| | | | | NCAT Legal Bulletin - Issue 2 of 2015 (June 2015)
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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.
During June, various NCAT Guardianship Division forms and fact sheets were updated following changes introduced by the Courts and Crimes Legislation Amendment Act 2015. Visit the NCAT website to find out more and to subscribe to the What's New alerts service. |
| | | McGeown v NSW Land and Housing Corporation [2015] NSWCA 23
23 February 2015 – McColl and Macfarlan JJA and Sackville AJA
SUMMARY: The NSW Court of Appeal considered an appeal from a decision of the Appeal Panel of the Civil and Administrative Tribunal (constituted by O’Connor ADCJ, Deputy President, and G Meadows, Senior Member) in a social housing matter: [2014] NSWCATAP 66.
The question before the Court was whether the appellant had ceased to personally occupy, for the purposes of a lease covered by the Residential Tenancies Act 2010 (NSW), the premises by reason of a two year and three month term of imprisonment. Although this question was not one that was raised in proceedings before the Tribunal, the Court was content to consider it. In granting leave to appeal and dismissing the appeal with costs, the Court held that the question of personal occupancy will often “involve matters of fact and degree” (at [49]). In this case, three factors rendered the appellant not to be in personal occupancy of the premises:
1. The emphatic words in the lease agreement that the occupant need “personally occupy the Premises at all times” (at [42], emphasis in original);
2. The acknowledgment by the occupant in the lease that the occupant may, by court order or otherwise, cease to occupy the premises involuntarily (at [43]; and
3. The Housing Corporation’s “obligation to provide accommodation to those in need of public housing”, as incorporated in the lease agreement and s 5(1) of the Housing Act 2001 (NSW) (at [44] to [46]).
Sackville AJA, however, warned against a hard and fast rule at [49] (McColl and Macfarlan JJA agreeing):
This is not to say that the intention of a tenant of public housing will always be irrelevant in construing a provision such as of cl 35 of the Lease. Nor does it mean that a tenant’s temporary absence from public housing will expose him or her to termination of the lease. If, for example, a tenant leaves public housing for a vacation, even for a period of a few months, it is unlikely that he or she will be regarded as having ceased personally to occupy the premises. (The position may be different if the “vacation” lasts for a longer period, during which the tenant takes up residence somewhere else.) Similarly, if the tenant requires a period of convalescence in a medical or rehabilitation facility, he or she is unlikely, by reason of that fact alone, to be regarded as in breach of cl 35.2. The question of whether a tenant has ceased personally to occupy premises, within the meaning of cl 35.2 of the Lease, will often involve matters of fact and degree. The present case, however, in my opinion is clearly one in which the applicant ceased personally to occupy the Premises.
LINK: Read the decision on the NSW Caselaw website. |
| Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89
13 April 2015 – McColl, Basten and Meagher JJA
SUMMARY: In the context of judicial review of care and protection orders of the Children’s Court, the Court of Appeal summarised the law on a number of important administrative law principles.
McColl JA defined the role of amicus curiae at [102] as follows:
a role in which a “person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted”, but does not take a partisan position. (References omitted).
Her Honour expounded on the nature of certiorari and jurisdictional error at [142] to [146].
In addition, her Honour elaborated on the principles of a fair trial and the failure to afford procedural fairness amounting to jurisdictional error, particularly in the context of unrepresented litigants at [152] to [160]:
[152] …”[c]ourts have an overriding duty to ensure that a trial is fair [which] … entails ensuring that the trial is conducted fairly and in accordance with law … [and] [i]n the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented”
[153] Procedural fairness is an aspect of the obligation to ensure a fair trial. It requires “a fair hearing, not a fair outcome”. Accordingly, “the relevant question is about the [decision-maker’s] processes, not its actual decision [and] the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires, [while] the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case”
[154] A failure to afford procedural fairness constitutes jurisdictional error.
[155] A fair trial is, of course, one free of bias: “[i]mpartiality is an essential characteristic of courts”. Bias on the part of the primary judge would constitute jurisdictional error if established.
(References omitted)
Her Honour proceeded to explain the principles governing bias and the application of the two-step Ebner test at [156] to [160]. These principles were also explored in the recent High Court decision of Isbester v Knox City Council [2015] HCA 20, which will be included in the next bulletin.
LINK: Read the decision on the NSW Caselaw website. |
| Sze Tu v Lowe (No 2) [2015] NSWCA 91
10 April 2015 – Meagher, Barrett and Gleeson JJA
SUMMARY: The Court of Appeal considered the question of costs in Sze Tu v Lowe [2014] NSWCA 462, which the same court had delivered earlier. In giving the cost orders, Gleeson JA (with whom Meagher and Barrett JJA agreed) explained a number of principles in relation to costs at [37] to [42]:
[37] Costs are not awarded by way of punishment of the unsuccessful party but, rather, “are compensatory in the sense that they are awarded to indemnify to successful party against the expense to which he or she has been put by reason of the legal proceedings”. It follows that the inquiry as to what costs order should be made is primarily directed to the position of the successful party.
[38] The starting position is s 98 of the Civil Procedure Act 2005 (NSW) which provides that, subject to the rules of court, costs are in the discretion of the Court including by whom, to whom and to what extent costs are to be paid. Reference should also be made to r 42.1, Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which provides that if the Court makes any order as to costs, it should be in terms that costs follow the event unless it appears to the Court that some other order should be made as to the whole or part of the costs.
[39] How “the event” should be defined will depend upon the nature of the litigation. Generally the “event” refers to the event of the claim and may be understood as referring to the practical result of a particular claim.
[40] In a proper case, the party that is successful overall may be deprived of part of its costs, or ordered to pay the costs of a discrete issue. The circumstances in which this may occur are not limited to cases where it was unreasonable for the successful party to raise the issue on which it failed. The relevant principles were reviewed by this Court in Elite Protective Service Pty Ltd v Salmon (No 2) [2007] NSWCA 373, and summarised in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] (Beazley, Ipp and Basten JJA)
[…]
[41] In approaching the question of apportionment where there are multiple issues, it has also been recognised that there is a basis for distinguishing between the position of successful defendants and successful plaintiffs. In Griffith at [19] Hodgson JA explained the distinction
[…]
(References omitted).
LINK: Read the decision on the NSW Caselaw website. |
| Pollock v Hicks [2015] NSWCA 122
8 May 2015 – Macfarlan, Emmett and Gleeson JJA
SUMMARY: In allowing an appeal from a decision of the District Court with costs, the Court of Appeal considered what was meant by “involved” in s 75B of the Competition and Consumer Act 2010 (Cth) (The words of s 75B are now incorporated in identical terms in s 2 of the Australian Consumer Law (NSW)). The Court held:
(1) “The individual said to have participated in the contravention must be an intentional participant, and this requires knowledge of the essential matters or elements which constitute the contravention, regardless of whether or not the individual knows that those matters amount to a contravention” (based on Yorke v Lucas (1986) 158 CLR 661) (at [65])
(2) “…both paras (b) and (d) of s 75B also require intent based on knowledge…in the case of involvement of a contravention constituted by misrepresentations, the element of intention would require knowledge of the falsity” (based on obiter dicta in Yorke) (at [65])
(3) “Subsequent authority establishes that in the case of a representation as to a future matter, it is necessary to demonstrate that the accessory had knowledge that there were no reasonable grounds for the statement.” (at [66])
Section 2 of the Australian Consumer Law (NSW) now provides:
“involved”: a person is involved, in a contravention of a provision of this Schedule or in conduct that constitutes such a contravention, if the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced, whether by threats or promises or otherwise, the contravention; or
(c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or
(d) has conspired with others to effect the contravention.
Link: Read the decision on the NSW Caselaw website.
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| New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133
21 May 2015 – Beazley P and Macfarlan and Leeming JJA
SUMMARY: The Court of Appeal decided an appeal from a decision of the Civil and Administrative Tribunal in a social housing matter. In upholding the decision of the Tribunal, both at first instance (by K Rosser, Senior Member) and of the Appeal Panel (composed of Wright J, President, Hennessy LCM, Deputy President, and G Meadows, Senior Member: [2014] NSWCATAP 27), Macfarlan JA (with whom Beazley P agreed and Leeming JA, in substance, agreed) made the following findings:
(1) The decision of the New South Wales Land and Housing Corporation (the “Corporation”) to grant a rent rebate to the respondent, Mr Diab, who held an ongoing weekly tenancy with the Corporation, resulted in offers to vary the contract, which were accepted each time by his paying the reduced amount of rent
(2) Macfarlan JA stated obiter at [36] that, were the tenancy for a longer period (and not on a weekly basis), the result (see point (3) below) would be the same, albeit the operative mechanism would be estoppel (rather than contract)
(3) The right of the Corporation to cancel the rent rebate, with effect from an earlier date, based on the respondent’s failure to declare the income of his cohabiting sons, and recover that amount under s 57 of the Housing Act, was a statutory right. It did not mean that the respondent was in arrears for rent, for which breach the Corporation could terminate the tenancy agreement (Macfarlan JA at [37]-[39] and Leeming JA at [59]-[69]).
LINK: Read the decision on the NSW Caselaw website.
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| | Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2015] NSWSC 354
2 April 2015 – Robb J, Equity Division
SUMMARY: The Supreme Court of NSW considered the question of who the parties to a contract were, where the contract referred to a corporate group as a party. In doing so, Robb J summarised a number of legal principles governing the identification of parties to contracts at [80] to [86].
Robb J, at [80], quoted the judgment of the Court of Appeal in Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429; 77 NSWLR 299 at [28]:
(1) The identity of the contracting party is to be determined looking at the matter objectively, examining and construing any relevant documents in the factual matrix in which they were created and ascertaining between whom the parties objectively intended to contract.
(2) This is, to a point, a process of construction similar to the task of identifying whether a clearly contractual document (such as a bill of lading) is made with one party or another (such as a shipowner or time charterer).
(3) Where the documents are silent or ambiguous, but there is undoubtedly a contract, the identity of the parties must be determined objectively from the surrounding circumstances.
His Honour proceeded to examine the question of “whether, and if so how, the Court may have regard to the conduct of the parties after the date of the contract to identify the intended parties”: After reviewing the authorities at [83] to [86], his Honour found that post-contractual conduct can be taken into account in so far as determining the questions of:
(a) whether a contract has indeed formed; and
(b) between whom the contracts has formed.
Link: Read the decision on the NSW Caselaw website. |
| BKE v Office of Children's Guardian & Anor [2015] NSWSC 523
11 May 2015 – Beech-Jones J, Common Law Division
SUMMARY: The Supreme Court allowed an appeal of the Civil and Administrative Tribunal’s decision to refuse the plaintiff a Working with Children Check Clearance for the purposes of the Child Protection (Working with Children) Act 2012 (NSW).
In coming to this result, Beech-Jones J rejected all but one ground of appeal. The error upon which the plaintiff’s appeal was successful was the Tribunal’s finding that an event did, in fact, occur, without affording him the opportunity to deal with it (at [55]).
The plaintiff had been charged, and subsequently acquitted, more than ten years ago for allegedly inappropriately touching his eldest grandson. NCAT had, based on transcripts of the criminal proceedings, made a bare finding that the event had, in fact, occurred.
Beech-Jones J held that to make this finding without affording the plaintiff an opportunity to deal with it, which NCAT had not, meant that the plaintiff was denied natural justice and overturned the decision on this basis (see especially [66]-[74]).
LINK: Read the decision on the NSW Caselaw website. |
| | Court of Appeal of Queensland |
| Rintoul v State of Queensland & Ors [2015] QCA 79
8 May 2015 – Holmes and Philippides JJA and Peter Lyons J
Summary: The Court of Appeal of the Supreme Court of Queensland considered an appeal from a decision of the President in the Queensland Civil and Administrative Tribunal (QCAT). In allowing the appeal, the Court interpreted s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), which is broadly similar in terms – though not identical – to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW). Section 61 relevantly provides:
(1) The tribunal may, by order –
(a) extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or
(b) extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or
(c) waive compliance with another procedural requirement under this Act, an enabling Act or the rules.
(2) An extension or waiver may be given under subsection (1) even if the time for complying with the relevant requirement has passed.
…
The Court held, applying the logic of FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, 283-284, that s 61(1)(c) confers on the Tribunal power to waive non-compliance with its orders: at [11] to [17].
LINK: Read the decision on the Queensland Supreme Court Library website
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