contracts and exclusion clauses, drawing together statements in the following authorities:
1. McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579, 589 [22] (Gleeson CJ);2. McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579, 600–603 [74] (Kirby J);
3. Todd v Alterra at Lloyds Ltd (on behalf of the underwriting members of Syndicate 1400) [2016] FCAFC 15, [35]–[44] (Allsop CJ and Gleeson J); and
4. Todd v Alterra at Lloyds Ltd (on behalf of the underwriting members of Syndicate 1400) [2016] FCAFC 15, [71]–[77] (Beach J).
Read the decision on the Federal Court of Australia website. |
| Australian Competition and Consumer Commission v P T Garuda Indonesia Ltd [2016] FCAFC 42
21 March 2016 – Dowsett, Yates and Edelman JJ
In a lengthy decision on the liability of two airlines for collusive behaviour, contrary to s 45 of the Trade Practices Act 1974 (Cth), the Full Federal Court provided the following guidance on the meaning of ‘agent’ (at [55]):
[55] The term “agent” can be slippery but it is usually used to “connote an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties”: International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co [1958] HCA 16; (1958) 100 CLR 644, 652 (the Court). In this sense, an intermediary is not necessarily an agent: Dal Pont GE, Law of Agency (3rd ed, LexisNexis Butterworths, 2014) 55 [2.23].
Read the decision on the Federal Court of Australia website. |
| Supreme Court of New South Wales
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| Hancock v Rinehart (Privilege) [2016] NSWSC 12
2 February 2016 – Brereton J
Mrs Rinehart claimed legal professional privilege over documents, which were the subject of a delivery up order, on the basis that they were confidential communications or documents made for the purpose of her obtaining legal advice, or conducting anticipated or pending litigation, in her personal (not her trustee) capacity. In ruling that the claim of privilege failed, the Supreme Court summarised the principles relating to legal professional privilege, particularly in the context of a trust:
[6] … Legal advice obtained by a trustee for guidance in the administration of the trust or the proper exercise of trust powers belongs to the trust, not to the trustee personally. On the other hand, advice obtained for the trustee’s personal assistance, such as in resisting litigation brought against the trustee by a beneficiary, belongs to the trustee alone…
[7] To sustain a claim of privilege, the claimant must not merely assert it; but must prove the facts that establish that it is properly made. Thus a mere sworn assertion that the documents are privileged does not suffice, because it is an inadmissible assertion of law; the claimant must set out the facts from which the court can see that the assertion is rightly made, or in other words “expose … facts from which the [court] would have been able to make an informed decision as to whether the claim was supportable”. The evidence must reveal the relevant characteristics of each document in respect of which privilege is claimed, and must do so by admissible direct evidence, not hearsay.
The Supreme Court also considered Mrs Rinehart’s submission that the Court should inspect the disputed documents to determine the claim for privilege. The Court ruled (at [35]) that “[t]o voluntarily produce the documents to the court for the purpose of use in evidence on the application is inconsistent with maintaining a claim for privilege” and that the “the court’s discretionary power to require production in order to enable inspection for the purpose of adjudicating the claim … exists to enable a claim for privilege to be scrutinised, not to enable it to be proved”.
Note: This decision was upheld on appeal: Rinehart v Rinehart [2016] NSWCA 58.
Read the decision on the NSW Caselaw website. |
| Hancock v Rinehart (Costs) [2016] NSWSC 11
2 February 2016 – Brereton J
The Supreme Court considered and summarised the principles relevant to the award of costs in a costs decision relating to the Hope Margaret Hancock Trust litigation:
[7] In considering liability for costs as between parties to litigation, although the “ordinary rule” is that a successful plaintiff is entitled to its costs, a successful plaintiff who has failed on certain issues may be deprived of costs in respect of those issues, or even ordered to pay the defendant’s costs of them. This is particularly so where a clearly definable and severable issue on which the otherwise successful party failed has occupied a significant part of the trial. The following propositions, of particular relevance in the present context, were stated by Toohey J in Hughes v Western Australian Cricket Association, and have been repeatedly cited with approval:
1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order.
2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed.
3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. (references omitted).
[8] Contrary to what was assumed in the plaintiffs’ submissions, this approach is not limited to cases in which it was unreasonable for the successful party to raise the issue on which it failed, although the propositions serve only to identify cases in which it may be appropriate to depart from the ordinary rule, as opposed to cases in which the court must do so. Whether a departure from the “ordinary rule” is justified is informed by the underlying objective, which is to achieve an outcome in which costs are borne in a way that is fair, having regard to what the Court considers to be the relative responsibility of each party for the incurring of the costs, as Hodgson JA has explained:
[121] In my opinion, underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant's responsibility because the plaintiff was caused to incur costs by the defendant's failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled: cf Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ. Departures from the general rule that costs follow the event are broadly based on a similar approach.
Read the decision on the NSW Caselaw website. |
| Sprayworx Pty Ltd v Homag Australia Pty Ltd [2016] NSWSC 51
11 February 2016 – Harrison J
The Supreme Court admitted, over the first plaintiff’s objection, evidence of two experts (Mr Bauersfeld and Mr Duwentäster). The evidence related to alleged defects in an industrial sander that the defendant had supplied to the first plaintiff. The experts’ evidence consisted of both expert opinion and evidence of their communications with the second plaintiff (lay observation). The first plaintiff complained that both experts are ‘partial witnesses whose objectivity as experts is fundamentally and fatally flawed by their close relationship to Homag [the defendant] and their partiality as evidenced by their dealings with [the second plaintiff] or comments to others about him’ (summarised at [13]). In ruling that both witnesses should be heard and their affidavits should be admitted, the Court stated:
[16] Mr Bauersfeld’s expert opinion is effectively restricted to a comment upon whether the opinion proffered by [the first plaintiff’s] expert is of any value having regard to the date of the inspection upon which it is based. The question of Mr Bauersfeld’s partiality or lack of objectivity does not seem to me to be intimately concerned with his expert views about that limited issue…
[17] … I think that a distinction needs in this case to be drawn between Mr Duwentäster’s evidence of the events in which he was actively and practically involved as a lay observer and the opinion about the operation of the machine that he has offered as an expert. To the extent that the former may arguably have infected the latter, his evidence will in due course be exposed to cross-examination in the usual way. I consider that this is a sufficient and adequate protection for [the first plaintiff] in the circumstances. I am also not satisfied upon the material before me that it can be said that Mr Duwentäster’s ability to offer technical opinions based upon his education, training and experience have been so badly compromised that the whole of his evidence should be rejected out of hand.
Note: This approach is consistent with the approach taken by the Appeal Panel in Chi Building Pty Ltd v Wedgwood [2016] NSWCATAP 64.
Read the decision on the NSW Caselaw website. |
| Owners Strata Plan 78465 v M D Constructions Pty Ltd [2016] NSWSC 162
19 February 2016 – Hammerschlag J
In a case concerning a ‘systemically defective’ residential building, the Supreme Court found that the defendant builder was liable for breach of the statutory warranties under s 18B of the Home Building Act 1989 (NSW) (the Act). The only two issues at trial were whether the proceedings were brought out of time under s 18E(1)(a) of the Act, and whether the plaintiff failed to discharge its duty to mitigate its damage ‘by reason of [its] refusal to allow the defendant the opportunity to arrange for rectification of the defects alleged’. Hammerschlag J summarised the principles relevant to the second issue (mitigation) as follows:
[27] The applicable principles were lucidly summarised by Ball J in Owners Strata Plan 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067.
[28] I proceed on the footing that as part of its duty to mitigate damages, an owner is required to give its builder an opportunity to minimise the damages it must pay by rectifying defects except where its refusal to give that opportunity is reasonable, or where the builder has repudiated the contract by refusing to conduct any repairs.
[29] What is reasonable depends on all of the circumstances. One relevant factor is whether the owner reasonably lacks confidence in the willingness and ability of the builder to do the work. The defendant must prove that the plaintiff has acted unreasonably; it is not for the plaintiff to prove that it acted reasonably. The matter is one for objective assessment.
[30] I record that the defendant put that only evidence of matters actually known to the plaintiff was admissible in that assessment. I reject this submission. Once a defendant puts the matter in play, all circumstances relevant to an objective assessment of the plaintiff's position become examinable. The plaintiff is not limited to reliance on facts or circumstances actually known to it at the time, but may rely on facts which come to its attention afterwards, but which pertain to the defendant's conduct at the relevant time. The applicable principle, albeit in a slightly different context, is explained in Shepherd v Felt and Textiles of Australia (1931) 45 CLR 359. So, for example, if a plaintiff later learns that a builder was at the relevant time incapable of doing the work because it was insolvent, it may rely on the fact. It could hardly lie in the mouth of a builder to say that it was unreasonable on the part of the owner not to employ it to repair defects when it was insolvent at the time.
Read the decision on the NSW Caselaw website. |
| Mehajer v Director-General of the Department of Local Government [2016] NSWSC 143
26 February 2016 – Garling J
The Supreme Court upheld an appeal brought by Salim Mehajer, a councillor on the Auburn City Council (‘the Councillor’), against a decision of NCAT’s Occupational Division ([2016] NSWCATOD 10). The principal issue before NCAT was whether the Councillor was obliged to disclose his pecuniary interest in a property, held by a company in which he had a beneficial interest, and not to take part in the council meetings insofar as they were considering a report that proposed planning amendments. The NCAT decision found that, in not disclosing his pecuniary interest, the Councillor had breached s 451 of the Local Government Act 1919 (NSW) (‘the LGA’) and suspended him from Civic Office for a period of four months.
On appeal, the central question was ‘whether the proposal being discussed by the Council, was one which related to the amending of an environmental planning instrument, namely the Auburn L[ocal] E[nvironment] P[lan], which did not effect a change of the permissible use of land’ (see [72]). This question arose because s 448(g) of the LGA provides for an exemption to the general duty of disclosure in these terms. The answer to this central question turned on the meaning ‘permissible uses’: NCAT, drawing upon an earlier decision of the Local Government Pecuniary Interest Tribunal, took a broader interpretation. The Supreme Court, in adopting a narrower interpretation, held that the exemption in s 448(g) applied and that no breach of s 451 had occurred.
Read the decision on the NSW Caselaw website. |
| BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146
29 February 2016 – Adamson J
The Supreme Court dismissed an appeal brought by a barrister against a decision of NCAT’s Occupational Division ([2015] NSWCATOD 73). The appellant did not challenge any of the orders made by the Tribunal, but did challenge the Tribunal’s findings that she engaged in unsatisfactory professional conduct in three respects:
1. In arriving to court late on several occasions;
2. In breaching r 16 of the New South Wales Barristers Rules by leasing a client part of her property; and
3. In continuing to act for the client while taking steps to evict her from the property.
All of the appellant’s grounds of appeal pursued in the Supreme Court turned on ‘the meaning of “unsatisfactory professional conduct” and whether, and to what extent, a psychiatric condition is relevant to the question whether conduct amounts to unsatisfactory professional conduct.’
The Supreme Court found that all of the conducted amounted to unsatisfactory professional conduct and that the appellant’s mental condition did not deprive it of this character. After reviewing a number of authorities, the Court summarised the principles as follows:
[100] The language of the definition of “unsatisfactory professional conduct” is apt to connote that the test is an objective one. In these circumstances the objective conduct, rather than the professional culpability of the practitioner, is of prime, if not sole relevance. Therefore, generally speaking, any mental affliction which the practitioner may suffer is irrelevant to the characterisation of conduct as unsatisfactory professional conduct. However, where the conduct contains a mental element (such as in Kay where the allegation in the complaint was that he had “wilfully” breached s 255 of the 2004 Act), the test is not entirely objective, since a mental condition may affect the question whether conduct is “wilful”.
[101] Where the question is whether certain conduct amounts to “professional misconduct”, the relevance of a mental condition will depend on the species of professional misconduct. For example, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence (in s 497(1)(a)), the practitioner’s mental condition may not be relevant.
[102] The mental condition of a practitioner, if it is relevant to the conduct, will generally be relevant to the question what orders ought be made as a consequence of a finding of professional misconduct or unsatisfactory professional conduct.
Finally, the Court rejected the appellant’s submissions that the Tribunal’s making of findings served no purpose. The Court stated “[t]he making of findings serves an important educative role, particularly where, as here, no disciplinary action is taken notwithstanding that a practitioner has been found guilty of unsatisfactory professional conduct.”
Read the decision on the NSW Caselaw website. |
| Director of Public Prosecutions v Lazzam [2016] NSWSC 145
29 February 2016 – Adamson J
The Supreme Court (the Court) set aside an order of a Local Court Magistrate dismissing summary criminal proceedings against two defendants. The Magistrate’s order had been made following the Magistrate’s decision to refuse to admit statements in a police brief which had been served outside the time permitted by the directions. The Court held: ‘[t]hat a police brief is not served in accordance with the court’s directions does not independently affect its admissibility and provides no basis to reject the evidence’.
The Court also provided guidance on the operation of s 188 of the Criminal Procedure Act 1986 (NSW), particularly on the factors relevant to the discretion to dispense with the requirement to refuse to admit evidence for non-compliance with certain rules:
(1) Whether there was any prejudice to the defendants; and, if so, whether it could be cured or ameliorated: for example, on conditions that included an adjournment …
(2) The reason for any non-compliance; …
(3) The probative value of the evidence and its importance of the evidence to the proof of the offences charged; …
(4) The public interest in determination of criminal proceedings by reference to probative, (otherwise) admissible evidence … and
(5) The public interest in finality and avoiding delays in proceedings…
Read the decision on the NSW Caselaw website.
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