| | | | | | | | NCAT Legal Bulletin Issue 2 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.
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| Bondelmonte v Bondelmonte & Anor [2017] HCA 8
1 March 2017 - Kiefel, Bell, Keane, Nettle, Gordon JJ
In brief: The High Court unanimously dismissed an appeal, with costs, from the Full Court of the Family Court of Australia. The appellant, the father of two boys and a girl, had separated from the first respondent, the children’s mother, in 2010. On 14 January 2016, the two boys were flown to New York for a holiday with the father. On 29 January 2016, the father informed the mother that he had decided to live in the United States indefinitely and that the boys would reside with him. At first instance, the Family Court (Watts J presiding) granted the mother’s application, under the Family Law Act 1975 (Cth), to secure the boys’ return to Australia. The father unsuccessfully appealed the trial judge’s decision to the Full Court of the Family Court, before commencing proceedings in the High Court.
The High Court (at [31]-[32]) stated that an order of the Family Court involved an exercise of judicial discretion and, therefore, could only be set side on appeal in the limited circumstance identified in House v The King (1936) 55 CLR 499 at 504-505, holding that:
“… [T]he question for the Full Court of the Family Court was whether the father had identified an error in the reasoning of the primary judge of the kind referred to in House v The King. It is only an error of this kind which will permit an appellate court to interfere with parenting orders made by a primary judge under s 65D of the Family Law Act…
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. …. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.”
Furthermore, the High Court (at [43]) endorsed the statement of Gummow J in Khan v Minister for Immigration and Ethnic Affairs unreported, Federal Court of Australia, 11 December 1987 at 11, observing that:
“The term “consider” imports an obligation to give proper, genuine and realistic consideration but this cannot affect or alter the terms of [s 60CC(3)(a) of the Family Law Act] so as to require a child's views to be ascertained.”
Read the decision on the High Court of Australia website.
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| Perara-Cathcart v The Queen [2017] HCA 9
1 March 2017 - Kiefel, Bell, Gageler, Keane, Nettle, Gordon JJ
In brief: The High Court dismissed an appeal from the Full Court of the Supreme Court of South Australia.
The appellant was convicted of rape and threaten to kill in the District Court. On appeal, the appellant contended that the trial judge had erred in a direction to the jury under s 34R of the Evidence Act 1929 (SA), concerning the use of discreditable conduct evidence. The Full Court dismissed the appeal. The appellant’s principal ground of appal was that the Full Court’s decision could not be sustained under s 353(1) of the Criminal Law Consolidation Act 1935 (SA) (CLC Act), on the basis that two of the three judges who dismissed the appeal did so on different grounds.
The High Court, by majority (Kiefel, Bell and Keane JJ, Gageler J, and Gordon J), dismissed the appeal. Gageler J provides a useful commentary (at [75]) on the “decision-making rule” and its application to a multi-member court, summarising the rule as follows:
“The decision-making rule [found in s 23(2) of the Judiciary Act 1903 (Cth)] applied to produce the order of a multi-member court in a case in which there is disagreement between its members is different in timing, concept and purpose from the principle applied in an attempt to extract a ratio decidendi from the reasons for decision of the members of that court in that case. The decision-making rule is applied at the time of decision. The rule is directed to ensuring an outcome in the case. When triggered by disagreement, the rule applies to produce a result. The principle is applied subsequently and in retrospect. The principle is directed to the ideal of ensuring that cases are decided consistently through time. The principle cannot be expected always to achieve that ideal. Every case must have an outcome, but not every case need have a ratio decidendi.”
Relevantly, s 57 of the Civil and Administrative Tribunal Act 2013 (NSW) is the equivalent provision that deals with the Tribunal’s approach to the determination of proceedings where members are divided in opinion.
Furthermore, Gageler J commented that the effect of the decision-making rule is to separate a court’s reasons from its orders, as it is the latter that forms the basis for an appeal from a decision, observing (at [79]) that:
“The majoritarian rule is not applied in respect of conclusions which each member has reached on issues arising in the process of reasoning to that opinion. The "question", in short, is as to the order not the reasons.”
Read the decision on the High Court of Australia website.
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| Prior v Mole [2017] HCA 10
8 March 2017 - Kiefel CJ, Bell, Gageler, Nettle, Gordon JJ
In brief: The High Court, by majority, dismissed an appeal from the Court of Appeal of the Supreme Court of the Northern Territory, finding that the apprehension of the appellant, under s 128(1) of the Police Administration Act (NT) (PA Act), was not unlawful. In doing so, the High Court held it was open to the Supreme Court to find that the apprehending officer had reasonable grounds to believe the appellant was likely to commit an offence.
Relevantly, s 128(1) of the PA Act provides that:
“(1) A member may, without warrant, apprehend a person and take the person into custody if the member has reasonable grounds for believing:
(a) the person is intoxicated; and
(b) the person is in a public place or trespassing on private property; and
(c) because of the person's intoxication, the person:
(i) is unable to adequately care for himself or herself and it is not practicable at that time for the person to be cared for by someone else; or
(ii) may cause harm to himself or herself or someone else; or
(iii) may intimidate, alarm or cause substantial annoyance to people; or
(iv) is likely to commit an offence.
The decision provides a useful summary on the principles governing the exercise of a power that is conditional on the existence of “reasonable grounds” of belief.
Gageler J explained (at [24]) the operation of s 128(1) in general terms (footnotes omitted):
“First, the member must have an actual subjective belief in the existence of each of the specified matters. Belief is more than "suspicion"; it is not merely an "apprehension" or even a "fear"; it is an actual "inclination of the mind". Second, the subjective belief of the member must be a belief that is formed by the member by reference to objective circumstances. The relevant objective circumstances are those known to and taken into account by the member in forming the belief. That is not to say that those circumstances might not include information provided to the member by someone else. Nor is it to say that the formation of the belief by reference to those circumstances might not involve an element of surmise or conjecture on the part of the member. Third, the objective circumstances by reference to which the belief is formed must be such as can be determined by a court to be "sufficient to induce that state of mind in a reasonable person". Even if the formation of the belief might involve an element of surmise or conjecture on the part of the member, the sufficiency of the objective circumstances to induce that belief in a reasonable person must be capable of appearing to the satisfaction of a court.”
On the issue of “belief”, Nettle J (at [73]) further observed that (footnotes omitted):
“… [D]epending on the circumstances, belief may leave "something to surmise or conjecture". And, as was stated in George v Rockett, while the objective circumstances necessary to found reasonable grounds to believe must point sufficiently to the subject matter of that belief, they need not be established on the balance of probabilities.”
Furthermore, on the issue of “reasonable grounds”, Nettle J stated (at [98]-[100]) (footnotes omitted):
“[98] When a statute prescribes that there must be "reasonable grounds" for a state of mind, it requires the existence of facts sufficient to induce that state of mind in a reasonable person. It is an objective test. The question is not whether the relevant person thinks they have reasonable grounds.
[99] In explaining the connection between the "reasonable grounds" and the requisite "belief", this Court in George v Rockett stated:
"The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof."
[100] Belief is not certainty. "Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture”.”Read the decision on the High Court of Australia website. |
| Minister for Immigration and Border protection v Kumar [2017] HCA 11
8 March 2017 - Bell, Gageler, Keane, Nettle, Gordon JJ
In brief: The High Court, by majority, allowed an appeal from Federal Court of Australia. The majority (Bell, Keane and Gordon JJ, and Gageler J) held that the Federal Court had erred in quashing the decision of the Federal Circuit Court below, finding that s 36(2) of the Acts Interpretation Act 1901 (Cth), properly construed, was not engaged. Accordingly, the High Court made orders reinstating the original orders of the Federal Circuit Court.
Section 36(2) of the Acts Interpretation Act relevantly provides that:
“(2) If:
(a) an Act requires or allows a thing to be done; and
(b) the last day for doing the thing is a Saturday, a Sunday or a holiday;
then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.”
A similar provision is found in r 6(4) of the Civil and Administrative Tribunal Rules 2014, which provides that:
“(4) If the last day for doing a thing is, or a thing is to be done on, a day on which the Registry is closed, the thing may be done on the next day on which the Registry is open.”
Gageler J (at [28])-[29] provides an instructive summary on the operation of “extension of time” provisions (footnotes omitted):
“[29] … If an Act allows an instrument attracting stamp duty to be stamped without penalty within a month of execution and the month expires on a Sunday, the effect of the sub-section is to allow the instrument to be stamped without penalty on the following Monday. If an Act allows a mortgagor to remedy a default by a date specified in a notice given to the mortgagor by a mortgagee in order to avoid foreclosure and the date so specified is a Sunday, the effect of the sub-section is to allow the mortgagor to remedy the default on the following Monday so as to avoid foreclosure. If an Act requires an action for damages to be commenced within three years after a cause of action accrues and the three years expires on a holiday, the effect of the sub-section is to allow an action to be commenced on the next day that is not a Saturday, a Sunday or another holiday. If an Act allows for the making of an order by a court extending the period at the expiration of which a creditor's petition will lapse at any time before the expiration of the period of 12 months from the date of presentation of the petition and that latter period expires on a holiday, the court can make the order on the next day that is not a Saturday, a Sunday or another holiday.
[30] Those examples do not exhaust the operation of the sub-section. They do illustrate when and how the sub-section operates. The sub-section operates when an Act expressly or by implication requires or allows something to be done within a period of time and where that period expires on a Saturday, a Sunday or a holiday. The sub-section then operates to extend the period within which the thing might be done to the next day that is not a Saturday, a Sunday or a holiday: it gives to the thing if done on that next day the same legal effect as the thing would have had if the thing had been done within the period required or allowed by the Act. That is the long and the short of it.”
Furthermore, Gageler J (at [32]-[33]) clarified that such a provision is not engaged in circumstances where there is no time limit imposed on the doing an act, such as, in the present case, the making of a visa application under s 45 of the Migration Act 1958 (Cth):
“[32] The problem with the argument is that it conflates the thing allowed to be done by the first respondent with the things required to be done by the Minister. The thing allowed to be done by the first respondent was the making of a valid application for the visa under s 45. The things required to be done by the Minister, following the making of a valid application, were consideration of the application under s 47 and the making of a decision under s 65(1) either to grant the visa under s 65(1)(a), if satisfied relevantly that the criteria prescribed by cl 572.211 were met, or to refuse to grant the visa under s 65(1)(b) if not so satisfied.
[33] Nothing in the Migration Act imposed any limit on the time for the making by the first respondent of a valid application under s 45 for a Subclass 572 (Vocational Education and Training Sector) visa. Irrespective of whether the first respondent made it on the Sunday on which he still held his Subclass 485 (Temporary Graduate) visa or on the following Monday, the making by him of a valid application had the same legal effect. The making of the application required the Minister to consider the application under s 47 and to make a decision under s 65(1). The circumstance of the application having been made on the Monday meant that the criterion prescribed by cl 572.211(2) could not be met and the Minister was obliged by s 65(1)(b) to refuse to grant the visa. Section 36(2) was not engaged, and had no relevant operation.”
Read the decision on the High Court of Australia website.
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| | Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
9 March 2017 - Basten, Gleeson and Leeming JJA
In brief: The Court of Appeal dismissed an appeal from Button J, following three years of litigation commencing with a decision of the Tribunal. In May 2015, the Tribunal affirmed the cancellation of the appellant’s licenses and security clearance held under the Explosives Act 2003 (NSW). In September 2015, the Appeal Panel dismissed an appeal. In July 2016, the Supreme Court dismissed an appeal from the Appeal Panel. An appeal was subsequently made to the Court of Appeal.
In dismissing the appeal, the Court of Appeal held that the Tribunal had not denied the appellant procedural fairness or otherwise erred because, inter alia, a failure to apply the Briginshaw test (at [122]-[132]).
The Court of Appeal upheld the decision of the Court below, stating at [127] that:
“In those circumstances, his Honour’s reasons … reflect the strictly correct proposition that neither Briginshaw [v Briginshaw (1936) 60 CLR 336] nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They [the trial judge’s reasons] should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings [Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171] reflects a more general approach to fact finding, which is applicable by analogy to NCAT.”
Furthermore, the Court of Appeal observed (at [141]) that procedural fairness did not require a decision-maker to “provide a running commentary of the individual findings which he or she may be contemplating”, holding that:
“[I]t was not necessary, in order for the hearing to take place in a way which was procedurally fair, for the member to advise that if she came to the view that Mr Boyle and Ms Rothwell were conducting the review on a way which demonstrated that they had a poor understanding of the legislation, that would be a factor on which she would rely in her assessment of fitness and propriety. There is no need, in order to accord procedural fairness, for a decision-maker to provide a running commentary of the individual findings which he or she may be contemplating: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48]. I do not consider that Bronze Wing has shown that either Mr Boyle or Ms Rothwell were under any illusions that their knowledge of the regime governing the handling of explosives was regarded as centrally relevant to whether they were fit and proper persons.”
Read the decision on the NSW Caselaw website.
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| Ellis's Town House Pty Ltd v Botan Pty Ltd [2017] NSWCA 20
17 February 207 - Gleeson, Leeming, Simpson JJA
In brief: The Court of Appeal considered the assessment of damages in circumstances where a tenant (Ellis) breached its lease with a landlord (Botan). In this case, the lease contained a covenant that required Ellis to maintain the leased premises, a motel, in a state of good condition and serviceable repair with repainting to occur during each five-year term of the lease. It was determined, at first instance, that Ellis had breached this covenant. The District Court awarded damages of $54,952.09, plus pre-judgment interest, to Botan, on a “cost of cure” basis.
Ellis sought leave to appeal the decision on the basis that the District Court applied the incorrect measure for damages, contending that damages should have been assessed on a “difference in value” basis. As no evidence had been led on any change in market value the motel, Ellis submitted that Botan should have been awarded nominal damages.
Gleeson JA (Leeming and Simpson JJA agreeing) refused to grant leave for appeal, finding (at [25]), inter alia, that the “present case does not raise any issue of principle”.
Following Progressive Mailing House v Tabali (1985) 157 CLR 17 at 29, the Court held that the “well-established principles” concerning the measure of damages for breach of contract apply to a lease. Accordingly, Gleeson JA held that the position in relation to damages for breach of contract was as stated by Parke B in Robinson v Harman (1848) 1 Exch 850 at 855:
“… The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed. …”
The Court proceeded to summarise several relevant High Court authorities concerning the award of damages for breach of contract, finding that the District Court was correct in assessing damages on a “cost of cure” basis. Its summary of principles is extracted below:
“[26] The corollary of the principle in Robinson v Harman is that a plaintiff is not entitled, by an award of damages, for breach of contract, to be placed in a superior position to that which he or she would have been in had the contract been performed: The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 82; [1991] HCA 54; Tabcorp at [27] (Crennan and Bell JJ), [60] (Gageler J). However that does not mean, as Ellis seemed to suggest, that Botan had suffered no loss because it had not yet incurred any expenditure in connection with painting and repairing the leased premises.
[27] In Clark v Macourt, (at [61]), Gageler J described the “expectation interest” which is protected by an award of damages for breach of contract at common law as reflecting the ruling principle and its corollary, and continued by explaining that:
The expectation interest is no less, but no more, than the interest protected by seeking "to give [a] promisee the value of the expectancy which the promise created”. In other words, it is the interest of the injured party "in having the benefit of [the contractual] bargain by being put in as good a position as he [or she] would have been in had the contract been performed".
[28] The importance of the interest protected by the contractual promise was emphasised by the High Court in Tabcorp (at [13]) when observing that the entitlement of the innocent party to be placed in the same situation as if the contract had been performed does not mean “as good a financial position as if the contract had been performed”. In some cases, ‘difference in value’ damages will, in others it will not, adequately compensate the innocent party for the loss of the benefit of the bargain. The High Court highlighted the significance of the interest protected when drawing a distinction in Tabcorp (at [13]), between the measure of damages:
1) for breach of a contract to deliver marketable commodities for which a market value analysis is usually available. The prima facie measure of damages being the difference in value between the contract goods and the goods supplied (as codified in the Sale of Goods Act 1923 (NSW), s 54(3)) will ordinarily restore the innocent party to the “same situation – as if the contract had been performed”; and,
2) other contractual promises, where in the absence of an available market, diminution in value damages will not restore the innocent party to the “same situation – as if the contract had been performed”.
[29] Whilst some authorities such as Hewitt v Rowlands [1924] All ER Rep 344 describe the ordinary or prima facie measure of damages for breach of a repairing covenant as the ‘difference in value to the tenant’ between the premises in the condition in which they are in and the condition the premises would have been in if the landlord had observed the repairing covenant, what is meant by ‘difference in value to the tenant’ can have various meanings depending on the circumstances of the case, including whether the tenant remains in possession, has sub-let the property or is forced to sell his or her interest: Calabar Properties at 295C-F (Stephenson LJ) and 299C-F (Griffiths LJ).
[30] This explains why the cost of alternative accommodation is recoverable by the tenant for breach of a landlord’s repairing covenant where the premises are uninhabitable for a period until the required repairs are undertaken and the tenant later returns: see Calabar Properties and Manning Motel. That the application of the ruling principle governing the measure of damages takes account of the “expectation interest” to be protected is well explained by Griffiths LJ in Calabar Properties, at 297:
The object of awarding damages against a landlord for breach of his covenant to repair is not to punish the landlord but, so far as money can, to restore the tenant to the position he would have been in had there been no breach. This object will not be achieved by applying one set of rules to all cases regardless of the particular circumstances of the case. The facts of each case must be looked at carefully to see what damage the tenant has suffered and how he may be fairly compensated by a monetary award.
Ultimately, the Court held that it would be inappropriate to award damages on a “difference in values” basis, as the leased premises was not equivalent to a marketable commodity:
[31] Contrary to Ellis’ submission, damages for breach of the lessor’s painting and repairing covenants are not susceptible to a market value analysis in the present case. The interest to be protected by an award of damages was the lessee’s interest in the maintenance of the motel premises in a state of good condition and serviceable repair with repainting during each five-year term of the lease. The benefit of the bargain cannot be equated with a marketable commodity. Nor is it to the point, as Ellis submitted that Botan could seek to sell its leasehold interest in the motel premises. Botan has not done so.”
See also: Leeming JA’s reasons at [47]-[60] as to what is or is not a marketable commodity.
Read the decision on the NSW Caselaw website.
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| Federal Court of Australia
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| Gore v Australian Securities and Investments Commission [2017] FCAFC 13
13 February 2017 - Dowsett, Rares and Gleeson J
In brief: The Full Court of the Federal Court of Australia considered the operation of accessorial liability provisions under s 1324(1) of the Corporations Act 2001 (Cth), which relevantly provide that:
“Where a person has engaged, is engaging or is proposing to engage in conduct that
constituted, constitutes or would constitute:
(a) a contravention of this Act; or
(b) attempting to contravene this Act; or
(c) aiding, abetting, counselling or procuring a person to contravene this Act; or
(d) inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene this Act; or
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act; or
(f) conspiring with others to contravene this Act;
the Court may, on the application of ASIC, or of a person whose interests have been, are or would be affected by the conduct, grant an injunction, on such terms as the Court thinks appropriate, restraining the first-mentioned person from engaging in the conduct and, if in the opinion of the Court it is desirable to do so, requiring that person to do any act or thing.”
Similar accessorial liability provisions are applicable under the Australian Consumer Law (ACL) because of the definition of “involved” in s 2(1) of the ACL which is relevant for s 236 (the damages provision in the ACL).
Dowsett and Gleeson JJ held that, for an accessory to be liable under s 1324(1), the alleged accessory must have actual knowledge of all the relevant factual circumstances of the principal offence, and not merely knowledge of the relevant law, holding that:
“[15] It is important to note that when, in Giorgianni, Wilson, Deane and Dawson JJ referred to, “a secondary participant (who) lacks knowledge that the principal offender is doing something or is about to do something which amounts to an offence”, their Honours were not suggesting that the alleged accessory had to know that the relevant circumstances constituted a contravention of the law. Such a proposition would have been quite inconsistent with Lord Goddard’s observation concerning ignorance of the law, with which observation their Honours apparently agreed. We make this point because, in some of the other cases concerning the question similar, superficially ambiguous passages appear. In our view, it is settled that in general, it is not necessary to prove knowledge of the law, or knowledge that a particular fact situation attracts legal consequences. That proposition applies to the proof of both principal and accessorial liability. Of course, the Parliament may legislate to contrary effect.
[16] Using the broad language of Mason J in Giorgianni at 494, the necessity of a “link” between the alleged accessory and the principal offender will not be established if the facts known to the alleged accessory demonstrate an apparently innocent act. In Giorgianni the unknown facts concerned the brake defects, not knowledge of the relevant law. In Yorke v Lucas, the absent knowledge was the misleading or deceptive nature of the representations, again not absence of knowledge of the relevant law. The point is that the provisions which establish accessorial liability, civil or criminal, generally use expressions such as “knowingly concerned in” or “aiding and abetting”. Those provisions have traditionally been construed as requiring actual knowledge of all relevant circumstances. This requirement comes from such accessorial provisions, not from the provisions creating the relevant principal contravention. As a result, it is not uncommon for accessorial liability to depend upon knowledge, proof of which is not required in order to prove the contravention as against the principal offender.””
Read the decision on the Federal Court of Australia website.
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| Nichol v Discovery Africa Limited (No 2) [2017] FCAFC 39
3 March 2017 - Greenwood, McKerracher and Moshinsky JJ
In brief: The Full Court of the Federal Court of Australia was tasked with determining whether a successful appellant could recover costs, in circumstances where the appeal turned on a ground of appeal not obvious on the papers. As a starting point, the Full Court observed (at [1]) that the appellant “had not succeeded on most grounds of appeal and, to the extent that he did succeed, it was on a ground which was not particularly obvious from the grounds of appeal.”
The appellant submitted he should be awarded costs. However, he accepted that, if the Court considered there should be a reduction, a reasonable reduction should be applied of approximately 30 per cent (at [8]). Conversely, the respondent submitted that “the appeal was unfocussed and unreasonably prolonged the proceedings such that Mr Nichol should be disentitled to an award of costs” (at [10]).
Ultimately, the Full Court held that the appellant be awarded 50 per cent of his costs of the appeal, finding that the competing factors were (at [16]-[18]):
“[16] On the one hand:
(a) the appeal was rendered unnecessarily complicated and costly by reason of a significant number of unsuccessful grounds of appeal.
[17] On the other hand:
(b) not only did Mr Nichol ultimately succeed on his appeal in establishing that there was a triable issue, but also the potential complexity of that issue meant that the issue was not readily suited to a summary judgment application and might have been better dealt with by an expeditious hearing on the narrow point of fact.
[18] These countervailing considerations are finely balanced. There should be a reduction in the costs award which would normally follow the event, having regard to the first of these considerations. However, taking into account the second consideration, the orders sought by Discovery Africa reflect too great a counter balance.”
Read the decision on the Federal Court of Australia website.
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| Minister for Immigration and Border Protection v SZVFW [2017] FCAFC
March 2017 - Griffiths, Kerr and Farrell JJ
In brief: The Full Court of the Federal Court of Australia considered the principles concerning unreasonableness in the legal sense, in circumstances where judicial review had been sought in relation to a decision of the AAT concerning the exercise of a statutory discretion by the Minister’s delegate.
The Full Court (at [38]-[39]) summarised a list of general principles on legal unreasonableness in this context, drawn from the leading Full Federal Court and High Court authorities of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 listed below:
“[38] …
- there is a legal presumption that a statutory discretionary power must be exercised reasonably in the legal sense of that word (Li at [63] per Hayne, Kiefel and Bell JJ; Singh at [43] per Allsop CJ, Robertson and Mortimer JJ; Stretton at [4] per Allsop CJ and at [53] per Griffiths J);
- nevertheless, there is an area within which a decision-maker has a genuinely free discretion, which area is bounded by the standard of legal reasonableness (Li at [66]; Stretton at [56] per Griffiths J);
- the standard of legal reasonableness does not involve a court substituting its view as to how a discretion should be exercised for that of a decision-maker (Li at [66]; Stretton at [8] per Allsop CJ) and [76] per Griffiths J);
- the legal standard of reasonableness is not limited to what is in effect an irrational, if not bizarre, decision and an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified (Li at [68]);
- in determining whether in a particular case a statutory discretion has been exercised unreasonably in the legal sense, close attention must be given to the scope and purpose of the statutory provision which confers the discretion and other related provisions (Li at [74]; Stretton at [62] and [70] per Griffiths J);
- legal unreasonableness “is invariably fact dependent” and requires a careful evaluation of the evidence. The outcome of any particular case raising unreasonableness will depend upon an application of the relevant principles to the relevant circumstances, rather than by way of an analysis of factual similarities or differences between individual cases (Singh at [48]; Stretton at [10] per Allsop CJ and at [61] per Griffiths J);
- the concept of legal unreasonableness can be “outcome focused”, such as where there is no evident and intelligible justification for a decision or, alternatively, it can reflect the characterisation of an underlying jurisdictional error (Singh at [44]; Stretton at [12]-[13] per Allsop CJ);
- where reasons are provided, they will be the focal point for an assessment as to whether the decision is unreasonable in the legal sense and it would be a rare case to find that the exercise of a discretionary power is legally unreasonable where the reasons demonstrated a justification (Singh at [45]-[47]).
[39] It is not suggested that this summary is exhaustive. As has been emphasised, the proper elucidation and explanation of concepts of jurisdictional error and legal unreasonableness “does not depend on definitional formulae or on one verbal description rather than other” (Stretton at [2] per Allsop CJ and at [62] per Griffiths J). These statements of general principle provide guidance to the often difficult task of determining whether or not the exercise of a discretionary power involves legal unreasonableness. As Allsop CJ emphasised in Stretton at [2], it is unhelpful to approach the task by seeking to draw categorised differences between words and phrases such as “arbitrary, capricious, illogical, irrational, unjust, and lacking evident or intelligent justification, as if each contained a definable body of meaning separate from the other”. Rather, such concepts are expressed as “abstractions applying to the infinite variety of decision-making under variously expressed statutory provisions, in a wide variety of legal contexts” (Stretton at [3] per Allsop CJ).”
Read the decision on the Federal Court of Australia website.
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| | The Owners - Strata Plan No 13631 v McGrath & Anor (No 1) [2016) NSWSC 1929
21 October 2016 - Adam J
In brief: The Supreme Court of New South Wales quashed a decision of the Tribunal, finding that it was infected with jurisdictional error. The Tribunal at first instance dismissed an application brought under the Strata Schemes Management Act 1996 (NSW) and ordered the plaintiff to pay the defendant’s costs. The applicant challenged the Tribunal’s power to award costs. The parties agreed that the decision in relation to costs should be quashed and the summons otherwise dismissed. They did not agree upon costs of the judicial review application.
In an ex tempore judgment, Adams J (at [12]-[15]) held that the Tribunal had made a jurisdictional error in making the costs order against the plaintiff, noting that:
“[12] There is no power to award costs under s 204 of the Strata Schemes Management Act in the circumstances that were before the Tribunal member.
[13] Section 204(1) provides as follows:
“The Tribunal may also make an order for the payment of costs when making an order requiring the payment of a pecuniary penalty under this Part.”
[14] The power to award costs in s 204 is thus pre-conditioned on there having already been an order made requiring the payment of a pecuniary penalty. No such order was made by the Tribunal.
[15] The Strata Schemes Management Act confers a power upon the member on conditions. The failure to exercise the decision-making power in accordance with the terms on which jurisdiction was conferred amounts to jurisdictional error, having regard to the language of the statute: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 196.”
Read the decision on the NSW Caselaw website.
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| Tarabanko v Galachov [2017] NSWSC 187
16 February 2017 - Garling J
In brief: The Supreme Court of New South Wales held that the Local Court had committed an error of law, in the exercise of its discretion to refuse the appellant’s application to rely on evidence merely because it had not been filed and served and, again, in the exercise of its discretion in failing to allow the appellant further time to serve that evidence, produce it to the Court, and rely upon it (at [41]).
Although Garling J accepted (at [35]) that “the work load in the civil jurisdiction of the Local Court is notoriously heavy”, his Honour acknowledged (at [36]) that deference must be given to the overriding purpose of the Civil Procedure Act 2005 (NSW) (CP Act) and the rules of the Court: “namely, the facilitation of the just, quick and cheap resolution of the real issues in the proceedings”, as contained within s 56 of the CP Act (see also s 36(1) and (2) of the NCAT Act).
Importantly, the Court observed that the Magistrate should have given greater consideration to the reasonableness of the appellant’s explanation for his failure to serve the evidence and the injustice that her refusal caused to the appellant, finding that:
“[42] I have come to that conclusion because I am well-satisfied that, firstly, the appellant offered an entirely reasonable explanation for his failure to serve the evidence. That is, that he found the directions confusing. He did not appreciate with any clarity that he was obliged to provide the material to the other side before the review date, and certainly did not appreciate that he was obliged to file it before the hearing date.
[43] Secondly, her Honour failed to satisfy herself as to whether the refusal to accept that evidence would produce injustice to any degree at all, including substantive injustice. Had she looked at the material which has been put before this Court, she would readily have come to the conclusion that the material permitted a substantive contest on the matters in issue between the parties, and that it demonstrated that there were contested issues to be determined in the proceedings before her.
[44] Of particular importance was that the Magistrate failed to inquire, and the respondent failed to inform her, about the existence of any prejudice in the event that the evidence was to be relied upon. As far as I can see, the material which the appellant sought to rely upon went to facts surrounding the events the subject of the claim. There is no reason to think that the respondent in the Local Court could not have adequately dealt with the new material during his evidence in the course of proceedings. There is no reason to see why the proceedings could not have proceeded to a full and complete hearing on 12 May 2016, with both parties having the opportunity to put all of their evidence before the Court. Alternatively, if the respondent could not do so, then the Magistrate needed to, but did not, consider what adjournment was necessary, what the additional costs occasioned by that adjournment would be and what other prejudice existed.
[45] This is particularly important in circumstances where the standard directions did not provide, pursuant to r 31.4 of the Uniform Civil Procedure Rules (“UCPR”), that statements were to stand as evidence-in-chief of the parties and witnesses in the proceedings. Moreover, no direction was given that proceedings would proceed either by way of written evidence or by written statement. In other words, in the absence of specific directions, the default method of proceeding for a hearing in the Local Court is by the calling of oral evidence: see UCPR 31.1(2). No consideration seems to have been given to this.
[46] Most importantly, the learned Magistrate's decision fails to reveal that she gave any consideration at all to that which she was statutorily obliged to, namely, the requirements of the dictates of justice in the particular circumstances of the case.”
Read the decision on the NSW Caselaw website.
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