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| | NCAT Legal Bulletin Issue 1 of 2020
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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 of the Legal Bulletin features summaries of recent decisions from the NSW Court of Appeal and High Court of Australia: - CNY17 v Minister for Immigration and Border Protection & Anor [2019] HCA 50 – on apprehended bias
- Drama Unit Pty Ltd v Fearndale Holdings Pty Ltd (Administrator Appointed) & Anor [2019] NSWCA 312 – on wrongful eviction by refusal of possession under a commercial lease
- Jong v Advanced Dental Services Pty Ltd [2019] NSWCA 318 – on exercising an option to renew a commercial lease
- Ireland v WG Riverview Pty Ltd [2019] NSWCA 307 – on misleading or deceptive conduct
In addition, it contains links to recent bulletins published separately by the Court of Appeal, providing summaries of the following cases in New South Wales: - Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321
- Director of Public Prosecutions (NSW) v Hamzy [2019] NSWCA 314
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| CNY17 v Minister for Immigration and Border Protection & Anor [2019] HCA 50
13 December 2019 - Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ
In brief: This was an appeal from a decision of the Full Court of the Federal Court of Australia, concerning whether a decision of the Immigration Assessment Authority (the IAA) was infected by apprehended bias. The majority of the High Court (with Kiefel CJ and Gageler J dissenting) allowed the appeal, holding that the decision was infected by apprehended bias because the IAA considered material provided by the Secretary of the Department of Immigration and Border Protection (the Secretary) which was irrelevant and prejudicial to the appellant. As a result, the IAA’s decision was quashed, and the matter remitted to the IAA differently constituted.
Facts: The appellant arrived in Australia in August 2013 and was detained on Christmas Island ([74]). He applied for a Safe Haven Enterprise Visa in September 2016. In his application, he disclosed a conviction for damaging Commonwealth property while in immigration detention, as well as pending charges for “spitting at a guard & breaking a window” during protests on the island. His application was refused, and the refusal decision automatically referred to the IAA for review ([77]-[78]). Whenever a decision is referred to the IAA for review, s 473CB of the Migration Act 1958 (Cth) requires the Secretary to give the IAA any material which the Secretary considers to be “relevant to the review”. Section 473DB then requires the IAA to conduct its review by considering the review material provided by the Secretary ([113]-[115]).
In the appellant’s case, the material provided included 48 pages of “extraneous material” which was not relevant to the review, including assertions that the appellant had a history of “aggressive and/or challenging behaviour”, had been “involved in many incidents while in detention”, had been involved in a “riot”, and had been considered for but refused bridging visas on a number of occasions ([81], [98]). The appellant had never seen these documents, and was not given an opportunity to respond to the material ([82], [87]). The appellant described the information in the review material as being a “character assessment” at best, and “character assassination” at worst ([87]).
Held:
(i) Nettle and Gordon JJ found that a fair-minded lay observer, cognisant of the key requirements of the statutory scheme, “might have apprehended that the IAA might not have brought an impartial mind to the review, by reason of the irrelevant and prejudicial material which the IAA was mandated to consider”. That material “might have led the decision-maker to make a decision otherwise than on the legal and factual merits of the case because it might have led the decision-maker to the view that the appellant was not the sort of person who should be granted a visa or that the appellant was not a person who should be believed”. As a result, a fair-minded lay observer “might have apprehended that this might have had an effect on the decision-maker, even if that effect was subconscious” ([51]).
(ii) Nettle and Gordon JJ noted that it did not matter whether the IAA actually had such a bias, or whether the IAA in fact put the prejudicial information aside, emphasising that the risk of subconscious bias “cannot be cured by putting […] information aside” ([97]). Moreover, the consideration of this possibility would be “difficult to reconcile with the statutory scheme”, as the IAA is required to consider information which the Secretary has “endorsed” as being relevant to the IAA’s task ([98]).
(iii) Edelman J agreed with Nettle and Gordon JJ, finding that the 48 pages provided to the IAA contained “irrelevant and prejudicial material involving prejudicial opinion, innuendo and tacit suggestion”, and that a “fair-minded lay observer would consider that the prejudice arising from any consideration of this irrelevant material could be substantial” ([110]).
(iv) In describing the “double might” test for apprehension of bias, Edelman J emphasised that the “notion of independence and impartiality is not limited to prejudgment of [an] issue”, but rather, “can include any other ‘preponderating disposition or tendency’ and can arise by matters that create emotions of sufficient strength to sway opinion: ‘affection or enmity’, ‘fear, hatred or love’” (citations omitted) ([132]). His Honour referred to Webb v The Queen (1994) 181 CLR 41 (at 74), wherein Deane J set out four overlapping categories of apprehended bias – the fourth comprising “cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias” ([134]).
(v) Edelman J set out three matters which “combine to compel the conclusion that a fair-minded lay observer might reasonably apprehend that the [IAA] might not have brought an impartial and independent mind to the issue to be decided” (at [137]-[141]):
- First, the material provided to the IAA was qualitatively and significantly prejudicial to an assessment to the appellant’s character on grounds other than legal grounds;
- Second, the fair-minded lay observer would expect the IAA to be aware that the material was provided on the basis that the Secretary considered it relevant, and that the legislation required the IAA to consider that material; and
- Third, although the material was clearly irrelevant, the fair-minded lay observer might reasonably have expected from the statements made by the IAA that the IAA might have been influenced by the information within the material, given the IAA made no suggestion in its reasons that any of the material was irrelevant, disregarded or given no weight.
(vi) In dissent, Kiefel CJ and Gageler J said they were “unable to conclude that a hypothetical fair-minded lay observer, acting reasonably, would entertain as realistic the possibility that looking at anything contained in the 48 pages [of irrelevant material] might in any way have diverted the [IAA] from its statutory function of undertaking an independent and impartial evaluation on the merits of whether or not the appellant was a person in respect of whom Australia has protection obligations” (at [40]). Just as the 48 pages “plainly […] had nothing to do with the merits of the decision” made by the Minister, the IAA must have “looked at and […] consciously discarded as irrelevant” the pages in the course of undertaking its review ([39]). Most of the information contained in the pages “fleshed out” the references to the conviction and pending charges disclosed by the appellant, and was not “so shocking” as to give rise to a “realistic possibility” that it would “play on the subconscious” of the IAA so as to compromise its ability to engage in its evaluation “untainted by the dashes of colour added by the contents of [the] pages” ([41], [43]).
Read the decision on the High Court of Australia website. |
| | Drama Unit Pty Ltd v Fearndale Holdings Pty Ltd (Administrator Appointed) & Anor [2019] NSWCA 312
17 December - Meagher JA, Brereton JA, Emmett AJA
In brief: The Court of Appeal allowed in part an appeal from a decision of the Supreme Court, which found that the respondent landlord had validly terminated a commercial lease agreement with the appellant. The Court of Appeal held that, although the respondent validly terminated the lease, its refusal to allow the appellant into possession of the premises prior to that termination constituted a wrongful eviction, disentitling the respondent to payment of rent (but not outgoings) for that period.
Facts: The appellant, Drama Unit Pty Ltd (Drama Unit), leased a clay and shale quarry from the respondent landowner, Fearndale Holdings Pty Ltd (Fearndale) (which, by the time occupation of the land became available, had gone into administration). The parties agreed that the term of the lease would commence on the date that the former tenant’s right to possession was terminated, which occurred on 25 June 2018 ([3]).
Clause 7.3(4) of the contract required Drama Unit to ([2], [35], [119]):
- obtain any consents or approvals which might be necessary or appropriate for its business “prior to entering this Lease” (cl 7.3(4)(b) – Limb 1);
- maintain and comply with “any such” consents and approvals “during the Term” (cl 7.3(4)(b) – Limb 2); and
- provide a copy of any consent or approval to Fearndale “prior to occupation of the Premises” (cl 7.3(4)(d))
Drama Unit failed to obtain two consents – an authorisation under the Mining Act 1992 (NSW) and a licence under the Protection of the Environment Operations Act 1997 (NSW) ([37]). On this basis, Fearndale refused to allow Drama Unit into occupation of the premises, served notices requiring Drama Unit to remedy its breaches relating to the consents, and purported to terminate the lease. In earlier proceedings before the Supreme Court, Black J held that, at the time the termination notice was served, Drama Unit had not been given reasonable time to remedy the alleged breaches ([6]-[7]).
Following that decision, in January and February 2019, Fearndale issued 4 further breach notices and a written demand for payment of outgoings, all while continuing to deny possession to Drama Unit. This was followed by 6 notices of termination in March 2019 – 4 relating to the ongoing failure to obtain, maintain and provide the missing consents, 1 for Drama Unit’s failure to pay rent, and 1 for its failure to pay outgoings ([8]). Fearndale sought a declaration in the Supreme Court that it had effectively terminated the lease, as well as orders for payment of rent and outgoings. This time, Fearndale was successful, and Drama Unit appealed ([9]).
The issues on appeal were (at [10]):
(i) Whether Fearndale was entitled to recover rent and outgoings where it had refused to give possession of the premises to the tenant.
(ii) Whether Drama Unit was in breach of the lease for failing to hold the consents and authorities in January 2019 (when the breach notices were issued), and to provide copies of them to Fearndale.
(iii) Whether the breach notices did not satisfy s 129(1) of the Conveyancing Act 1919 (NSW) (Conveyancing Act) because they did not specify the “reasonable time” in which Drama Unit was required to remedy the asserted breaches.
Held:
The appeal was allowed, in part, on the following bases:
Whether refusal to give possession wrongful eviction; effect on requirement to pay rent
(i) The position in Australia at common law is that, if a tenant is wrongfully evicted from any part of rented premises by its landlord, the whole of the rent is suspended for as long as that eviction lasts. The lease in this case, properly construed, did not exclude the application of that common law rule (Meagher JA at [25], [28]).
(ii) Fearndale’s refusal to give possession of the premises to Drama Unit was not justified by the terms of the lease.
- In arguing that it was entitled to withhold possession, Fearndale relied on cl 7.3(4)(d) (see above) and cl 14.1 (a covenant for quiet enjoyment) (Meagher JA at [46]).
- Fixing the time for compliance with cl 7.3(4)(d) as “prior to occupation of the Premises” did not render compliance with that paragraph a condition precedent to the right to take possession. Rather, cll 15.2 and 15.2 of the lease separately defined “events of default” and provided, subject to s 129 of the Conveyancing Act, for circumstances in which the landlord could re-enter and take possession (Meagher JA at [48]).
- Further (as discussed below), cl 7.3(4)(d) only applied to consents and approvals already obtained in accordance with cl 7.3(4)(b). The appellate judges agreed this meant there could be no breach of this section (Meagher JA at [48], Brereton JA and Emmett AJA agreeing at [71], [116], [134]).
- Clause 14.1 provided as follows: “If the Tenant performs and observes all its obligations under this Lease, it may use the Premises without interruption or disturbance from the Landlord […]”. This wording was not interpreted as rendering the covenants in cl 7.3(4) and cl 14.1 interdependent, but rather, as ensuring that, in the event of a breach by the tenant, “the enforcement by the landlord of its rights in relation to that default … [would] not constitute, or result in, a breach of the covenant for quiet enjoyment” (Meagher JA at [46], [49], [63])
- Accordingly, Fearndale was wrong to treat compliance with cl 7.3(4)(d) as a condition precedent to Drama Unit’s entitlement to possession (Meagher JA at [48]-[49], [51], Brereton JA agreeing at [71]).
(iii) Fearndale’s refusal to allow Drama Unit to take possession of the premises constituted an eviction in that it was “something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises” (Upton v Townend [1855) 17 CB 30; 139 ER 976, per Jervis CJ). It was irrelevant that Fearndale’s reliance on cl 7.3(4)(d) may have proceeded from a bona fide but erroneous construction of the lease. Fearndale nevertheless intended by its conduct to deny Drama Unit the benefit of the enjoyment of the whole of the premises (Meagher JA at [51]-[54], Brereton JA and Emmett AJA agreeing at [71] and [116]).
Distinction between obligations to pay rent and outgoings
(iv) Fearndale was not entitled to recover rent, which was suspended by the eviction ([52]), but was entitled to outgoings for the period in which it refused possession (Meagher JA at [64]; Brereton JA at [73]-[78]; Emmett AJA at [115]-[118]).
Whether requirements of s 129, Conveyancing Act satisfied
(v) The breach notices issued to Drama Unit did not contravene s 129 of the Conveyancing Act. Each notice specified the breach complained of and required Drama Unit to remedy that breach “within a reasonable time”. It was not necessary for Fearndale to specify a “fixed” reasonable time or a date by which the breaches must be remedied (Meagher JA at [58]-[61], Brereton JA and Emmett AJA agreeing at [71] and [130]).
Which breach notices were valid
“Obtain... prior to entering this Lease” (cl 7.3(4)(b) – Limb 1)
(vi) All three judges agreed that, to the extent this limb of cl 7.3(4)(b) purported to impose an obligation to be performed before the lease agreement was entered into, it could not be legally effective to do so (Meagher JA at [40], Brereton JA and Emmett AJA agreeing at [82] and [124]).
(vii) However, their Honours disagreed as to how else to construe this wording. Meagher JA found that the provision should be read and understood as either a promise or a warranty that “at the time the lease was entered into the lessee held the relevant consents and approvals” (at [40]). Brereton JA expressly disagreed with this construction, preferring to read the obligation to obtain and maintain the consents and approvals as arising on the date the parties agreed the term of the lease had commenced – being 25 June 2018 (at [82], [87]).
(viii) As a result, both Meagher JA and Brereton JA found that, at the time the breach notices were issued, Drama Unit was in breach of the first limb of cl 7.3(4)(b), entitling Fearndale to terminate the tenancy (Meagher JA at [45], [66]; Brereton JA at [87]-[88]).
(ix) Conversely, Emmett AJA found that the words “prior to entering this Lease” should be construed as meaning “prior to occupation of the Premises” – an event which never occurred (at [124]). On this basis, Emmett AJA found that Drama Unit’s failure to obtain the consents or approvals could not be a breach in circumstances where possession and occupation had been refused (at [126]-[127]).
“Maintain… during the Term” (cl 7.3(4)(b) – Limb 2)
(x) While Emmett AJA found there was no breach of the first limb of cl 7.3(4)(b), he concluded that Drama Unit was nonetheless in breach of the second limb. This stemmed from his Honour’s finding that the requirement to “maintain” consents and approvals applied, not only to consents and approvals “actually obtained in satisfaction of the first limb”, but to “any such […] consents and approvals of the nature referred to in the first limb” ([128]-[129]). On this basis, Emmett AJA found, the breach notices based on cl 7.3(4)(b) were, as a whole, effective ([133]).
(xi) The other justices agreed with this construction, Meagher JA affirming the conclusion of the primary judge that, from the beginning of the lease term on 25 June 2018, “Drama Unit was required […] to have in place the consent and approvals necessary for it to conduct its proposed mining business on the land” (Meagher JA at [43]-[45], Brereton JA agreeing at [87]).
“Provide… prior to occupation of the Premises” (cl 7.3(4)(b))
(xii) The breach and termination notices issued in respect of Drama Unit’s failure to “provide” relevant consents to Fearndale were not effective in circumstances where Drama Unit (a) never went into occupation of the premises, and (b) did not hold either of the consents which Fearndale complained had not been provided. In contrast to the construction preferred for Limb 2 of cl 7.3(4)(b), this meant construing cl 7.3(4)(d) as only “engaged” in relation to “existing” consents or approvals already obtained under cl 7.3(4)(b) (Meagher JA at [48], [65], Emmett AJA at [134]).
Read the decision on the NSW Caselaw website.
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| Jong v Advanced Dental Services Pty Ltd [2019] NSWCA 318
20 December 2019 - Basten JA, Meagher JA, Brereton JA
In brief: The Court of Appeal dismissed an appeal from a decision of the District Court, where the trial judge had dismissed the appellant’s claim that the respondent repudiated a commercial lease agreement by vacating the premises after validly exercising an option to renew the lease. Both the District Court and a majority in the Court of Appeal found that the respondent did not validly exercise the option to renew, and was therefore entitled to vacate the premises.
Facts: The appellant, Ms Jong, owned premises which she leased to the respondent, Advanced Dental Services Pty Ltd. The term was for 5 years ending on 26 May 2014, with two options to renew, each for a 5 year period ([1]). On 6 January 2014, the appellant emailed the respondent noting that the option to review needed to be exercised 3-6 months prior to the end of the term, and asking whether the respondent would be vacating the premises or “re-signing” for another 5 years. The respondent replied on the same day, saying: “Yes I would like to renew the lease for another term” ([13]-[14], [42]-[43]). Although some further discussion as to the terms of the lease occurred, no further lease was executed, and the relationship between the parties broke down due to disputes over repairs and maintenance ([56], [58]). The respondent gave notice of its intention to vacate the premises, and did so on 28 February 2015 ([1]).
The appellant commenced proceedings in the District Court, alleging that the respondent had exercised the option to renew the lease and claiming damages arising from the purported repudiation in the amount of $147,000 ([2]). The trial judge in the District Court dismissed the appellant’s claim on the basis that the respondent did not validly exercise the option to renew ([3]-[4]).
Held:
The Court of Appeal upheld the District Court’s finding, giving the following reasons:
(i) Meagher JA found that the respondent did not exercise the option to renew because email correspondence between the parties was not sufficiently unequivocal. While the first paragraph of the appellant’s email referred expressly to the option to renew, the enquiry about “re-signing” in the second paragraph could also be reasonably understood as accommodating a “re-signing” resulting from a negotiated renewal ([50]). Further, the respondent’s answer took the form of a statement of what he would “like” to do, describing only a “present state of inclination or preference” – it was not “a communication of absolute and unqualified acceptance of the offer of renewal and [did] not purport to constitute an exercise of the option” (at [51]).
(ii) Brereton JA agreed with Meagher JA in concluding that the option to renew was not validly exercised. However, his Honour added that this conclusion was further supported by the subsequent conduct of the parties, which indicated that the parties “neither intended nor understood the correspondence of 6 January 2014 to operate as an effective exercise of the option, as distinct from an expression of current intention to do so sometime in the future” (at [54]). Examining subsequent emails between the parties, Meagher JA observed that “both parties were proceeding on the basis that whether or not the option would be exercised was still under consideration and discussion” (at [68]).
(iii) Basten JA found separately that the option to renew the lease had been clearly and unequivocally exercised through the email exchange on 6 January 2014 ([15]-[19]), and that the parties’ subsequent conduct was consistent with each then believing that this had occurred ([26]). However, since no lease was subsequently registered and the appellant did not seek any equitable relief, Basten JA nonetheless found there was no basis on which to enforce the terms of the renewed lease. It was on this basis his Honour found that the result reached by the trial judge could be upheld (at [31], [36]).
Read the decision on the NSW Caselaw website.
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| Ireland v WG Riverview Pty Ltd [2019] NSWCA 307
20 December 2019 - Bell ACJ, Macfarlan JA, Barrett AJA
In brief: The Court of Appeal allowed an appeal from a decision of the District Court which found that incorrect identification of a bull’s sire in an auction catalogue constituted misleading and deceptive conduct. The Court of Appeal held that this statement was a representation as to the auctioneers’ belief, not a representation of fact, and did not constitute misleading or deceptive conduct.
Facts: On 11 September 2015, the respondent, WG Riverview Pty Ltd (Riverview), purchased a bull at an auction conducted by the appellants, Mr and Mrs Ireland (the Irelands). Mr Graham, Riverview’s principal and a veterinarian specialising in large animals, attended the auction on Riverview’s behalf. The bull, known as K34, was said in the auction brochure to have been sired by Granite Ridge Thomas (GRT) – a stud bull. However, subsequent DNA testing revealed this was not the case, decreasing the value of the bull ([36]-[37]).
There was a disclaimer at the beginning of the brochure that stated ([10], [47]):
“Whilst all due care and attention has been paid to accuracy in the compilation of this catalogue and the information neither the vendors, selling agents or representatives thereof assume any responsibility what so ever for the correctness, use or interpretation of the information of animals included herein.”
In the District Court, the primary judge found that the Irelands had engaged in misleading and deceptive conduct upon which Riverview relied in purchased K34, and that the Irelands were liable to pay damages to Riverview to compensate it for its loss. Damages were assessed at $200,191.88, comprising the difference between the price Riverview paid for K34 and his actual value, plus the difference between the value K34’s offspring would have had (had he been sired by GRT) and their actual value, less the marginal difference between the costs of breeding stud cattle and those of breeding commercial cattle ([39]).
The principal issues on appeal were whether ([41]-[42]):
(i) the primary judge failed to consider the character of the Irelands’ conduct as a whole, with particular regard to the impact of the disclaimer in the auction catalogue, when considering whether their conduct had been misleading or deceptive; and
(ii) whether the primary judge erroneously assessed damages by awarding the respondent its expectation loss, that is, the profit it would have made if K34 had been sired by a stud bull.
Held:
The Court of Appeal set aside the District Court’s finding, giving the following reasons:
Whether conduct misleading or deceptive
(i) Macfarlan JA delivered the leading judgment, finding Riverview failed to establish that the Irelands engaged in misleading or deceptive conduct (Macfarlan JA at [64]-[80], with Bell ACJ and Barrett AJA agreeing with his reasons at [1] and [91]).
(ii) The parties to the transaction were intelligent, experienced commercial people. Mr Graham had extensive experience in the breeding, purchase and sale of Angus cattle, and would have at least presumed that the Irelands had not DNA tested K34, as this was not common practice in the industry. Given this, it could not be said that the Irelands held themselves out as having any certain means of identifying K34’s sire (Macfarlan JA at [70]-[71]).
(iii) The character of the transaction was a sale by experienced commercial parties to another in which the sellers could reasonably expect that the purchaser would read the whole of the sale catalogue (Macfarlan JA at [72]).
(iv) The disclaimer was in a prominent part of the catalogue, presented in a prominent fashion, and expressed in clear terms (Macfarlan JA at [73]).
(v) Consideration of the whole of the circumstances, including the nature of the parties, the character of the transaction and the contents of the auction catalogue, led inevitably to the conclusion that the Irelands did not represent that, as a matter of certain fact, K34’s sire was GRT. Whilst the Irelands may have represented that they had taken all reasonable care to confirm that that was so and that they believed it to be the case, neither of those representations were relied upon or, if they had been, would have been held to be untrue on the basis of the evidence before the primary judge (Macfarlan JA at [74]).
(vi) This conclusion was supported by two other circumstances. First, certain other statements in the auction catalogue were expressly identified as statements of certain fact guaranteed by the Irelands. The lack of such a guarantee in relation to the bulls’ sires “tend[ed] to confirm the conclusion […] that the Irelands did not make a representation of certain fact on that topic”. Second, Riverview’s “cautious statements” in the disclaimer in its own sale catalogues “indicated the likelihood of a reasonable person in the respondent’s position being alive to the effect of the equally cautious statements in the disclaimer in the Irelands’ catalogue” ([75]-[77]).
Whether damages should have included expectation loss
(vii) As the Irelands were entitled to succeed on their appeal on liability, the correctness of the damages assessment at first instance did not strictly arise. Still, Macfarlan JA noted that damages for expectation loss are not usually awarded for contravention of the statutory misleading and deceptive conduct provisions: Marks v GIO Australia Holdings (1998) 196 CLR 494; [1998] HCA 69 at [39] to [46]; Weatherill v Bartlett [2017] NSWCA 175 at [22]. Rather, damages of that type are awarded in claims for breach of contract (Macfarlan JA at [81]-[83]).
(viii) In any event, the evidence would not have supported an award of damages on that basis because there was no evidence of the number and quality of the progeny that an average stud bull would have produced in the relevant period. Further, on the factual findings at first instance, K34 was not average in this respect, but was said to be particularly “productive” (Macfarlan JA at [84]).
(ix) In these circumstances, the only award of damages that the evidence warranted was one for the difference between K34’s value as a commercial bull and the price paid for him as a stud bull (Macfarlan JA at [88]).
Supplementary observations on misleading or deceptive conduct
(x) Although Bell ACJ agreed with Macfarlan JA’s reasons and orders, his Honour made a number of supplementary observations in relation to disclaimers and misleading or deceptive conduct, and the principle that “some representations which present on one level as representations of fact may, properly characterised, be no more than representations of honestly held belief” (Bell ACJ at [2]).
(xi) In particular, Bell ACJ cited the analysis in Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 at 88, in which the Full Court of the Federal Court said: “An expression of opinion which is identifiable as such conveys no more than that the opinion expressed is held and perhaps that there is basis for the opinion. At least if those conditions are met, an expression of opinion, however erroneous, misrepresents nothing” (at [24]).
(xii) Further, in the context of misleading or deceptive conduct, Bell ACJ suggested “there is no relevant difference in principle […] between the expression of an opinion and a statement of belief” ([29]).
(xiii) The case law on misleading or deceptive conduct requires that the characterisation of a statement as either a statement of belief or opinion OR a statement of fact is to be viewed from the perspective of the “ordinary or reasonable” audience to whom the statement is directed (Bell ACJ at [30]).
(xiv) It follows that there will be cases where a statement made by a person honestly believing it to be true will give rise to liability, notwithstanding that person’s honest belief in its truth because, to the target audience, that statement presented as one of fact, and not of opinion or belief (Bell ACJ at [33]).
(xv) On the other hand, where it is established that a statement is or must have been understood by its target audience as one of opinion or belief, even though presenting at one level as one of fact, liability will generally depend upon an assessment as to whether or not the belief or the opinion was honestly held and “perhaps” whether or not the maker had a reasonable basis for the belief or opinion. Other than statements as to future matters (where a different statutory presumption is engaged), it will then be for a plaintiff to establish the lack of reasonable basis for belief if misleading or deceptive conduct is to be established (Bell ACJ at [34]).
(xvi) The facts of this appeal highlight that the “Global Sportsman analysis” may apply equally to statements that present as ones of opinion AND to statements that “present as matters of objective fact but which, upon proper analysis, viewed from the perspective of their target audience, are in fact statements of nothing more than the maker’s belief” (Bell ACJ at [35]).
Read the decision on the NSW Caselaw website.
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| NSW Court of Appeal - Bulletin
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| 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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| Ireland v WG Riverview Pty Ltd [2019] NSWCA 307
TRADE PRACTICES – misleading or deceptive conduct – sale of bull – auction catalogue – incorrect description of bull’s sire – disclaimer by vendor of correctness of information included in auction catalogue – proper characterisation of misleading or deceptive conduct – whether statement as to bull’s sire was one of fact or belief
TRADE PRACTICES – damages for misleading or deceptive conduct – damages awarded for difference between stud and commercial cattle value of subject bull’s progeny – whether primary judge awarded damages for expectation loss
Read the decision on the NSW Caselaw website.
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| Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321
WORKERS’ COMPENSATION – Entitlement to lump sum compensation – Causal relation between injury and incapacity - The extent to which the first respondent’s present permanent impairment is the result of the first injury as distinct from the second injury.
ADMINISTRATIVE LAW – Jurisdictional error or error of law on the face of the record – Whether the Appeal Panel of the Workers Compensation Commission of NSW in certifying that the percentage whole person impairment of the first respondent as a result of the first injury was 6% committed jurisdictional error or an error of law on the face of the record.
Read the decision on the NSW Caselaw website.
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| Director of Public Prosecutions (NSW) v Hamzy [2019] NSWCA 314
ADMINISTRATIVE LAW – judicial review – supervisory jurisdiction – judgment of District Court on appeal from Local Court – criminal jurisdiction – where conviction and sentence set aside and permanent stay of criminal proceedings ordered – whether District Court misapprehended nature and scope of power to prevent abuse of process – whether District Court misconstrued double jeopardy provision in Crimes (Administration of Sentences) Act 1999 (NSW), s 63 – whether jurisdictional error established
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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