| | | | | | | | NCAT Legal Bulletin Issue 2 of 2016
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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 February to April 2016.
You can now subscribe to the NCAT Appeal Decisions Digest for monthly updates of keyword summaries of decisions of the NCAT Internal Appeal Panel. View the latest issue of the Digest on the NCAT website. |
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Fischer v Nemeske Pty Ltd [2016] HCA 11
6 April 2016
In brief: The High Court held, by a 3:2 majority, that a trustee had validly exercised the power to advance and apply by creating a debt due by the trustee to the beneficiaries.
Read the decision on the High Court of Australia website. |
| Zaburoni v The Queen [2016] HCA 12
6 April 2016
In brief: The High Court unanimously allowed an appeal from a decision of the Queensland Court of Appeal. The appellant had been convicted of unlawfully transmitting a serious disease to another with intent to do so under s 317(b) of the Criminal Code (Q). The High Court held (at [14]) that ‘[w]here proof of the intention to produce a particular result is made an element of liability for an offence under the Code, the prosecution is required to establish that the accused meant to produce that result by his or her conduct…knowledge or foresight of result, whether possible, probable or certain, is not a substitute in law for proof of a specific intent under the Code.'
Read the decision on the High Court of Australia website.
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| Mok v Director of Public Prosecutions (NSW) [2016] HCA 13
6 April 2016
In brief: The High Court held that s 89(4) of the Service and Execution of Process Act 1992 (Cth), which in part provides that ‘[t]he law in force in the place of issue of a warrant, being the law relating to the liability of a person who escapes from lawful custody, applies to a person being taken to the place of issue...’, picked up and applied s 310D of the Crimes Act 1900 (NSW) in circumstances where the appellant attempted to escape while being transferred from Victoria to New South Wales (where a warrant had been issued). Section 310D provides, in part, that is an offence for an inmate to escape or attempt to escape from lawful custody. In issue in the High Court was whether s 89(4) picked up the ‘inmate’ element of the s 310D offence ([4]); French CJ and Bell J held that it did not because the text, context and purpose of s 89(4) both limits the class of State laws capable of application under s 89(4) ([38]) and can modify those State laws so that the purpose of the federal law is not defeated ([36] and [42]). For Kiefel and Keane JJ, ‘s 89(4) more directly answers the question’ because it refers to a ‘law relating to the liability of a person who escapes from lawful custody’ ([57]–[58]).
Read the decision on the High Court of Australia website.
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| IMM v The Queen [2016] HCA 14
14 April 2016
In brief: The High Court allowed an appeal from a decision of the Northern Territory Court of Criminal Appeal concerning the admissibility of tendency and complaint evidence and thus the proper construction of the Uniform Evidence Act. The trial judge admitted the tendency evidence under s 97(1)(b) of the Evidence (National Uniform Legislation) Act (NT), ruling that it had ‘significant probative value’. In relation to the complaint evidence, the trial judge applied the s 66 Evidence Act exception to the hearsay rule and admitted the evidence over the appellant’s objection based on s 137 (that its probative value was outweighed by the danger of unfair prejudice). The High Court held that the probative value of evidence under ss 97 and 137 is to be determined by a trial judge on the assumption that the jury will accept the evidence (at [39]). Hence the credibility and reliability of the evidence is not to be considered (at [39]).
Read the decision on the High Court of Australia website.
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| Coverdale v West Coast Council [2016] HCA 15
14 April 2016
In brief: The High Court unanimously dismissed an appeal from the Full Court of the Supreme Court of Tasmania and held that the seabed and waters of Macquarie Harbour are Crown lands within the meaning of s 11(1) of the Valuation of Land Act 2001 (Tas). The issue on appeal was ‘whether the meaning of "Crown lands" in s 11(1) of the [Valuation of Land Act 2001 (Tas)] is restricted by what is said to be the ordinary signification of "land", and as such excludes the seabed and waters above it, or whether "Crown lands" in s 11(1) means "Crown land" as defined in the [Crown Lands Act 1976 (Tas)], and hence "includes land covered by the sea or other waters, and the part of the sea or those other waters covering that land’ (at [16]). This question was resolved by ‘regard to the text of the statute as a whole, and the subject, scope and purpose of the statute and against the legislative history and antecedent circumstances.'
Read the decision on the High Court of Australia website.
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| | Court of Appeal of New South Wales
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| Roads and Maritime Services v Allandale Blue Metal Pty Ltd [2016] NSWCA 7
9 February 2016 - Basten and Ward JJA and Sackville AJA
Justice Basten, with whom Ward JA agreed, briefly summarised the administrative law concept of ‘relevant consideration’ (at [13]):
[13] For this purpose, the term “relevant consideration” adopted the concept articulated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 39] namely that the judge failed to take into account a factor which she was bound, as a matter of law, to take into account. Such factors, if not expressly stated, may be identified by reference to the subject matter, scope and purpose of the Act.
Read the decision on the NSW Caselaw website. |
| Trad v Harbour Radio Pty Ltd [2016] NSWCA 80
18 April 2016 - McColl, Basten and Ward JJA
Justice Basten, with whom McColl and Ward JJA agreed, considered how the ‘slip rule’ should be construed (at [24]-[25]):
[24] Part 36, Div 4 of the UCPR deals with the “setting aside and variation of judgments”. Rule 36.17, headed “Correction of judgment or order (‘slip rule’)”, is in the following terms:
If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.
[25] Rules in similar terms have existed for a long time. The rule uses language which is open to a broad or a narrow construction. One construction is that there has to be a “slip” on the part of the court, as a result of which its intention is not fully or correctly expressed in the orders made. That is the narrow reading. The broad reading allows that the accidental slip or omission, which gives rise to an error, may be that of a party (or of the court). The latter construction has been accepted as conventional by the High Court: see L Shaddock & Associates Pty Ltd v Council of the City of Parramatta [No 2], [7] followed in Commonwealth of Australia v McCormack [8] and Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 2]. [9] Although the line of authority was concerned with the High Court rules, the English authorities relied on demonstrated that there was no intention to restrict the principles so as not to be applicable in intermediate courts of appeal or, indeed, any court having a power expressed in similar terms.
Rule 36.17 is roughly equivalent to the slip rule in s 63 of the Civil and Administrative Tribunal Act 2013 (NSW).
Read the decision on the NSW Caselaw website.
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| | Federal Court of Australia
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| Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61
14 April 2016 - North, Kenny and Perry JJ
The Full Federal Court provided guidance on the meaning of ‘legal reasonableness’ in the context of the exercise of a statutory power:
[63] A statute which grants a power is presumed to require that the power be exercised in accordance with reason. When assessing whether a power has been exercised reasonably the Court exercises a supervisory jurisdiction. Hence, it is not entitled to substitute its own view for the view of the decision maker entrusted with the power. Rather, the Court enquires whether the decision was made within the bounds of legal reasonableness. It is not the role of the Court to determine whether it would have come to the same view or not.
[64] The starting point for the inquiry is a consideration of the scope and purpose of the statutory power. A decision is legally reasonable only if it falls within the statutory boundaries. Many different descriptions of what amounts to unreasonableness in the exercise of statutory power have been formulated by the courts. A decision which is so unreasonable that a reasonable decision maker could not have arrived at it falls outside the standard of reasonableness. But unreasonableness is not confined to that category of decision. For instance, it extends to a decision which lacks an evident and intelligible justification… Thus, a decision will be unreasonable if the power to make it is exercised according to private opinion or humour, if it is made dishonestly, capriciously, arbitrarily or if it lacks a rational ground for belief.
Read the decision on the Federal Court of Australia website.
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| | Supreme Court of New South Wales
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| Veda Advantage (Australia) Pty Ltd v de Beer [2016] NSWSC 37
9 February 2016 - Black J
Justice Black considered the well-established principles of the construction of commercial contracts, including employment contracts, to include:
[24] “… that [such contracts] be construed objectively, by reference to a reasonable business person’s understanding of the relevant terms, and [the principles] permit the Court to have regard to the surrounding circumstances known to the parties and the commercial purposes or objects to be secured by the contract: Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 at [35].”
Read the decision on the NSW Caselaw website.
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| Jewelsnloo Pty Ltd v Sengos (No 2) [2016] NSWSC 61
21 February 2016 - Robb J
The plaintiff, Jewelsnloo Pty Ltd, purchased a business and subsequently brought proceedings arguing that ‘it was induced to enter into and complete the contract of sale by misleading and deceptive conduct engaged in by [the business’s founder] and [the vendors].’ In dismissing this claim, Robb J held that it would be wrong for the court to ignore the effect of an own enquiries clause:
[144] At the end of the process of negotiations Jewelsnloo signed a contract of sale in which it warranted that it had made its own enquiries regarding any financial return or income which may be derived from the business (clause 5.2.2), and that it did not rely on any representation whether oral or in writing made by the vendor in respect of the subject matter of the agreement other than those expressly contained in it (clause 5.2.5).
[145] It may be that the existence of acknowledgements and warranties such as those contained in the confidentiality agreement and the contract of sale are not always absolutely effective to prevent a purchaser relying upon a false representation that has induced it to enter into the contract of sale: see for example Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592.
[146] However, in my view it would be wrong for the court lightly to ignore the effect of such provisions in arm’s length commercial transactions in which the parties are professionally represented. Terms of this nature should not be treated as mere verbiage. If a potential purchaser does not want its rights to be governed by such terms, it may insist upon a variation to the agreement, or decline to proceed with it. Terms of this nature are important to the way that the parties have agreed to divide between them the risk of error being made by one party or the other. Vendors are likely implicitly to conduct the negotiations on the basis that the purchaser has accepted the obligation to make its own enquiries, and to judge the risks of the transaction on the basis that the provisions govern the distribution of risk between the parties; and the vendor is likely to provide information to the purchaser without taking the care to protect the vendor’s own interests that would be necessary if the vendor could not rely upon the provisions. As the present case to some extent demonstrates, not all matters relevant to the operation of the business are black and white and capable of absolute demonstration. It is a perfectly sensible commercial arrangement that the agreements apportion the obligation to make enquiries about the operation of the business and the risk of error as between the parties.
Read the decision on the NSW Caselaw website.
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| In the matter of HIH Insurance Limited (In Liquidation) (ACN 008 636 575) [2016] NSWSC 482
20 April 2016 - Brereton J
The plaintiffs, shareholders in HIH, alleged that HIH’s financial results contained and conveyed representations which were misleading and deceptive, or likely to mislead or deceive, and that by publishing them, HIH contravened s 52 of the old Trade Practices Act 1974 (Cth) (TPA) (which has now become s 18 of the Australian Consumer Law (ACL)) and ss 995 and/or 999 of the Corporations Law (Cth). The plaintiffs contended that two subsidiaries of HIH were knowingly concerned in those contraventions so as to incur accessorial liability. Justice Brereton considered the accessorial liability provisions in both the old TPA and Corporations Law (which are also applicable under the ACL), holding (at [21], [22] and [25], footnotes omitted):
[21] To incur accessorial liability under these provisions, the alleged accessory must have, with actual knowledge of the essential facts which made what was done by the principal contravener a contravention, in some way participated in, assisted or encouraged the contravention. A director is not a party to the corporation’s contraventions merely by being a director; to be party to a contravention, the alleged accessory must be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention. Thus, there are two elements of accessorial liability: knowledge, and participation.
[22] In respect of the “participation” element, what is required is merely the doing of something which acted to help, encourage or induce the contravention. The accessory “must merely have done something to assist or encourage the bringing about of the contravention”.
[25] But mere participation, though essential, is insufficient to attract accessorial liability; such participation must be accompanied by knowledge by the participant of the essential matters that constitute the contravention (whether or not he or she knew that those matters were in law a contravention). This means actual knowledge of the putative accessory, and not such knowledge as might be postulated of a hypothetical person in his or her position, although actual knowledge may be established by inference from the surrounding circumstances. The knowledge of a corporation can be established by the knowledge of a director, servant or agent by whom the relevant conduct was engaged in within that person’s actual or apparent authority. Justice Brereton also considered in depth (at [37]-[78]) the element of causation in the statutory causes of action under the old TPA and Corporations Law, which arises from the relevant provisions requiring that ‘the plaintiffs have suffered loss or damage “by” the contravening conduct.’ Among other rulings, Brereton J held (at [50]):
[50] The above authorities establish that proof of reliance on the contravening conduct is not an essential element of a cause of action for damages under TPA, s 82. A sufficient causal connection can be established in ways that do not involve the applicant directly relying on the contravening conduct.
Read the decision on the NSW Caselaw website. |
| Gardez Nominees Pty Ltd v NSW Self Insurance Corporation [2016] NSWSC 532
28 April 2016 - Hammerschlag J
Gardez Nominees Pty Ltd (Gardez), the plaintiff, financed a residential strata development embarked upon by Railway Land Holdings Pty Ltd (Railway) and took a took a registered mortgage over the development as security. Railway took out home warranty insurance with the defendant ‘covering Railway for loss or damage resulting from non-completion of the work because of the insolvency of the builder or arising from a breach of the statutory warranties, which Railway could not recover from the builder or have the builder rectify because of the builder’s insolvency’ ([9]). The builder became insolvent, its work unfinished and defective. Railway defaulted under its mortgage to Gardez and Gardez took possession of the land ([10]). Hammerschlag J answered the following questions:
Question 1: Is Gardez, by virtue only of becoming a mortgagee in possession, Railway’s successor in title within the meaning of s 18D(1) and s 99(1)(b) of the Act?
Answer: No.
Question 2: Is Gardez, by virtue only of becoming a mortgagee in possession, capable of becoming a non-contracting owner in relation to the building contract between Railway and the builder within the meaning of s 3, s 18D(1A) and s 99(2A) of the Act?
Answer: No
Question 3: If Gardez is a non-contracting owner in relation to the building contract, does s 99(2A) provide cover for the benefit of Gardez in relation to work done prior to 27 June 2014 in circumstances where Railway is a developer in relation to that work and therefore is not entitled to the benefit of cover under s 99(2)(a) and the policy?
Answer: Does not arise, but if Gardez was a non-contracting owner it obtained no right to claim against the insurer.
Question 4: Is Gardez a person on whose behalf work was done pursuant to the side deed, or alternatively pursuant to the building contract and therefore, upon becoming a mortgagee in possession on 27 June 2014, a developer in relation to the work done prior to 27 June 2014 within the meaning of s 3A(1) of the Act?
Answer: No.
Question 5: Is Gardez, by virtue only of becoming a mortgagee in possession on 27 June 2014, deemed to be a developer in relation to the work done prior to 27 June 2014 by s 3A(1A) of the Act?
Answer: No.
Read the decision on the NSW Caselaw website.
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| | Supreme Court of South Australia
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| Resi Corporation v Munzer [2016] SASCFC 15
2 March 2016 - Sulan, Stanley and Lovell JJ
Justice Lovell, with whom Sulan and Stanley JJ agreed, summarised Heydon J on the rationale of the obligation to give reasons at [69]–[70]:
[69] Heydon J in AK v Western Australia stated the reasons why there is an obligation on Judges to give reasons for their decisions. First, he said, there was an obligation to give reasons as it promotes good decision making, secondly, that general acceptability of judicial decisions was promoted by the obligation to explain them and finally, that it was consistent with the idea of democratic institutional responsibility to the public that those who are trusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give an account of their reasoning by which they came to that decision.
[70] Thus the duty to give reasons is a necessary incident of the judicial process. Failure to provide sufficient or adequate reasons can promote a sense of grievance and may deny the fact and the appearance of justice having been done. Failure to give adequate reasons is an error of law.
Read the decision on the BarNet Jade website.
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