| | | | | NCAT Legal Bulletin Issue 1 of 2019
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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.
The latest issue features case summaries of recent decisions from the High Court of Australia and the NSW Court of Appeal, including: - Unions NSW v New South Wales [2019] HCA 1, which considered the constitutional validity of the NSW statutory cap on electoral expenditure by third party campaigners.
- Williams v Wreck Bay Aboriginal Community Council [2019] HCA 4, which addressed the laws applicable to the lease of Aboriginal Land in the Jervis Bay Territory, and more specifically, regarding terms of residential tenancies.
- AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2019] HCA 6, concerning whether it was necessary to make suppression and non-publication orders to protect a police informant and her children from risk of harm from those disaffected by her conduct as an informant.
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| Unions NSW v New South Wales [2019] HCA 1
29 January 2019 — Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In brief: The High Court unanimously held that s29(10) of the Electoral Funding Act 2018 (NSW), which creates a statutory cap on electoral expenditure by third party campaigners, is invalid because it impermissibly burdens the implied freedom of communication on governmental and political matters, contrary to the Constitution ([53], [102], [117]-[119], [160]). The amount of the statutory cap on election campaigning expenses of third-party campaigners could not be justified as there was no evidence to indicate that the figure chosen by the Parliament was appropriate ([102], [119], [153]). Justice Edelman also held that s35 of the Electoral Funding Act 2018 (NSW), which prohibits third party campaigners acting in concert with others to exceed the cap on electoral expenditure, is invalid in its entirety ([223]).
Chief Justice Kiefel, Bell and Keane JJ held that there will be some occasions where the court will be assisted by submissions by someone who is not a party to, or intervenor in, the proceedings such as in the absence of a contradictor or the parties do not present an argument on an issue that the court believes must be determined ([56]). It will only be on rare occasions that the court would permit a non-party to expand a constitutional case by adducing additional constitutional facts or issues ([57]).
Read the decision on the High Court of Australia website.
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| Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2
6 February 2019 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In brief: The majority of the High Court (Kiefel CJ, Bell, Keane and Nettle JJ; Gageler J agreeing; Edelman J dissenting), allowed an appeal from the NT Court of Appeal and held that there was no inconsistency between the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) (NT WHS Act) and the Commonwealth Aviation Law (comprised of the Air Navigation Act 1920 (Cth), the Civil Aviation Act 1988 (Cth) (CA Act) , the Civil Aviation Regulations 1988 (Cth) and some Civil Aviation Orders) in relation to the duty of care owed towards passengers embarking on aircraft.
The High Court considered whether the duty to ensure a safe workplace in s19 of the NT WHS Act (where workplace includes aircraft) (and the relevant offence provision in s32) were constitutionally invalid for inconsistency with the Commonwealth Aviation Law pursuant to s98(7) of the CA Act (equivalent to s109 of the Constitution, but in relation Territorian laws).
The joint judgment constituted by Kiefel CJ, Bell, Keane, Nettle, Gordon JJ held that, “[t]here is no dispute that cases concerning s109 inconsistency may be applied by analogy to a case involving a Territory law” ([30]). The joint judgment distinguished between the two approaches to inconsistency, namely “indirect inconsistency” and “direct inconsistency” ([29]-[35]). The joint judgment allowed the appeal holding that the CA Act does not indicate an intention to operate exclusively of other laws in respect of the safety of persons affected by aircraft operations including embarking on aircraft. This was despite the existence of duties and offences for breach of duties under the CA Act (Cth) similar to those in the NT WHS Act ([40], [54], [57]). This conclusion was put beyond doubt by qualification in s28BE(5) of the CA Act that the duty in s28BE to exercise care and diligence “does not affect any duty imposed by, or under, any other law of the Commonwealth, or of a State or Territory, or under the common law” ([49]).
Gageler J in a separate judgment noted that s6 of the Northern Territory (Self-Government) Act 1978 (Cth), which gives the Northern Territory Parliament the power to make laws for the “peace, order and good government of the Territory”, does not prevent a NT Law from being invalid under s109 of the Constitution for inconsistency or repugnancy with a Commonwealth law ([58]). Gageler J agreed with the joint judgment that there is no inconsistency between ss19 and 32 of the NT WHS Act and the CA Act in relation to the obligation of the holder of an air operator’s certificate to ensure the health and safety of persons in the course of air operations conducted under the certificate ([60]). Gageler J agreed with the Full Court of the Federal Court in Heli-Aust Pty Ltd v Cahill (2011) 194 FCR 502 that the CA Act operates exclusively in the area of “the prescription and enforcement of standards for the safe operation of aircraft”. However, Gageler J disagreed with the Federal Court that the exercise of reasonable care and diligence in operating an aircraft comes within this scope, because of s28BE(5) of the CA Act ([61]-[62], [84]). Gageler J noted at [90]:
“The mere potential for inconsistency to arise in practice as a consequence of the exercise of one or more statutory powers is no reason for holding the statutes conferring those powers to be inconsistent in all of their potential applications.”
Like the joint judgment, Gageler J allowed the appeal ([91]). Gageler J notes that whilst the concepts of “indirect inconsistency” and “direct inconsistency” are clearly established, it can be difficult to apply the test because “the reality of Commonwealth legislation is more complex than this conceptual dichotomy admits” ([68], [70]).
Edelman J, in a dissenting judgment, held that the Civil Aviation Law “provides a comprehensive, uniform scheme for regulating safety of air navigation” ([92], [110]) extending to safety standards relating to the boarding of aircraft, dealt with under the NT WHS Act. To construe it otherwise would mean that a breach of a safety standard that occurred immediately before take-off would be treated differently to one occurring in the moments after take-off [95]. However, the general criminal law, air security and torts to individuals are clearly outside the exclusive regime of air safety [96]. Accordingly, to the extent that s19(2) of the NT WHS Act purports to regulate the safety of air navigation, including boarding of aircraft, it is invalid. Edelman J dismissed the appeal ([98], [177]-[178]). Edelman J stated that the distinction between “direct inconsistency” and “indirect inconsistency” can mislead, and that rather than being treated as two separate categories they should be seen as different ways in which inconsistency can occur [105]. Read the decision on the High Court of Australia website.
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| Williams v Wreck Bay Aboriginal Community Council [2019] HCA 413 February 2019 – Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In brief: This decision considered what law governed conditions of a lease of Aboriginal Land in the Jervis Bay Territory, in particular in relation to residential tenancy terms.
The appellant commenced proceedings in the ACT Civil and Administrative Tribunal (ACAT) seeking orders that the Council undertake necessary repairs to the premises and pay compensation for breaches of the residential tenancy agreement under ss83(b) and (d) of the Residential Tenancies Act 1997 (ACT) (RT Act) ([12]). ACAT referred to the ACT Supreme Court the questions of law of whether the RT Act was a law that was not capable of operating concurrently with the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) (the Land Grant Act) in whole or in part ([14]). Section 46 of the Land Grant Act provides: “This Act does not affect the application to Aboriginal Land of a law in force in the Territory to the extent that that law is capable of operating concurrently with this Act”.
The Supreme Court held that it was able to operate concurrently ([15]). The Court of Appeal allowed the appeal holding that the RT Act cannot operate concurrently within the meaning of s46 of the Land Grant Act in relation to the following provisions:
- s8 of the RT Act, which requires a lease granted by the Council to contain the standard residential tenancy terms within the meaning of the RT Act; and
- s9 that renders void terms of a lease granted by the Council that are inconsistent with the standard residential tenancy terms ([16] and [42]).
The High Court allowed the appeal.
Kiefel CJ, Keane, Nettle and Gordon JJ held that the Land Grant Act “provisions considered together do not purport to provide a complete statement of the law governing the rights and obligations of parties to leases granted by the Council so as to exclude the application of the law generally applicable to leases within the JBT” ([65]). The majority (Bell J and Edelman JJ in separate judgments agreeing) allowed the appeal holding that the RT Act is, in part, a law that is not capable of operating concurrently with the Land Grant Act within the meaning of s46 of the Land Grant Act to the extent that s8(1)(a) read with Sch1, cl72 and s9 would prohibit subletting, and ss54 and 128 operate upon that prohibition on Aboriginal Land ([82], [98], [157]). Gageler J dissented, dismissing the appeal ([130]).
In short, the RT Act 1997 (ACT) and the Land Grant Act operate concurrently over leases of Aboriginal Land, save for terms relating to subletting, which are governed only by the Land Grant Act.
Read the decision on the High Court of Australia website. |
| AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2019] HCA 6
27 February 2019 – Nettle J
In brief: Justice Nettle granted an application brought by EF, a police informant, for suppression and non-publication orders under s77RE of the Judiciary Act 1903(Cth) to protect her and her children, who she argued are at grave risk of harm from persons dissatisfied by her actions as an informant ([1]-[2], [21]).
The Court of Appeal of the Supreme Court of Victoria rejected an application by AB for non-publication orders in relation to EF and her children under ss17 and 18(1)(c) of the Open Courts Act 2013 (Vic) and the Supreme Court’s inherent jurisdiction ([3]). The application to the High Court is not an appeal of that decision. It is a new and different application. However, as the relevant statutory criteria are similar the Court of Appeal’s reasoning is instructive ([6]).
The applicant sought orders on the ground that they were necessary to protect the safety of her children under s77RF(1)(c) of the Judiciary Act. The test of “necessary to protect the safety of any person” will be met where on the evidence “the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable” ([15]). Justice Nettle agreed with the Court of Appeal that any assessment of risk to the children involves some speculation. In this case there is unchallenged opinion evidence of senior police officers with appropriate experience that there is an “acute” risk to the safety of the children ([17]).
Justice Nettle considered evidence that unless publication of the children’s names and images is prohibited, such information could be used to identify the children’s location and undermine potential protective measures. This means that the risk of harm to the children remains or increases ([19]). There was nothing to suggest that the non-publication would compromise the interests or administration of justice or that there was any legitimate public interest in publication of this information ([20]). Section 77RI of the Judiciary Act requires that the order operates for no longer than is necessary to protect the safety of the individuals concerned. Determining the appropriate length of the order also involves conjecture. Justice Nettle noted that it was critical to consider that safeguarding the public interest in open justice is a primary objective of the administration of justice under s77RD of the Judiciary Act ([21]). Justice Nettle considered that it was necessary to make an order to protect the safety of the children to last for a period of 15 years following the publication of the final report of the Royal Commission into the Management of Police Informants due to: the seriousness of the informant’s actions for disaffected persons; the likelihood that disaffected persons may seek retribution and some will be unable to attempt this until being released from goal; and the children’s tender ages ([21]).
Read the decision on the High Court of Australia website. |
| | The NSW Court of Appeal publishes a regular bulletin containing summaries of its latest decisions of interest. Find below links to several such decisions from recent bulletins.
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| Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) [2019] NSWCA 11EQUITY – rectification of building contract – whether adjudication application under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Security of Payment Act) made within time – answer depends on the date under the contract for the making of a progress payment – whether the primary Judge was correct to order rectification of the contract by changing the due date for payment – whether the evidence supported the finding that the parties had a common intention, at the time the contract was executed, that the date for payment should be otherwise than as recorded in the contract.
BUILDING AND CONSTRUCTION – adjudication application invalid because made out of time – whether the contractor entitled to institute summary proceedings under s16(2)(a)(i) of the Security of Payment Act to recover unpaid portion of the scheduled amount as a debt – whether adjudication application, although a nullity, had a factual existence that had legal consequences – whether the invalid adjudication constituted an election between inconsistent statutory remedies so as to preclude summary proceedings to recover the debt.
BUILDING AND CONSTRUCTION - contractor in liquidation – whether the Security of Payment Act, as a matter of construction, is capable of operating for the benefit of a contractor which has gone into liquidation in insolvency – where Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247; (2016) 337 ALR 452 decides that equivalent Victorian legislation is not available to a contractor in liquidation – whether Victorian Court of Appeal decision is clearly wrong and should not be followed.
Read the decision on the NSW Caselaw website.
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| Kai Ling (Australia) Pty Ltd v Rosengreen [2019] NSWCA 3
CONTRACTS – formation – novation – requirements for effective novation of contract by substitution of party – whether option to purchase land novated in favour of substituted grantee.
Read the decision on the NSW Caselaw website.
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| DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Legal Bulletin should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication.
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