| | | | | NCAT Legal Bulletin Issue 1 of 2021
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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 features case summaries of recent decisions from the New South Wales Court of Appeal, Supreme Court of New South Wales, Supreme Court of Victoria and the Federal Court of Australia, including:
- Ghosh v Health Care Complaints Commission [2020] NSWCA 353 – in which the Court of Appeal allowed an appeal by Dr Ratna Ghosh from the decision of the Occupational Division of NCAT, which had the effect of cancelling her registration as a medical practitioner, and disqualifying her from being reregistered for a period of 18 months. The matter was remitted to the Tribunal to be reheard by a differently constituted panel.
- Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 [2020] NSWCA 327 – in which the Court of Appeal upheld the decision of the Appeal Panel of NCAT dismissing an application for an order that a claim for breach of statutory warranties brought by the respondent was commenced out of time. The Court found that two purported interim occupation certificates did not satisfy the statutory definition of such certificates, and therefore could not authorise the occupation and use of the whole of the building for the purpose of the running of the limitation period under the Home Building Act 1989 (NSW).
- Coleman v Health Care Complaints Commission of NSW [2020] NSWCA 337 – in which the Court of Appeal allowed an appeal by Dr Jeremy Coleman, a physician, who sought a stay of his disciplinary proceedings at NCAT regarding unsatisfactory professional conduct relating to the sexual and indecent assault of his patients, until his criminal proceedings, on similar matters, could be resolved.
- CXZ v Children’s Guardian [2020] NSWCA 338 – in which the Court of Appeal allowed the appeal of CXZ, who sought to have overturned the decision of the respondent Children’s Guardian, which rejected his application for a working with children check.
- Livers v Legal Services Commissioner [2020] NSWCA 317 – in which the Court of Appeal allowed the appeal of Mr Peter Livers against a finding by the Tribunal of professional misconduct, in the course of his profession as a legal practitioner. The Court set aside the decision of the Tribunal, because its finding was not supported by the evidence.
- Re Kara (No 7) [2021] NSWSC 22 – in which the NSW Supreme Court used its parens patriae jurisdiction to make a secure accommodation order for a young person, known by the pseudonym Kara.
- Ling Ye She v RMIT University [2021] VSC 2 – in which the Supreme Court of Victoria allowed an appeal by Ling Ye She, who made various complaints about her studies at the respondent, RMIT University. The Supreme Court found there was an absence of procedural fairness during proceedings brought by the appellant and dismissed at Dandenong Magistrates Court, and remitted the matter back to a differently constituted Magistrates Court.
- McNamara (Barngarla Southern Eyre Peninsula Native Title Claim) v State of South Australia [2020] FCA 1875 – in which the Federal Court of Australia dismissed an application for a native title determination on behalf of the Barngarla people, as it concerned land that was subject to a separate native title claim commenced on behalf of the Nauo people in 2016, and the matter should be decided in one proceeding. Further, the applicant had not advanced any new submissions that had not been assessed in a previous application.
This issue also provides links to a number of summaries published separately by the NSW Court of Appeal Decisions of Interest Bulletin.
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New South Wales Court of Appeal
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| 22 December 2020 - Bell P, Payne JA, Stevenson J
In sum: The Court of Appeal allowed an appeal by Dr Ratna Ghosh (Dr Ghosh) from the decision of the Occupational Division of NCAT, which had the effect of cancelling her registration as a medical practitioner, and disqualifying her from being reregistered for a period of 18 months. The matter is remitted to the Tribunal to be reheard by a differently constituted panel.
Facts: Pursuant to s 149C of the Health Practitioner Regulation National Law 2009 (NSW) (the National Law) the Health Care Complaints Commission (the HCCC) sought to cancel the registration of Dr Ghosh on the basis of various instances of unsatisfactory professional conduct, professional misconduct, impairment detrimentally affecting her capacity to practise the profession, and incompetence ([1]).
At a telephone directions hearing on 25 March 2020, at which Dr Ghosh did not appear, the Tribunal “dispensed with” the planned 30 March 2020 hearing and decided the matter would be determined on the papers. The order for the determination of the complaint on the papers provided for the service on Dr Ghosh of the HCCC’s submissions and evidentiary material, but made no provision for the service by Dr Ghosh of any responsive submissions. Dr Ghosh denied receiving notice of the orders made on 25 March 2020 ([49]-[52]).
The Tribunal published on 15 April 2020 its reasons for deciding that it would in effect cancel Dr Ghosh’s registration as a health practitioner, and disqualify her from being reregistered for a period of 18 months. The Tribunal held that Dr Ghosh had “behaved in a dishonest, vindictive and retaliatory manner to colleagues who had made professional complaints about her or provided expert evidence in matters considered by the [HCCC], the Medical Council of NSW or the Tribunal.” This was not alleged in any of the complaints made by the HCCC. Dr Ghosh appealed to the Court of Appeal against the decisions of the Tribunal to proceed on the papers, to uphold the HCCC’s complaints and to terminate the stay of the 15 April 2020 orders ([2], [168], [169]).
Held (allowing the appeal):
Grounds 1 and 2
(i) By reason of non-compliance with provisions of the National Law, the Tribunal had no power to proceed with the inquiry, and, in particular, had no power to proceed to deal with the HCCC’s complaints on the papers. The s 165J(1) right of a health practitioner to “attend” an inquiry under the National Law is more than an entitlement to participate, but a right to be actually present, physically or virtually. The concomitant entitlement to be legally represented at the inquiry is an entitlement to have a legal representative so present at the inquiry, and the right to attendance and representation necessarily carries with it a right to be heard at that inquiry ([77], [87]-[89]).
(ii) Section 165J(3) provides an exception, enabling the Tribunal to proceed in the absence of a practitioner only if the practitioner has been given notice of the inquiry, set at 14 days by s 165I. These rights reflect the fact that disciplinary proceedings at NCAT and under the National Law carry a risk of serious consequences for the practitioner, and prevail over the Tribunal’s power under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) to dispense with a hearing ([91]-[92], [95], [101], [104]).
(iii) The Tribunal’s s 165K power to conduct a “hearing for proceedings under [the National Law]… wholly or partly in private” is not a power to proceed in the absence of any of the parties. In the present case, there was no suggestion that the Tribunal formed, or could have formed, the view that the “public interest for reasons connected with the subject matter of the proceedings” required this matter to be dealt with in private ([99]-[100]).
(iv) Had the set hearing date been maintained, and had Dr Ghosh not appeared at that hearing, it would have been open to the Tribunal, under s 165J, to proceed with a hearing in her absence. However Dr Ghosh was deprived, by the 25 March 2020 orders, of the right to attend the inquiry and be legally represented. Compliance with the provisions in ss 165I and 165J was a precondition to the valid exercise of the Tribunal’s powers. For these reasons, the appeal must be allowed, and the Tribunal’s decisions set aside ([108]-[113]).
Ground 3
(v) Ground 3 was upheld, as the Tribunal erred in law by failing to consider and apply the requirements of s 50, even if it had applied. There were clear contested matters of fact and opinion, and even if, in the unlikely circumstance, Dr Ghosh did not wish to cross-examine any of the doctors whose evidence was relied upon by the HCCC, the medical members of the Tribunal would ordinarily have been expected to have had questions ([114], [118]).
Grounds 4 and 8
(vi) The lack of procedural fairness, established in Grounds 1 and 2, could not be cured by ordering that Dr Ghosh must “show cause” why the orders should not be made. This procedure was not an appropriate substitute for Dr Ghosh’s right to participate in a public hearing. This is because the Tribunal had “already made up its mind” and nothing Dr Ghosh could say or do thereafter could affect the outcome ([66], [123]-[126]).
Ground 5
(vii) The Tribunal erred in its characterisation of the complaints. It said Complaints 1-5 were of professional misconduct, when they were of unsatisfactory professional conduct. In relation to Complaint 1, the Tribunal erroneously found Dr Ghosh had engaged in “unprofessional conduct,” rather than “unsatisfactory professional misconduct” ([134]-[135]).
(viii) The Tribunal purported to address Complaint 6, but in fact copied and pasted the same reasoning that it gave for Complaint 5. It was the most serious complaint, of
“professional misconduct”, but the Tribunal concluded Dr Ghosh had engaged in “unsatisfactory professional conduct”. Therefore the correct complaint was not dealt with, which should have been obvious to the principal author of the reasons, and to the other members of the Tribunal, who should not have joined in reasons without carefully reading and considering them. Further, the purported “reasoning” process was inadequate ([139]-[140], [146], [150]).
(ix) The Tribunal mischaracterised Complaint 7. It found that it was made out on the basis that Particular 3 was established, but it was not open to the Tribunal to make this finding without first finding either Particular 1 or 2 established, which it did not do. Further, because Complaint 8 was contingent upon Complaint 7, it was also not open to the Tribunal to uphold that Complaint either ([161], [166]).
(x) In the course of its reasoning for Complaint 7, the Tribunal found that Dr Ghosh had “behaved in a dishonest, vindictive and retaliatory manner to colleagues”. These were not matters that the HCCC had alleged, and Dr Ghosh was given no opportunity to meet the charge, which was not supported by evidence and for which the behaviour in question was not set out. No Court or Tribunal should ever conclude that a person has “behaved in a dishonest, vindictive and retaliatory manner” without such matters being clearly alleged and closely particularised, and without fully exposing the decision-maker’s reasoning process ([168]-[173]).
Grounds 6 and 7
(xi) The Tribunal failed to meet the requirements of procedural fairness and satisfy the minimum characteristics that a Tribunal’s reasons must possess under the National Law with regards to Complaint 8. The Tribunal merely repeated the complaint and asserted without reasoning that it had been made out ([175], [177], [185]-[187]).
Read the decision on the NSW Caselaw website.
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| 15 December 2020 - White JA, Emmett and Simpson AJA
In sum: The Court of Appeal upheld the decision of the Appeal Panel of NCAT dismissing an application for an order that a claim for breach of statutory warranties brought by the respondent was commenced out of time. The Court found that two purported interim occupation certificates did not satisfy the statutory definition of such certificates, and therefore could not authorise the occupation and use of the whole of the building for the purpose of the running of the limitation period under the Home Building Act 1989 (NSW) (HBA).
Facts: The appellant, Dyldam Developments Pty Ltd (Dyldam), is a property developer and construction company which carried out the construction work for the development of a strata property owned by the respondent (the Owners Corporation). In September 2011, two interim occupation certificates were issued by the principal certifying authority, Dix Gardner, a private certifier engaged by Dyldam, and in October 2011 a final occupation certificate that applied to the “Whole” of the building works was issued ([4], [19]-[20]).
In October 2018 the Owners Corporation filed a home building application against Dyldam at the Tribunal in relation to the building works carried out at the site, alleging certain breaches of statutory warranties under the HBA. Dyldam contends that the proceedings are barred by s 18E of the HBA, which provides that proceedings for breach of a statutory warranty must be commenced within seven years of the completion of the relevant works, which is defined as the date of issue of the final occupation certificate. The Appeal Panel of the Tribunal upheld the Tribunal’s decision dismissing Dyldam’s claim ([3], [96]).
Held (granting leave to appeal and dismissing the appeal):
(i) The legislative scheme governing the review of occupation certificates does not prohibit the Tribunal from undertaking the inquiry as to whether the purported occupation certificates were either interim or final, and what was their effect for the purpose of the HBA. This question falls within the Tribunal’s jurisdiction under the HBA ([57], [74], [92]).
(ii) Had the challenge to the validity of the occupation certificates been collateral, the Tribunal would not have been precluded from reviewing them where the invalidity arose on the face of the certificates. However the challenge was not collateral, but rather central to the issue of the Tribunal’s jurisdiction ([57], [66], [71]-[72]).
(iii) The Tribunal was both obliged and authorised to assess the status of the certificates in determining its jurisdiction to entertain the claim. Sections 48K and 48L of the HBA have the combined effect of making the Tribunal the primary body for resolving building claims within its jurisdiction. This jurisdiction is expressly dependent upon whether the occupation certificates authorised the occupation and use of the whole building ([45]-[47], [57]-[60], [74]).
(iv) An interim occupation certificate could only be issued in respect of a partially completed building, or for the commencement of a new use of part of a building, however this was not the case at the time Dyldam issued the interim occupation certificates. The purported interim occupation certificates did not satisfy the definition in s 109H(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and therefore did not authorise the use and occupation of the whole of the building for the purpose of the running of the limitation period under the HBA ([34], [90]-[93], [109]).
(v) The interim occupation certificates were also issued in contravention of s 109H(2) of the EPA Act, which sets out preconditions to issue. It was not necessary for the Court to decide whether Parliament intended that a contravention of s 109H(2) would render the certificates invalid and thereby not authorise the use and occupation of the whole of the building ([89]).
Read the decision on the NSW Caselaw website.
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| 17 December 2020 - Macfarlan and Meagher JJA, Simpson AJA
In sum: The Court of Appeal allowed the appeal of Dr Jeremy Coleman (Dr Coleman), a physician, who sought a stay of his disciplinary proceedings at NCAT regarding unsatisfactory professional conduct relating to the sexual and indecent assault of his patients, until his criminal proceedings, on similar matters, could be resolved.
Facts: Pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law) the appellant Dr Coleman’s registration as a physician was formally suspended due to professional misconduct including inappropriate conduct of a sexual nature, against six of his patients. Dr Coleman faced criminal charges for these offences, in respect of 46 of his patients but was found not guilty of 50 of the 66 counts. In February 2019 Dr Coleman was indicted for 14 of the 16 counts for which the jury could not reach a verdict. None of the counts related to the six patients subject to the Health Care Complaints Commission’s (HCCC) disciplinary application. Dr Coleman sought a stay in proceedings at NCAT pending resolution of the criminal proceedings. The Tribunal refused his application, and he appealed to the Court of Appeal ([1], [3]-[4], [7]-[8], [10]-[11]).
Held (granting leave to appeal, allowing the appeal and ordering a stay):
(i) Although s 145G of the National Law allows complaints under the Law to be dealt with by the Tribunal “even though the practitioner… concerned is the subject of proposed or current criminal or civil proceedings relating to the subject-matter of the complaint,” the Tribunal retains power to stay proceedings in the Tribunal if the interests of justice require it. A stay is warranted where the person concerned “is at risk of prejudice in the conduct of his or her defence in the criminal trial” ([27]).
(ii) At least one issue to be addressed at the Tribunal will be the same as one raised in the foreshadowed criminal charges: the sexual assault of “Patient B”. If the Tribunal matter proceeds, the potential prejudice to Dr Coleman exists whether or not the criminal charges regarding Patient B proceed. This is because the complaints against Dr Coleman in the Tribunal extend to allegations of failures to keep adequate medical records in relation to Patient B and other patients, allegations which arguably overlap with contentions put to Dr Coleman in cross examination at the criminal trial ([29], [35]).
(iii) Section 3A says the “paramount consideration” in the exercise of functions under the National Law must be “the protection of the health and safety of the public.” The public is protected from the conduct of Dr Coleman, as his registration as a health practitioner has been suspended, a public record of which exists. If he were to engage in practice, the HCCC has remedies available to it to prevent his doing so. Although the HCCC contended that the public interest would be prejudiced by the delay caused by a stay, as the practitioner has been suspended and criminal proceedings take priority, delay is a relevant but not critical factor. The Court also noted the delay in proceedings, and absence of explanation with regard to some complaints dating back many years, mainly to 2012-14 but one to 2003 ([38]-[39]).
(iv) The Tribunal erred in concluding that the decision in Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 did not support the grant of a stay. In Zhao and the present case, the possible prejudice is equally “plain.” Although the possibility of criminal charges in relation to Patient B have not progressed, and are “not guaranteed” to proceed, they should not be treated as of little or no significance. The Tribunal was incorrect to find that the fact that because disciplinary proceedings are “wider in scope” than criminal proceedings that makes them “quite different”, as this is of limited significance when both are to deal with the same alleged misconduct ([41]-[42]).
Read the decision on the NSW Caselaw website.
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| 17 December 2020 - Basten, McCallum and Simpson JJA
In sum: The Court of Appeal allowed the appeal of CXZ, who sought to have overturned the decision of the respondent Children’s Guardian, which rejected his application for a working with children check.
Facts: The appellant, CXZ, applied for a working with children check under the Child Protection Act 2012 (NSW) (Child Protection Act). The Children’s Guardian rejected his application due to numerous allegations, including of violence towards the appellant’s children and former spouses. Upon application for administrative review by the appellant, the Tribunal set aside the decision of the respondent and, in substitution, decided that the appellant should be granted clearance. The respondent appealed to the Supreme Court, where a single judge allowed the appeal and set aside the orders of the Tribunal ([40], [61], [67]).
The respondent put forward a three-step process for risk assessment. This involves first asking if the decision-maker is satisfied on the balance of probabilities that the allegation is true, and if so the misconduct is given the weight the decision-maker considers appropriate. Second, the decision-maker must be satisfied that the allegation is “groundless”, and if so, the allegation does not count against the person. Third, if the decision-maker has reached neither a positive nor a negative conclusion as to the truth or falsity of the allegation, but retains a “lingering” suspicion, it is still to be taken into account, and the decision-maker must consider what significance is to be given to that remaining concern ([47]).
Held (McCallum and Simpson JJA granting leave to appeal, allowing the appeal and setting aside orders of the Supreme Court):
(i) The primary judge was in error in accepting that the three-step process put forward by the respondent was required. While some allegations can be determined as substantiated and others as groundless, “very many cases” will not lend themselves to definitive factual determination. The jurisprudence does not suggest that every individual allegation is to be assessed as either “well founded” or “groundless” ([50]-[52], [54], [77]).
(ii) The Tribunal must decide whether the evidence is such as to justify a finding that there is a relevant risk. Even if it is unable to be satisfied one way or another as to the truth of the allegations, the Tribunal must determine whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. In the context of the Child Protection Act, this assessment depends upon, among other things: the seriousness of the allegations; the strength of any evidentiary support for the allegations; and the relevance of the conduct the subject of the allegations to the risk to the safety of children ([52]-[57]).
(iii) The language of “lingering doubt or suspicion” is particularly unhelpful in cases where, as here, the Children’s Guardian relies on multiple and disparate allegations to support the refusal to grant a clearance, because it tends to direct the decision-maker to compartmentalise the allegations and deal with each individually ([79]).
Basten JA (dissenting):
(iv) There was no issue of principle, error which was more than merely arguable, or otherwise apparent miscarriage of justice. As such, it was inappropriate to grant leave to appeal ([6]-[7]).
(v) Matters of access to children under the CPA are different to custodial proceedings in three ways: the class of children is potentially undefined, rather than limited to one or more in a particular family; there is no scope for mitigating risk through conditional access; and proceedings under the CPA rarely involve adversarial proceedings, at which the allegations may be aired, with supporting material where available, and denied or contradicted, as in custodial proceedings. As the Tribunal and Children’s Guardian may be unable to be satisfied as to the truth of an allegation, they may need to take into account less well-established risks than would be accepted in family law proceedings ([14]-[16]).
(vi) It is plausible (though it was not necessary to decide in these proceedings) that findings as to past events may need to be made with a degree of flexibility not usually accepted in civil proceedings. A similar process to that used for refugee visas under the Migration Act 1958 (Cth) may be appropriate, which requires applicants to establish “a real chance”, that is a “substantial, as distinct from a remote chance”, of persecution in their home country. The CPA does not seek to impose penalties; its protective nature is analogous to licensing legislation which is designed to protect the public from persons who are not of good character or otherwise cannot be trusted to maintain professional discipline and trust in the exercise of authority or power over others ([17], [19], [23]).
Read the decision on the NSW Caselaw website.
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| 10 December 2020 - Ward CJ in Eq, White and McCallum JJA
In sum: The Court of Appeal allowed the appeal of Mr Peter Livers against a finding by the Tribunal of professional misconduct, in the course of his profession as a legal practitioner. The Court set aside the decision of the Tribunal, because its finding was not supported by the evidence.
Facts: The appellant, Mr Peter Livers (Mr Livers), was alleged by the respondent Legal Services Commissioner (the Commissioner) to have fraudulently altered a document and prepared a grant application containing incorrect information in order to mislead, or attempt to mislead, the WorkCover Independent Review Office (WIRO), and obtain a grant of funding for legal representation for a client. WIRO is the office that administers applications for grants from the Independent Legal Assistance and Review Service, a service established by the NSW government to provide funding for lawyers acting for injured workers ([4], [7]).
The Commissioner argued that Mr Livers’ conduct was dishonest or at least “recklessly careless”. Mr Livers denied deliberate fraud or dishonesty but admitted that he had been negligent in preparing the application and that his conduct amounted to professional misconduct. Nevertheless, the Tribunal found him guilty of professional misconduct on the basis that he had been dishonest. Mr Livers appealed against that decision and it was remitted by the Court of Appeal to the Tribunal. The Tribunal again found Mr Livers guilty of professional misconduct on the basis that he had been dishonest. Mr Livers appealed against that decision. The key issue to be resolved by the Court of Appeal was whether the evidence was capable of supporting the conclusion reached by the Tribunal ([4]-[5]).
Held (allowing the appeal, setting aside the Tribunal’s decision, dismissing the application by the Legal Services Commissioner for disciplinary findings and protective orders):
(i) The term “reckless carelessness” is difficult to define in a professional misconduct context; carelessness suggests inadvertence while recklessness requires advertence to a risk and a decision to persevere nevertheless. Professional misconduct jurisprudence accepts that an allegation of wilful misconduct may be established without proof of any “positive intention to breach the law” provided “breaches committed over a period of time can, in the light of the relevant circumstances, be so substantial and reckless and show such complete indifference on the part of the solicitor to his important obligations to his clients and to the public, as to amount to wilful failure”: Re Mayes and the Legal Practitioners Act [1975] 1 NSWLR 19 at [21] ([43], [45]).
(ii) An allegation of reckless carelessness requires proof of something more than negligence. The Commissioner confirmed that the allegation he sought to prove was of misleading or intending to mislead “with wilful intent”, and accepted that a finding of negligence would not make out that case. The Commissioner had to prove that Mr Livers at least turned his mind to the risk that WIRO would be misled by the contents of the application and its attachments and that he nevertheless persisted in making statements he knew to be false, or as to which he did not care whether they were true or false ([46]).
(iii) The Commissioner bore the onus of proof, and the Tribunal was required to have regard to the seriousness of the consequences if the allegations were made out. As the primary allegation was one of fraud, clear or cogent or strict proof was required ([61]).
(iv) This present matter is circumstantial; the evidence is capable of giving rise to competing inferences and requires consideration of all of the relevant circumstances as a whole, rather than a reductionist approach. As such the Tribunal erred in failing to consider the fact that the dates were altered in the same way on the two documents, and note that one of those documents was accepted to have been altered by the client, not Mr Livers. The evidence does not support a finding that Mr Livers dishonestly or recklessly misled or attempted to mislead WIRO to obtain a grant of funding ([80]).
Read the decision on the NSW Caselaw website.
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| Supreme Court of New South Wales
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| Re Kara (No 7) [2021] NSWSC 22
7 January 2021 - Slattery J
In sum: In which the Supreme Court used its parens patriae jurisdiction to make a secure accommodation order for a young person, known by the pseudonym Kara.
Facts: The subject of this decision, a 16 year old Aboriginal person known by the pseudonym Kara, has been the subject of six previous judgments by the Court. She has a troubled personal history, which includes “absconding from her family environment, unbound illicit drug taking, willingness to form unsafe relationships and repeated sexual abuse by a drug dealer”. She has been medically diagnosed with Complex Trauma and Substance Abuse Disorder ([1]-[2]).
Kara was confined in September 2020 to the Saunders Unit at the Sydney Children’s Hospital, for the administration of medical treatment, including medically supervised withdrawal from illicit substances. However Kara’s age makes her unsuitable for stay at the Saunders Unit in the longer term. Following orders for Kara’s continued confinement in a secure location operated by Safe Places Community Services (Safe Places), where she could receive ongoing support, Kara repeatedly absconded. Therefore, in December 2020 the Court ordered Kara’s confinement and treatment at Sherwood House, which was thought to be an option to provide a safe environment for Kara’s treatment and rehabilitation ([3]-[6]).
Held (making orders for the recovery of the young person and for her confinement to Sherwood House facilities while she undertakes medical treatment):
(i) The Court will exercise its parens patriae jurisdiction to make a secure accommodation order for Kara at Sherwood House for therapeutic treatment. The Court’s jurisdiction and its willingness to make secure accommodation orders at Sherwood House in appropriate cases has been established in practice for over 10 years: Director General, Department of Community Services v Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193, Director General, Department of Community Services v Thomas (2009) 41 Fam LR 220; [2009] NSWSC 217, and Re Sally [2009] NSWSC 1141 ([10]).
(ii) In making the secure accommodation order, the benefits and issues must be considered. At Sherwood House, Kara will have access to extensive facilities, including therapies, education, and other supports, to aid in her recovery from trauma and addiction. The regrettable price of these benefits is the confinement of Kara, if necessary against her will, at Sherwood House. While mindful of the gravity of making such an order, the Court takes the view that the clear weight of the evidence favours taking the opportunity for Kara to have these advantages, which are likely to benefit her in the long-term, even at the expense of a temporary loss of liberty in the short-term ([18]-[19]).
(iii) The support and acceptance of these orders by Kara’s family is vital to their success. Kara’s mother expressed concerns over losing contact with Kara during her confinement to Sherwood House. While the Court respected submissions by professionals as to the difficulties in creating in advance a contact regime, and the preference of such regimes being worked out flexibly as needs arise, the Court was mindful of the importance of securing Kara’s family’s confidence in the program, and the best way of achieving that is to provide in the Court’s orders for some minimal levels of contact ([21]-[22]).
Read the decision on the NSW Caselaw website.
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| Supreme Court of Victoria
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In sum: The Supreme Court of Victoria allowed an appeal by Ling Ye She, who made various complaints about her studies at the respondent, RMIT University. The Supreme Court found there was an absence of procedural fairness during proceedings brought by the appellant and dismissed at Dandenong Magistrates Court, and remitted the matter back to a differently constituted Magistrates Court.
Facts: The appellant, Ling Ye She, completed a placement at a childcare centre as part of her studies for a Graduate Diploma at RMIT University, the respondent. This placement was cut short, and the appellant filed a statement of claim at Dandenong Magistrates Court with several complaints. The Magistrate found these complaints to be unclear and granted the respondent’s strike out application ([7]-[9]).
The appellant appealed to the Supreme Court of Victoria, alleging error of law, breach of natural justice and a failure by the Magistrate to ensure procedural fairness. These claims were made on the basis of: the short time the appellant was afforded to speak; the lack of opportunity the appellant was given to read the cases referenced by the respondent; and alleged apprehended bias by the Magistrate against the appellant as a self-represented party ([38]-[46]).
Held (allowing the appeal):
(i) Rule 23.02 of the Magistrates’ Court General Civil Procedure Rules 2010 (Vic) allows the Court to strike out or amend the whole or part of a statement of claim if it does not disclose a cause of action or defence; is scandalous, frivolous or vexatious; may prejudice, embarrass or delay the fair hearing of the proceeding; or is otherwise an abuse of the process of the Court. Dismissal of proceedings is not the ordinary consequence of a successful application to strike out a statement of claim under r 23.02; the “relief normally granted is that the offending pleading (or portions of it) be struck out or amended”: Household Financial Services Ltd v Braybrook [1991] 2 VR 577 at [585] ([60], [66]).
(ii) The Magistrate allowed the appellant to speak uninterrupted for five minutes at the hearing, when it would have been more appropriate to provide guidance, particularly when compared to the many exchanges between the Magistrate and counsel for the respondent. Further, the appellant was under numerous misapprehensions regarding court processes and procedures. Although the Magistrate was not necessarily aware of them, the fact that these erroneous beliefs endured beyond the hearing and formed part of the appellant’s argument before the Supreme Court is indicative of the lack of explanation by the Magistrate. The Magistrate breached his positive duty to assist the appellant as a self-represented litigant, and take appropriate steps to ensure that she had sufficient information about the practices and procedures of the court, so far as was reasonably practicable for the purpose of ensuring a fair trial. This would include helping the appellant to understand the proceedings by providing her with an opportunity to read and review the materials submitted by the respondent, and attempting to elucidate the legal points (if any) that underpinned her resistance to the respondent’s application. While there was no evidence of apprehended bias, these actions manifested as a denial of procedural fairness and natural justice, and constituted a breach of the appellant’s right to a fair trial under s 24 of the Charter for Human Rights and Responsibilities Act 2006 (Vic) (the Charter) ([79]-[81], [86], [105]-[106], [108], [117], [119], [124]-[125], [128], [131], [142]).
(iii) Where a decision-maker makes a decision in jurisdictional error, the Supreme Court has broad discretion to grant relief. However an order in the nature of certiorari, quashing the orders striking out the appellant’s statement of claim, would be futile. It would likely result in the respondent making a fresh, and successful, application to strike out the appellant’s proceedings, as it is difficult to see what submissions she could have made that would have rectified the deficiencies on the face of the documents ([144], [146]).
(iv) In light of the circumstances, the Court ordered a declaration issue that, in the proceedings at Dandenong Magistrates’ Court, the appellant was denied procedural fairness and natural justice, and her right to a fair hearing under s 24 of the Charter. Further the appellant was granted leave to file a new statement of claim and the issue was remitted to Dandenong Magistrates’ Court for a directions hearing before a differently constituted court ([147]).
Read the decision on the Australasian Legal Information Institute (AustLII) website.
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| Federal Court of Australia
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| 24 December 2020 - Charlesworth J
In sum: The Federal Court of Australia dismissed an application for a native title determination on behalf of the Barngarla people, as it concerned land that was subject to a separate native title claim commenced on behalf of the Nauo people in 2016, and the matter should be decided in one proceeding. Further, the applicant had not advanced any new submissions that had not been assessed in a previous application.
Facts: The applicant lodged an application for native title determination under s 13 of the Native Title Act 1993 (Cth) (NTA), on behalf of the Barngarla people, in relation to an area south of Port Lincoln on the Eyre Peninsula in South Australia. The claim was filed in February 2020, and wholly overlaps with a claim commenced in June 2016 on behalf of the Nauo people. The State of South Australia, the respondent, applied by interlocutory application, for orders striking out, or summarily dismissing, the Barngarla claim ([1]-[3]).
The overlapping native title claims of the Barngarla and Nauo people have been ongoing since both peoples lodged applications in 1998. The historical overlap was resolved when authorised representatives of each group entered into a Memorandum of Understanding in 1999 and a Deed of Termination in 2010. As a result of these documents, the boundaries of the original Nauo claim were redrawn so as to remove the overlap, and the persons constituting the authorised applicant in each action were changed. In 2012, the Federal Court recognised various native title claims of the Barngarla people, but found that they did not possess native title rights and interests in respect of land in the Port Lincoln area that was not then subject to any remaining overlapping claims ([17]-[22]).
Held (rejecting the application for native title determination):
(i) Section 61A(1) of the NTA provides that a native title determination application must not be made in relation to an area for which there is an approved determination of native title. The Federal Court is prohibited by s 68 from conducting any proceeding relating to an application for another determination of native title, or making any other determination of native title, where there exists an approved determination of native title in relation to a particular area. Where multiple proceedings related to native title determination applications cover (in whole or in part) the same area, s 67 requires the Court to ensure that, to the extent the applications cover the same area, they are dealt with in the same proceeding ([11]-[12], [14]).
(ii) The reason for the abovementioned procedural provisions is to ensure that persons whose interests may be affected by a determination of native title in relation to an area become aware of the application, and have the opportunity to be heard before the Court determines whether or not native title exists. Once made, a native title determination may be varied or revoked under s 13(1)(b) if subsequent events have caused the determination to no longer be correct, or if the interests of justice require that it be varied or revoked ([15]-[16]).
(iii) In the 2012 case the alternative argument of “conjoint succession” was that, if the land was Nauo country at sovereignty, the Barngarla people obtained primary or core rights in that country through a licit process of succession, if they did not already have it. The Federal Court found that it is certainly possible for one group within a single society, in respect of land formerly possessed by another group within that society, to have obtained rights and interests in that land which are rights and interests possessed under traditional laws and customs. There is no reason why a society’s traditional laws and customs could not provide for such ‘transmission’ or ‘succession’ between groups in particular circumstances. However, if two groups’ traditional laws and customs vary to an extent such that they cannot be considered one ‘society’, then it is difficult to see how the ‘transmission’ of one group’s country to another group, or the ‘succession’ to one group’s country by another group, could lead to the ‘transferee’ group’s obtaining rights and interests in the relevant land that could be said to be possessed under traditional laws and customs. The absence of evidence about the Nauo people’s laws and customs, at the present day or at sovereignty, made it impossible to say whether the “succession” is “licit”, and are rights and interests possessed under laws and customs that can be said to be “traditional” ([31]-[32]).
(iv) In accepting the 2012 decision, the Barngarla applicant necessarily accepts the finding that the Barngarla people did not occupy the Port Lincoln area at sovereignty in accordance with Barngarla traditional laws and customs. The absence of an approved native title determination means there is no express statutory prohibition on the commencement of claims by either the Barngarla or Nauo peoples, however the Barngarla claim of “conjoint succession” was rejected by the Court, and the present proceeding is an attempt to relitigate issues that were finally determined in 2012. The application was summarily dismissed as an abuse of process. It is plainly desirable that there be a single trial incorporating all of the factual and legal bases upon which all claimants assert their rights and interests, including in contest with each other ([40]-[41], [46]-[48], [66]-[68], [75]).
Read the decision on the Federal Court of Australia website.
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| | | Decisions of Interest Bulletin |
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| CXZ v Children’s Guardian [2020] NSWCA 338
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| Ghosh v Health Care Complaints Commission [2020] NSWCA 353
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| De Lorenzo v De Lorenzo [2020] NSWCA 351
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| Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre [2020] NSWCA 354
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TORTS – negligence – causation – intruder enters shopping centre via gap – requirement to address gap – Civil Liability Act 2002 (NSW), s 5D
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| Will v Brighton [2020] NSWCA 355
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| Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360
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TORTS — malicious prosecution — malicious criminal proceedings — elements of tort — application for summary dismissal — whether s 32 dismissal constitutes a termination of proceedings in favour of a plaintiff |
| GC NSW Pty Ltd v Galati [2020] NSWCA 326
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