| | | | | | | NCAT Legal Bulletin Issue 10 of 2017
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| The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal. This issue covers the period of October to November 2017.
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| Koani v The Queen [2017] HCA 42
18 October 2017 - Kiefel CJ, Bell, Gageler, Nettle, Gordon JJ
In brief: The High Court unanimously allowed an appeal from the Queensland Court of Appeal, holding that a criminally negligent act or omission could not found a conviction for murder under s 302(1)(a) of the Criminal Code (QLD). The Court held (at [25]) that s 302(1) of the Criminal Code strictly defined the circumstances in which an unlawful killing constitutes murder, stating that:
“[26] Section 302(1)(a) is not the statement of a free-standing mental element of criminal responsibility that can be attached to a negligent act or omission. The elements of the offence of murder for which s 302(1)(a) provides require the prosecution to prove that the unlawful killing was caused by an act or omission of the accused that was done or omitted to be done with the intention thereby of causing death or some grievous bodily harm to some other person. Section 302(1) is not an express provision of the Code relating to negligent acts or omissions for the purposes of s 23(1)(a): the offence of murder is not exempted from the rule that a person is not criminally responsible for an act or omission that occurs independently of the exercise of the person's will.”
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| Brown v Tasmania [2017] HCA 43
18 October 2017 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In brief: The High Court, by majority (Gordon J and Edelman J dissenting), held that certain provisions of the Workplaces (Protections from Protesters) Act 2014 (Tas) were invalid as they impermissibly burdened the implied freedom of political communication contrary to the Commonwealth Constitution.
Gageler J helpfully summarised (at [156]) the analytical framework for determining whether a law contravenes the implied freedom of political communication as follows:
“1. Does the law effectively burden freedom of political communication?
2. Is the purpose of the law legitimate, in the sense that it is incompatible with the maintenance of the constitutionally prescribed system of government?
3. Is the law appropriate and adapted to advance that purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government?
If the first question is answered “yes”, and if either the second or the third question is answered “no" the law is invalid.”
In relation to the first and second questions set out above, the plurality (Kiefel CJ, Bell and Keane JJ) held that, although the impugned provisions burdened the implied freedom (at [95]), the Workplaces (Protections from Protesters) Act was directed to a legitimate purpose that was compatible with the maintenance of the constitutionally prescribed system of government (at [101]). In relation to the third question, the plurality held that the impugned provisions of the Workplaces (Protections from Protesters) Act were not “appropriate and adapted” as some of the provisions had no rational connection to the legitimate purpose of the law (at [134]-[136]) and that other provisions were not reasonably necessary to achieve the legitimate purpose of the law (at [146]).
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| Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45
27 October 2017 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In brief: The High Court unanimously held that, by virtue of s 44(i) of the Constitution, Mr Scott Ludlam, Ms Larissa Waters, Senator Malcolm Roberts, the Hon Barnaby Joyce MP and Senator the Hon Fiona Nash were incapable of being chosen or of sitting as a senator or a member of the House of Representatives, but that Senator the Hon Matthew Canavan and Senator Nick Xenophon were not disqualified by reason of that provision. Relevantly, s 44(i) of the Constitution provides that:
“Any person who:
(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power…
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shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”
After reviewing its text and structure (at [20]-[23]), purpose (at [24]-[26]) and drafting history (at [27]-[36]), the Court held, in summary, that:
“[71] Section 44(i) operates to render "incapable of being chosen or of sitting" persons who have the status of subject or citizen of a foreign power. Whether a person has the status of foreign subject or citizen is determined by the law of the foreign power in question. Proof of a candidate's knowledge of his or her foreign citizenship status (or of facts that might put a candidate on inquiry as to the possibility that he or she is a foreign citizen) is not necessary to bring about the disqualifying operation of s 44(i).
[72] A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a foreign power will be disqualified by reason of s 44(i), except where the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative is engaged.”
The Court then applied this construction of s 44(i) to the circumstances of each of the persons referred at [74]-[135].
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| Re Barrow [2017] HCA 47
7 November 2017 - Edelman J
In brief: The High Court refused to grant leave to an applicant, who sought a declaration concerning his eligibility, under s 44(i) of the Constitution, to be chosen as a Senator in the next general election. The Court held (at [11]) that the declaration sought was merely a “purely advisory opinion” and not a “justiciable matter” under Ch III of the Constitution, observing that (footnotes omitted):
“[9] In re Judiciary and Navigation Acts, five members of this Court concluded that a justiciable matter requires "some immediate right, duty or liability to be established by the determination of the Court" or "must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law". A justiciable matter was said to include neither "a declaration of the law divorced from any attempt to administer that law" nor "abstract questions of law without the right or duty of any body or person being involved".
[10] One effect of this reasoning is that, like the circumstance where this Court exercises appellate jurisdiction, in original jurisdiction this Court has no power to give a purely advisory opinion. The boundaries of what is a purely advisory opinion, such that the question would not fall within a justiciable matter, may require a degree of evaluative judgment, and may not be susceptible to an all-encompassing definition. However, an advisory opinion which is generally beyond federal jurisdiction can be described as being one which is "not based on a concrete situation" and one which "does not amount to a binding decision raising a res judicata between parties".”
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| Van Beelen v The Queen [2017] HCA 48
8 November 2017 - Bell, Gageler, Keane, Nettle, Edelman JJ
In brief: The High Court unanimously dismissed an appeal from the Full Court of the Supreme Court of South Australia, holding that the Full Court had correctly denied the appellant a second appeal as there was not a significant possibility that the appellant would have been acquitted even if his new evidence had been admitted under s 353A(1) of the Criminal Law Consolidation Act 1935 (NSW). Relevantly, s 353A provides that:
“(1) The Full Court may hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.
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(3) Full Court may allow an appeal under this section if it thinks that there was a substantial miscarriage of justice.
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(6) For the purposes of subsection (1), evidence relating to an offence is -
(a) "fresh" if -
(i) it was not adduced at the trial of the offence; and
(ii) it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and
(b) "compelling" if -
(i) it is reliable; and
(ii) it is substantial; and
(iii) it is highly probative in the context of the issues in dispute at
the trial of the offence.”
In the proceedings before the Full Court, the majority held that new expert evidence obtained by the appellant was “fresh” but not “compelling” and that, even if it were “compelling”, it would not be in the interests of justice for the evidence to be considered on appeal, as it would have no made no difference to the resolution of the issues at trial (at [20]). After considering the whole of the evidence available at trial (at [33]ff), the Court held (at [75]) that (footnotes omitted):
“The majority in the Full Court were right to conclude that there is not a significant possibility that a properly instructed jury, acting reasonably, would have acquitted the appellant had [the new expert evidence been admitted].”
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| Thorne v Kennedy [2017] HCA 49
8 November 2017 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In brief: The High Court unanimously allowed an appeal from the Full Court of the Family Court of Australia, setting aside a pre-nuptial agreement and post-nuptial agreement for unconscionable conduct. In doing so, the majority (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ) considered the equitable principles of duress (at [26]-[29]), undue influence (at [30]-[36]), and unconscionable conduct (at [37]-[40]).
In relation to duress, the majority observed (at [26]) that (footnotes omitted):
“The vitiating factor of duress focuses upon the effect of a particular type of pressure on the person seeking to set aside the transaction. It does not require that the person's will be overborne. Nor does it require that the pressure be such as to deprive the person of any free agency or ability to decide. The person subjected to duress is usually able to assess alternatives and to make a choice. The person submits to the demand knowing "only too well" what he or she is doing.”
In relation to undue influence, the majority observed (at [30]) that (footnotes omitted):
“In Allcard v Skinner, Lindley LJ said that "no Court has ever attempted to define undue influence". One reason for the difficulty of defining undue influence is that the label "undue influence" has been used to mean different things. It has been used to include abuse of confidence, misrepresentation, and the pressure which amounts to common law duress. Each of those concepts is better seen as distinct. Nevertheless, the boundaries, particularly between undue influence and duress, are blurred. One reason why there is no clear distinction is that undue influence can arise from widely different sources, one of which is excessive pressure. Importantly, however, since pressure is only one of the many sources for the influence that one person can have over another, it is not necessary that the pressure which contributes to a conclusion of undue influence be characterised as illegitimate or improper.
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”
In relation to unconscionable conduct, the majority observed that (footnotes omitted):
“[38] A conclusion of unconscionable conduct requires the innocent party to be subject to a special disadvantage "which seriously affects the ability of the innocent party to make a judgment as to [the innocent party's] own best interests" . The other party must also unconscientiously take advantage of that special disadvantage. This has been variously described as requiring "victimisation" , "unconscientious conduct", or "exploitation". Before there can be a finding of unconscientious taking of advantage, it is also generally necessary that the other party knew or ought to have known of the existence and effect of the special disadvantage.”
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[40] Although undue influence and unconscionable conduct will overlap, they have distinct spheres of operation. One difference is that although one way in which the element of special disadvantage for a finding of unconscionable conduct can be established is by a finding of undue influence, there are many other circumstances that can amount to a special disadvantage which would not establish undue influence. A further difference between the doctrines is that although undue influence cases will often arise from the assertion of pressure by the other party which might amount to victimisation or exploitation, this is not always required. In Commercial Bank of Australia Ltd v Amadio, Mason J emphasised the difference between unconscionable conduct and undue influence as follows:
"In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position."”
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| | Cherry v Steele-Park [2017] NSWCA 295
22 November 2017 - Gleeson JA, Leeming JA, White JA
In brief: The New South Wales Court of Appeal dismissed an appeal from the District Court, but held that the primary judge had erred in ruling email evidence, relevant to the construction of a commercial guarantee, was inadmissible under s 136 of the Evidence Act 1995 (NSW) on the basis that the correspondence was “no more than evidence of the parties’ subjective intentions” (at [91]-[94]).
In doing so, the Court (Leeming JA, Gleeson JA and White JA agreeing) considered (at [48]ff) the approach to be taken where one party seeks to rely upon extrinsic evidence in order to construe a commercial contract, holding (at [75]) that:
“The ultimate question is whether the written language of the contract, when considered in light of legitimately relevant surrounding circumstances, permits a constructional choice to be made between two different legal meanings.”
The Court observed (at [57] and [59]) that there is a distinction between evidence of surrounding circumstances known to the parties, which may be used to construe the contract, and evidence of the parties’ subjective intentions, which may not be used to construe the contract. The Court also cited (at [59]) WIN Corporation Pty Ltd v Nine Network Australia Pty Ltd [2016] NSWCA 297; 341 ALR 467 at [57], which held that:
“Evidence of prior negotiations is admissible to the extent that it establishes objective facts known to both parties and the subject matter of the contract. Conversely, evidence reflecting the subjective intentions of the parties is, in accordance with long-standing authority, necessarily inadmissible for the purpose of determining the meaning of the contract (unless it demonstrates knowledge of surrounding circumstances)…. [Footnotes omitted.]
The Court also held (at [76]) that “[t]here is now a deal of authority for the proposition that whether there is in truth a constructional choice available to a written contract cannot be determined without first at least considering evidence of surrounding circumstances,” citing (at [77]ff), among other authorities, Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35], Mainteck Services Pty Ltd v Stein Heurtey SA at [71]-[85], Newey v Westpac Banking Corporation at [89] and Stratton Finance Pty Ltd v Webb [2014] FCAFC 110; 314 ALR 166 at [36]-[40].
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