| | NCAT Legal Bulletin Issue 2 of 2018
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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 March to April 2018.
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| In the matter of questions referred to the Court of disputed returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Ms Jacqui Lambie - [2018] HCA 6
14 March 2018 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
In brief: The High Court held by majority (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) that a mayor or councillor of a local council was not incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution.
Section 44 of the Constitution provides:"Any person who:
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(iv) holds any office of profit under the Crown, or any pension payable during the
pleasure of the Crown out of any of the revenues of the Commonwealth; …
shall be incapable of being chosen or of sitting as a senator or a member of the House of
Representatives.
… In construing s 44(iv), the majority considered its statutory context [6], our pre-federation history see [17] and [21] and the purpose to which the provision is directed see [22] – [23].
The High Court noted at [28] that:
[Section] 44(iv) can be seen to be quite narrowly tailored to eliminate a particular form of conflict of duty and interest. The targeted conflict is between the parliamentary duty of a senator or member and a pecuniary interest of a kind which, if permitted, would give rise to a real capacity for executive influence over the performance of that duty. The particular form of conflict to which the first clause of the provision is addressed is that which would arise from a senator or member being able to hold at the will of an executive government an office in respect of which he or she receives a financial gain.
Read the decision on the High Court of Australia website.
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| Kalbasi v Western Australia [2018] HCA 7
14 March 2018 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
In brief: The High Court dismissed an appeal from the Western Australian Court of Appeal, with a majority (Kiefel CJ, Bell, Keane, and Gordon JJ) holding that a misdirection at the appellant's trial did not lead to a substantial miscarriage of justice under s 30 of the Criminal Appeals Act 2004 (WA).
In doing so, the majority asserted that making such an assessment can only be achieved on a case by case basis at [16]:
It is not possible to describe the metes and bounds of those wrong decisions of law or failures of trial process that will occasion a substantial miscarriage of justice notwithstanding the cogency of proof of the accused's guilt. As was established in Weiss v The Queen (2005) 224 CLR 300, the fundamental question remains whether there has been a substantial miscarriage of justice. That question is not answered by trying to identify some classes of case in which the proviso can be or cannot be applied. Classifications of that kind are distracting and apt to mislead.
Read the decision on the High Court of Australia website.
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| Irwin v The Queen [2018] HCA 8
14 March 2018 – Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ
In brief: The High Court dismissed an appeal with a majority (Kiefel CJ, Bell, Keane, and Gordon JJ) holding that the Queensland Court of Appeal had not erred in finding that a jury's verdict of guilty was not unreasonable or incapable of being supported by the evidence.
In assessing the reasonableness of the verdict, and whether the jury were properly directed, the Court held at [52] that all that relevantly needed to be foreseen “was that harm of the kind in fact suffered was a possible consequence” and at [45]:
[T]he jury were properly directed that, in order to find the appellant guilty of the offence of unlawfully causing grievous bodily harm, they had to be satisfied beyond reasonable doubt that an ordinary person in the appellant's position would reasonably have foreseen the possibility that [the victim] would sustain grievous bodily harm, and they were further correctly directed that what the ordinary person would need to have foreseen was a real and not theoretical possibility of harm. … [T]here is no reason to doubt that the jury adhered to those directions, or cause to doubt the reasonableness of the verdict on that basis.
Read the decision on the High Court of Australia website.
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| Pike v Tighe [2018] HCA 9
14 March 2018 – Kiefel CJ, Bell, Keane, Gordon and Edelman JJ
In brief: The High Court allowed an appeal from the Queensland Court of Appeal, regarding the obligations of a successor in title to ownership of a parcel of land, created by the reconfiguration of a larger parcel, arising out of the conditions of approval for the reconfiguration.
The majority (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) held that s 245 of the Sustainable Planning Act 2009 (Qld) (the Act) obliges a successor in title to comply with a condition of approval for the reconfiguration which the previous owner had not satisfied. Further, the Court found that the Planning and Environment Court of Queensland may make an "enforcement order" under ss 601, 604 and 605 of the Act requiring the successor in title to fulfil the condition.
The Court determined that the Court of Appeal had adopted too narrow an interpretation of s245 of the Act [38] – [39]:
Given that a development approval is generally regarded as "a consent to the world at large in relation to the land which is its subject", s 245 serves the readily intelligible purpose of ensuring that the terms of any development approval regulating the use and occupation of land may be enforced against successors in title to the land. There is no reason to minimise the effect of conditions upon land use and occupation imposed in the public interest by straining against the natural and ordinary meaning of the provision.
On the subject of enforcement of conditions of approval, the Court held that [46]:[T]he effect of the Act is not that a person is guilty of an offence at the moment he or she purchases land which does not comply with a condition. Rather, an offence will be committed when a reasonable time to comply with the condition has elapsed or if there is a peremptory refusal to comply with the condition.
Read the decision on the High Court of Australia website.
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| Re Kakoschke-Moore [2018] HCA 10
21 March 2018 – Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
In brief: The High Court, sitting as the Court of Disputed Returns, considered whether, by reason of s 44(i) of the Constitution (which renders a subject or a citizen of a foreign power incapable of being chosen or of sitting as a senator), there was a vacancy in the representation of South Australia in the Senate for the place for which Ms Skye Kakoschke-Moore, a British citizen at the time of nomination, was returned; and if so, how that vacancy should be filled.
The Court unanimously held that the vacancy should be filled by special count of the votes cast during the relevant poll, as Ms Kakoschke-Moore, despite having renounced her British citizenship before that date, was nonetheless ineligible.
In its reasoning, the Court explained the operation of s 44 of the Constitution as follows:
[28] In Re Nash (No 2) [2017] HCA 52, this Court held that the process of "being chosen" to which s 44 refers is a process of electoral choice that commences at the date of nomination and continues until the completion of the legislated processes for election that facilitate the choice by the people that the Constitution requires. …
[29] … Ms Kakoschke-Moore, who was a citizen of a foreign power from the beginning of and during most of this process, is not now able to be included in the special count for the purpose of completing the electoral process, of which nomination is an essential part. Ms
Kakoschke-Moore was not eligible to be chosen as a senator at that time; and her candidacy thereafter was without legal effect.
[30] A special count is part of the electoral process; it is not some separate, new electoral process by which a new choice is to be made. …
Read the decision on the High Court of Australia website.
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| Alley v Gillespie [2018] HCA 11
21 March 2018 – Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
In brief: The High Court, exercising its original jurisdiction, held that it neither could nor should decide whether the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of s 3 of the Common Informers Act.
The majority (Kiefel CJ, Bell, Keane, and Edelman JJ) found that at [4]:
Whether the defendant is incapable of sitting as a member of the House of Representatives by reason of the Constitution is a question to be determined by that House unless it resolves to refer the matter to the Court of Disputed Returns pursuant to s 376 of the Commonwealth Electoral Act 1918 (Cth).
Read the decision on the High Court of Australia website.
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| Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018] HCA 12
21 March 2018 – Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ
In brief: The High Court unanimously allowed an appeal from the Full Court of the Supreme Court of South Australia holding that the general power of a court to set aside its perfected judgment requires actual fraud. It was further held that it is nonetheless not a precondition to the exercise of the power that the party seeking to set aside the judgment exercised reasonable diligence to attempt to discover the fraud during the proceedings.
In reaching this conclusion, the Court held at [41] that:
It would be inconsistent with both principle and a long historical foundation to extend the general power beyond actual fraud.
Highlighting the narrow scope of the general power of a court to rescind a judgment for fraud, the Court reiterated the remarks of Rolt LJ, in Patch v Ward (1867) LR 3 Ch App 203 at 212-213 at [55]:
… [T]he fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case, and obtaining that decree by that contrivance. Mere constructive fraud not originating in actual contrivance, but consisting of acts tending possibly to deceive or mislead without any such intention or contrivance, would probably not be sufficient … to set aside the order which has been made. What, therefore, the Appellant has to do is to satisfy the Court that the decree was obtained by the positive and actual fraud and contrivance of the party obtaining it."
In rejecting the proposition that there was a requirement to exercise reasonable diligence to discover the fraud, the Court pointed to Brennan J’s rule of thumb in Gould v Vaggelas (1984) 157 CLR 215 at 252; [1984] HCA 68 that ...“a knave does not escape liability because he is dealing with a fool.” [63]
Read the decision on the High Court of Australia website. |
| Craig v The Queen [2018] HCA 13
21 March 2018 – Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
In brief: The High Court unanimously dismissed an appeal from the Queensland Court of Appeal holding that there had been no miscarriage of justice arising from the accused’s choice, on the basis of incorrect legal advice, not to give evidence.
The Court reasoned as follows [34]:
…It would be unrealistic not to recognise that the reliability of an accused's honest evidence on appeal, that he or she would have given evidence had the incorrect legal advice not been given, may be affected by an element of hindsight reasoning. And, as here, the decision not to give evidence may be the product of a combination of factors, not all of which are tainted by the incorrect legal advice. The conclusion that the trial of an accused was not a fair trial requires the appellate court to be satisfied that it was the accused's wish to give evidence and that the incorrect legal advice effectively deprived the accused of the opportunity to do so.
In the circumstances of the present appeal, however, this conclusion could not be reached. First, because the appellant knew he had the right to give evidence and understood that there was significant tactical merit in not giving evidence, such that his decision was an informed one [35]. Second, and more importantly, it was not the case that absent the incorrect advice the appellant would have given evidence [37].
Read the decision on the High Court of Australia website.
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| | Summaries of latest decisions of interest from March - April 2018. |
| Supreme Court of New South Wales
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| The Owners Strata Plan No 68976 v Nicholls [2018] NSWSC 270
06 March 2018 – Rothman J
In brief: The Supreme Court dismissed an appeal from a decision of the Tribunal on the basis that none of the grounds raised by the plaintiff raised “a question of law” in accordance with the jurisdictional gateway to s 83(1) of the NCAT Act.
The appeal was based upon s 83(1) of the NCAT Act, which provides that the plaintiff may appeal to the Supreme Court “on a question of law”, subject to the provision of leave [13].
The Court referred to the High Court decision in Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88, which discussed the meaning of the expression “a question of law” at 301-302 [16]:
An appeal lies on ‘a question of law alone’. An appeal does not lie on a ground which involves a mixed question of fact and law …
Applied to the facts of the present appeal, the Court held that [115] – [116]:Although some of the grounds may, in a hypothetical or theoretical sense, raise on appeal “a question of law”, such a question depends upon a conclusion of fact that has not been established by the plaintiff in the proceedings before the Court. …
Further, on the issue of the rejection of evidence, NCAT is not bound by the rules of evidence and no legal error is committed by the rejection of evidence on a basis that is rational and that is not unreasonable, capricious or arbitrary. The plaintiff has not disclosed that the rejection of evidence, to the extent evidence was rejected, was in the latter category.
Read the decision on the NSW Caselaw website.
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