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| | NCAT Legal Bulletin Issue 2 of 2021
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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 features case summaries of recent decisions from the New South Wales Court of Appeal, Western Australian Court of Appeal, Administrative Appeals Tribunal and the Federal Court of Australia, including:
- Vitality Works Australia Pty Ltd v Yelda [2021] NSWCA 4 – in which the Court of Appeal refused the application of Vitality Works Australia Pty Ltd for a stay of a damages hearing at NCAT, pending the determination of its application for leave to appeal about the question of liability, following a finding at NCAT that Vitality Works had discriminated against the respondent on the basis of her sex.
- AAI Ltd t/as AAMI v Chan [2021] NSWCA 19 – in which the Court of Appeal allowed the appeal of the insurance company AAI Ltd, and found that the primary judge had misconstrued the statutory test under s 62(1A) of the Motor Accidents Compensation Act 1999 (NSW), in finding that the proper officer had either posed the wrong question or improperly limited the scope of her inquiry. The Court found that the proper officer applied the correct question, and commented on the need to carefully distinguish between error on the face of the record and jurisdictional error.
- Lawson v Minister for Environment and Water (SA) [2020] NSWCA 6 – in which the Court of Appeal found in favour of the appellant, who sought compensation as a descendant of the holders of possessory or native title to lands in the Lake Victoria Area, the fee simple of which was once held by South Australia.
- The Trust Company (Australia) Ltd v Hungry Jack’s Pty Ltd [2021] WASCA 29 – in which the Court of Appeal of Western Australia refused an appeal from an interlocutory decision to make a decision on the papers. The Court found that the circumstances did not give rise to a need for an oral hearing, and that procedural fairness was afforded to the parties.
- Dreyfus v Attorney-General (Commonwealth of Australia) [2021] AAT 1249 – in which the Administrative Appeals Tribunal, considering the political purpose of media statements made by the Attorney-General, found that he had partially waived legal professional privilege in relation to documents containing advice from the Australian Government Solicitor regarding the Medivac legislation.
- Ryan v Commissioner of Police, NSW Police Force (No 2) [2021] FCA 106 – in which the Federal Court refused the appeal of a former NSW police officer who alleged discrimination on the basis of his disability by the NSW Police Force in its decision to revoke his appointment as a Leading Senior Constable. The Court found that there was no disability-based discrimination due to the nature of the Leading Senior Constable role.
This issue also provides links to a number of summaries published separately by the NSW Court of Appeal Decisions of Interest Bulletin.
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New South Wales Court of Appeal
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| Vitality Works Australia Pty Ltd v Yelda [2021] NSWCA 4
2 February 2021 - Payne JA
In sum: The Court of Appeal refused the application of Vitality Works Australia Pty Ltd (Vitality Works) for a stay of a damages hearing at NCAT, pending the determination of its application for leave to appeal about the question of liability, following a finding at NCAT that Vitality Works had discriminated against the respondent on the basis of her sex.
Facts: The respondent, Ms Reem Yelda (Ms Yelda), brought proceedings at the Tribunal for unlawful discrimination under the Anti-Discrimination Act 1977 (NSW), following the publication and display of a poster containing a photograph of her by the appellant and by Sydney Water Corporation, which was also party to the NCAT proceedings. The Tribunal and Appeal Panel found in Ms Yelda’s favour. Vitality Works appealed to the Supreme Court, but no date has yet been set to hear that application for leave to appeal. Vitality Works sought a stay in proceedings, in order to prevent a damages hearing proceeding at the Tribunal on the basis that it would cause them to needlessly incur costs which would ultimately be found to have been unnecessary. The Tribunal rejected the application for a stay, and Vitality Works appealed to the Supreme Court ([1]-[9]).
Held (dismissing the application for a stay):
(i) The application was framed as a stay but in effect sought an injunction preventing NCAT from proceeding to hear the damages claim ([11]).
(ii) It was not true, as Vitality Works submitted, that Ms Yelda would not suffer prejudice by reason of a stay being granted. Regardless of the outcome of the stay application, Ms Yelda would necessarily be present at the damages hearing with Sydney Water Corporation, and had secured legal representation for that date ([13]).
(iii) The balance of convenience did not favour the making of the stay order, because the effect of Vitality Works incurring costs which might ultimately prove to have been unnecessarily incurred would not produce such an adverse result as to warrant interlocutory intervention at the present stage. No sufficient reason has been shown by the appellant for the Court of Appeal to intervene in the ordinary functioning of the Tribunal ([17]-[18], [20]).
Read the decision on the NSW Caselaw website.
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| AAI Ltd t/as AAMI v Chan [2021] NSWCA 19
25 February 2021 - Gleeson and Leeming JJA and Emmett AJA
In sum: The Court of Appeal allowed the appeal of the insurance company AAI Ltd, and found that the primary judge had misconstrued the statutory test under s 62(1A) of the Motor Accidents Compensation Act 1999 (NSW), in finding that the proper officer had either posed the wrong question or improperly limited the scope of her inquiry. The Court found that the proper officer applied the correct question, and commented on the need to carefully distinguish between error on the face of the record and jurisdictional error.
Facts: The respondent was injured in a motor vehicle accident in 2014, and found by a medical assessor in 2019 to have suffered a 5% whole person impairment by an injury to his cervical spine. However the assessor found there was insufficient evidence to suggest the accident had caused any injury to his right shoulder, a view confirmed by a medical review panel. Upon obtaining two medical expert reports to the contrary, the respondent sought a further medical assessment. The officer who considered the application found that the application did not provide additional information that was “capable of having a material effect on the outcome of the previous assessment,” per s 62(1A) of the Motor Accidents Compensation Act 1999 (NSW). This was because the relevant information and reasoning had already been considered and rejected by the review panel. The respondent sought judicial review of the decision, alleging jurisdictional error and “error on the face of the record”. The primary judge found that the officer had either posed the wrong question or improperly limited the scope of her inquiry, and found in favour of the respondent. The appellant appealed ([4]-[6], [14]).
Held (allowing the appeal):
(i) Section 62(1A) can be described as a gateway provision, the requirement for which turns on the proper officer’s opinion, not on the fact, that the additional relevant information is capable of having a material effect on the outcome of the previous assessment. This opinion does not involve a prediction that additional information would change the outcome of the assessment ([20]-[26], [104]).
(ii) The issue on an application for judicial review is whether the opinion was properly formed according to law, not the correctness of the opinion. Asserting that the opinion is wrong by “error on the face of the record”, as opposed to an error of law, is insufficient. Close attention must be paid to the formulation of grounds, to avoid conflation of jurisdictional error and error of law on the face of the record, and to distinguish between errors of law and errors of fact ([27]-[28], [40]-[47]).
(iii) The proper officer asked herself the correct question, and there was no error in her reasoning. The primary judge failed to identify any error of law on the face of the record. Whether the additional information was capable of having a material effect on the outcome of an assessment was a question of fact ([70], [77]-[78]).
Read the decision on the NSW Caselaw website.
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| Lawson v Minister for Environment & Water (SA) [2021] NSWCA 6
11 February 2021 - Bathurst CK, Basten and McCallum JJA
In sum: The Court of Appeal found in favour of the appellant, who sought compensation as a descendant of the holders of possessory or native title to lands in the Lake Victoria Area, the fee simple of which was once held by South Australia.
Facts: In 1914 an intergovernmental agreement was made concerning the development of the Lake Victoria Area. Clause 55 provided that NSW was to transfer and vest in South Australia an estate in fee simple in the Lake Victoria Area. The agreement was subsequently ratified in NSW when the River Murray Waters Act 1915 (NSW) (RMWA) came into effect. Section 18 of the RMWA provided that the Lake Victoria Area was “hereby vested in South Australia for an estate of fee-simple”. The appellant sought compensation under the Public Works Act 1912 (NSW) (PWA) as a descendent of the holders of possessory or native title to lands in the Lake Victoria Area, resumed under the PWA in 1922. The Minister and NSW argued that s 18 extinguished that title and any subsisting interest in the land. The primary judge found in the respondent’s favour and the appellant appealed. The primary question was whether the land the subject of the appeal was vested in South Australia under s 18 on commencement of the Act ([1]-[7]).
Held (allowing the appeal):
Bathurst CJ:
(i) Sections 14-16 of the Act provide for the Government of South Australia to exercise the powers of the NSW Minister for Public Works under the PWA, but powers, such as appropriation, resumption or purchase of land, are subject to conditions, including the provision of compensation. Section 18 ratified the obligation contained in cl 55 of the Agreement. In conjunction with ss 14-16 and the relevant provisions in the PWA, it provides a mechanism by which South Australia can obtain the fee simple ([19]-[23], [50]-[54]).
(ii) Considered in light of its context and purpose, the proper construction of s 18 provides power to extinguish outstanding interests, but also a mechanism to provide compensation. The respondents made submissions in support of a literal construction of s 18, however as this would deprive persons of vested property rights without compensation, it is evident that this literal construction is inconsistent with the purpose of the RMWA. As such, the appellant’s interests were extinguished only by the resumption, and converted by the PWA into a claim for compensation ([25]-[26]).
Basten JA:
(iii) The proper construction of s 18 does not require departure from the ordinary or literal meaning of the words used. The words “hereby vested” indicate that it is by the Act, and in accordance with the mechanism provided for in the RMWA, that land is vested in South Australia, but the time of the vesting is under the control of the South Australian Government, which could request the resumption of land or exercise the powers of the NSW Minister ([40]-[48)].
Read the decision on the NSW Caselaw website.
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| Western Australian Court of Appeal
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| The Trust Company (Australia) Ltd v Hungry Jack’s Pty Ltd [2021] WASCA 29
4 February 2021 - Buss P, Beech and Vaughn JJA
In sum: The Court of Appeal of Western Australia refused an appeal from an interlocutory decision to make a decision on the papers. The Court found that the circumstances did not give rise to a need for an oral hearing, and that procedural fairness was afforded to the parties.
Facts: The first respondent, Hungry Jack’s, has operated an Outlet over two parcels of land since around 1971. The restaurant and part of the drive-through is located on the “Leased Land”, a lot which the respondent possessed with the consent of the freehold owner, Selden Pty Ltd (Selden). The remainder of the drive-through is on an adjoining lot, which is the subject of an adverse possession claim by the respondents. The respondents pleaded that either Selden or Hungry Jack’s had acquired title to the Disputed Land by Hungry Jack’s adverse possession, or alternatively that the title of the respondent (TrustCo) had been extinguished and rendered unenforceable ([12]-[15], [23]-[24]).
TrustCo erroneously believed it had been granted leave to amend its defence generally, and filed a re-amended substituted defence. The plaintiffs objected to the amendments, which were then disallowed, but TrustCo was granted leave to make a further application to amend its defence and counterclaim. A date was set to determine TrustCo’s application to amend, however, for medical reasons, TrustCo’s solicitor requested an adjournment. The respondents did not oppose the adjournment, but requested the matter be heard on the papers. TrustCo made two submissions to the judge in favour of an oral hearing, however the primary judge found that the decision could be made on the papers ([27]-[31], [36]-[38]).
Held (dismissing the summons seeking leave to appeal):
(i) In determining whether procedural fairness has been afforded, the Court must identify the content of the requirements of procedural fairness. The nature and subject matter of the present case did not establish or suggest any compelling need for an oral hearing, or give rise to any reasonable expectation that there would be an oral hearing ([84], [87]).
(ii) Although the primary judge’s decision to determine the application on the papers was made after the submissions had been completed, and almost two weeks before TrustCo filed its reply submissions (in which the substance of its arguments against a decision on the papers was contained), TrustCo would have been aware, at the time it filed its submissions, that there was a prospect that the judge would decide not to have an oral hearing. No unfairness arose from the course adopted by the judge.
(iii) The Court noted that the instructions of the Practice Directions to make submissions in point or summary form and limit submissions to five pages in the case of interlocutory hearings do not support any reasonable expectation that an interlocutory application will be dealt with by an oral hearing. In fact, a decision on the papers for an interlocutory decision of this type is an ordinary procedure not requiring any special justification, according to the Practice Directions ([88]-[91]).
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| Administrative Appeals Tribunal
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| Dreyfus v Attorney-General (Commonwealth of Australia) [2021] AAT 1249
17 February 2021 - McKerracher J
In sum: The Administrative Appeals Tribunal, considering the political purpose of media statements made by the Attorney-General, found that he had partially waived legal professional privilege in relation to documents containing advice from the Australian Government Solicitor regarding the Medivac legislation.
Facts: The applicant sought review of the respondent’s decision to refuse access under the Freedom of Information Act 1982 (Cth) (FOI Act) to legal advice provided to him about the operation of the 2019 “Medivac legislation”. The respondent refused the request under s 42 of the FOI Act on the grounds that the two advices and six associated documents were subject to legal professional privilege. The issue before the AAT was whether the respondent had waived his privilege in relation these eight documents ([1]-[4]).
The respondent published a media release in February 2019 titled “Labor’s medivac one-way ticket”, criticising the amendment to the Migration Act 1958 (Cth) (Migration Act) for not providing for powers to return people to offshore detention following medical assessment or treatment. The media release summarised advice from the Australian Government Solicitor (AGS) on the operation of the Medivac legislation and the “problems with the return of transferees”. The respondent also gave several media interviews, during which, the applicant contends, the respondent disclosed the substance of the AGS legal advice. The respondent asserted that his references to the AGS advice were in relation to two propositions only: first, that the provisions inserted into the Migration Act by the Medivac legislation did not connect or link with powers already in the Act which permitted the Minister to subsequently remove persons from Australia; secondly, as a result, there was no power in the Migration Act to return persons brought to Australia by the Medivac legislation to offshore detention ([7]-[9], [36]).
Held (partially allowing the FOI request):
(i) The media release and statements took place before Documents 7 and 8 were received. Although there was some overlap in the advice contained in Documents 5 and 8, there could not, as the applicant submitted, have been waiver in relation to a document before it had been received ([45]-[46], [61]).
(ii) Disclosure of the “gist” or conclusion of advice can, but does not necessarily amount to an imputed waiver of the whole advice. The respondent’s disclosure by the two propositions constituted a relatively minor part of the advices as a whole, and can be succinctly characterised as the disclosure of the “gist” or substance of only a small part of the advices over which privilege was claimed ([31], [63]).
(iii) In considering the purpose of the disclosures, the AAT found that it was not, as the respondent asserted, to inform the public of a “drafting error” in the Medivac legislation and to justify an exercise in executive power: see Osland v Secretary, Department of Justice [2008] HCA 37. Rather, the language and context of the media release make clear that the purpose was to attribute that “error” to the Government’s political opponents, and thereby achieve a political advantage ([77], [80]).
(iv) It is well established that deploying the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of confidentiality, and the AAT found that deployment for political advantage is similarly inconsistent. Although it is a natural part of political life that the respondent added certain “flourishes” to his public comments, and the applicant would be well aware of this, “the fact that the respondent did make the most of the situation in a political sense has the consequence that reliance on a privilege that is reserved specifically for the protection of communications with legal advisers cannot be maintained”. The respondent’s statements that he did not intend to waive privilege are insufficient, in the context of the conduct as a whole, to protect against an implied waiver for the relevant parts of the advice disclosing the two propositions. Where a document deals with a single issue, allowing a party to use part of the document and claim privilege as to the remainder would be unfair. Privilege was waived only for parts of Documents 5 and 6 ([23], [83], [87], [92]).
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| Federal Court of Australia
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| Ryan v Commissioner of Police, NSW Police Force (No 2) [2021] FCA 106
16 February 2021 - Abraham J
In sum: The Federal Court refused the appeal of a former NSW police officer who alleged discrimination on the basis of his disability by the NSW Police Force in its decision to revoke his appointment as a Leading Senior Constable. The Court found that there was no disability-based discrimination due to the nature of the Leading Senior Constable role.
Facts: The appellant was a police officer whose status as a Leading Senior Constable (LSC) was revoked on the basis that he became unfit to work following a work-related motor-vehicle accident. This resulted in the reduction of his lifetime pension as a member of the Police Superannuation Fund, which was calculated by reference to his salary as at the date of his discharge. The responsibilities of a LSC include various technical and leadership duties. After being injured in 2009, the applicant was put in an overstrength position, before his LSC status was revoked in 2015, and he was medically discharged later that year. The revocation was due to the need for extensive retraining and accreditation, which could take many years due to the applicant’s health and working capabilities, following significant changes in corporate IT systems, work practices, processes and procedures since he was last in the workplace. Further, it was the opinion of the decision-maker that the applicant would be unable, due to his health, to deal with some of the more stressful aspects of the role ([1], [24]-[31], [44], [46]).
The appellant alleged that the respondent directly discriminated against him based on his disability, as per ss 5(1) and 15 of the Disability Discrimination Act 1992 (Cth) (DDA). In the alternative the appellant contended the terms of the Leading Senior Constable Guidelines applied by the NSWPF in the decision-making process for the revocation of the applicant’s LSC appointment revocation indirectly discriminated against him on the basis of his disability, as per s 6(1) of the DDA. Clause 1.42 of the Guidelines allows for the revocation of LSC status where an officer has been certified as unable to return to their pre-injury duties, and is unable to undertake the inherent requirements of the position ([37], [69]-[70], [126], [136]).
Held (dismissing the appeal):
The Guidelines compelled revocation where the factual preconditions existed
(i) Clause 1.42 is not discretionary; the Guidelines compel the revocation of LSC status where the Commander is satisfied on the facts that the preconditions exist, i.e. that the officer suffered a work-related injury and is certified as unable to return to their pre-injury duties and is unable to undertake the inherent requirements, or has been deployed to other suitable employment ([146], [150]-[152]).
(ii) In the now repealed 2008 iteration of the Guidelines, the LSC salary was expressly protected for the duration of an officer’s time in an overstrength position. The context of the removal of this protection from the present Guidelines, and the insertion of cl 1.42 reflects a changed approach to those with LSC status who suffer work-related injury or illness, and so the applicant was found not to be entitled to retain his LSC salary ([141]-[142], [147]).
The preconditions for revocation in cl 1.42 existed
(iii) In determining whether or not the preconditions of cl 1.42 were satisfied, the decision-maker was entitled to rely on a medical report that was directed to medical retirement rather than revocation of LSC status; taking issue with this discrepancy elevates the form over the substance of the report. The decision-maker possessed the relevant expertise for determining the applicant’s suitability to retain the LSC status, and relied on extensive evidence, which was largely unchallenged, in finding that the applicant was not capable of performing the inherent duties, due to medical advice and his lengthy absence from work ([163], [168], [171]-[172]).
(iv) The applicant submitted that, per cl 1.42, he was entitled to retain his status “during any period of rehabilitation designed to return the officer to their pre injury duties”, and the preconditions for revocation were not satisfied. The applicant’s extended absence from work meant he no longer had the necessary expertise or accreditation, and on that basis alone was unable to undertake the inherent requirements of the LSC position. It would take approximately four to six years to retrain and obtain the necessary qualifications, a period that would be much longer considering the applicant was deemed able to work only two hours a day, three days a week. Such a process of retraining and accreditation would not be rehabilitation, but rather formal retraining. Even with rehabilitation regarding his injuries, there was no evidence that the applicant would be able to return to his pre-injury duties. Other aspects of the LSC position, including leadership roles and crime scene responsibilities, were unable to be overcome by such training ([163], [174], [177]-[180]).
(v) The applicant submitted that the reference in cl 1.42 to being “unable to undertake the inherent requirements” of the LSC position should be understood as permanently unable to do so. However this would elevate the requirement to be higher than that required for medical discharge, which is “likely to be permanent” ([163], [183]).
Direct discrimination – it was not established that the applicant received less favourable treatment than a person without a disability in circumstances not materially different
(vi) In considering whether a comparator would have been treated differently to the applicant for the purposes of determining direct discrimination, the applicant frustrated the purposes of s 5 by stripping the circumstances of any and every feature which presented difficulty to him: see Purvis v New South Wales [2003] HCA 62 at [222]. A suitable comparator would, like the applicant, be unable to perform the inherent requirements of the LSC position, by not possessing the superior technical skills and being unable to fulfil the leadership role. An LSC who could not perform the inherent requirements of the position in the circumstances identified would have the status revoked. That someone else with a disability might have been treated differently to the applicant says nothing about the applicant being unfavourably treated, let alone because of his disability. Consequently, the issue of causation did not arise ([223], [228], [230], [232], [234]).
Indirect discrimination – the requirement that a LSC be able to perform the inherent requirements is reasonable
(vii) The condition in cl 1.42 is properly described as that a police officer be able to be certified to return to pre-injury duties and perform the inherent requirements of the LSC role. It does not fall within s 6(1)(a) of the DD Act, because it adheres to the status or the nature of the appointment, as opposed to being separately imposed outside the nature of the appointment. The officer whose LSC status has been revoked being paid the lesser Senior Constable rate is not the only effect of the revocation: it also allows the LSC position to be filled, enabling leadership for more junior officers, and allows another officer to take on the position and the benefits entailed. The revocation clause does not only incorporate LSCs who are likely to be medically discharged, but also those who are deployed to other suitable employment, and officers who are unable to return to their pre-injury employment, but are suitable for other duties within the NSWPF. As such the revocation clause has a logical and understandable basis. That the Guidelines were amended to introduce the revocation clause after the applicant took up the LSC position does not practically affect the assessment of the reasonableness ([246]-[248], [253], [355], [257]).
Read the decision on the Federal Court of Australia website.
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| | Decisions of Interest Bulletin
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| | AAI Ltd t/as AAMI v Chan [2021] NSWCA 19
ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 (NSW), s 62 - application for further assessment - proper officer not to order further assessment unless additional relevant information capable of having a material effect on outcome of previous assessment - further medical opinions covering similar ground to opinions previously considered - further medical opinions accepted to be additional relevant information - whether judicially reviewable error in proper officer’s decision that further medical opinions not capable of having material effect - need for identification of jurisdictional error or error of law on face of record - primary judge erred in finding reviewable error - appeal allowed and decision of proper officer restored |
| Lawson v Minister for Environment & Water (SA) [2021] NSWCA 6
NATIVE TITLE – extinguishment – compensation – whether extinguishment occurred (i) under legislation vesting land in South Australia or (ii) pursuant to resumption under the Public Works Act 1912 (NSW)
STATUTORY INTERPRETATION – legislative purpose – whether land vested in South Australia for an estate in fee simple under the River Murray Waters Act 1915 (NSW) – right to compensation under the Public Works Act 1912 (NSW) – whether possessory title and any other interests extinguished
STATUTORY INTERPRETATION – approaches – whether literal reading appropriate – whether a particular construction would be contrary to the purpose of an Act |
| Settlers Estate Pty Ltd v Penrith City Council [2021] NSWCA 13
APPEAL – breach of development consent – construction certificate part of development consent – drainage line not constructed in location shown on construction certificate plan – construction of construction certificate plan – whether misconstruction – judicial notice – whether common knowledge – refusal of leave to reopen – whether denial of procedural fairness – whether incorrect factual or legal assumption – leave to appeal refused |
| Theoret v Aces Incorporated [2021] NSWCA 3
STATUTORY INTERPRETATION — Amendment — where appellant’s entitlement to weekly workers compensation payments arose before but was not determined until after 2012 amendments to Workers Compensation Act 1987 (NSW) came into force — whether s 82A of Act as currently in force entitles the appellant to have pre-injury average weekly earnings indexed historically from the time she first became eligible to receive weekly payments in respect of the relevant injury or only from the time the amendments came into force in 2012 |
| Ippin Textiles Pty Ltd v Winau Aust Pty Ltd [2021] NSWCA 9
LAND LAW – Torrens title – indefeasibility of title – fraudster procured execution and registration of mortgages purportedly on behalf of mortgagor – whether mortgages properly construed secure anything against the lands
LAND LAW – Torrens title – indefeasibility of title – effect of acknowledgment of receipt of payment in registered mortgage – acknowledgment prima facie evidence of receipt but must yield to the facts as proved – no advance actually made to mortgagor due to intervention of fraudster
LAND LAW – Torrens title – indefeasibility of title – whether an unregistered document can be incorporated by reference into a registered mortgage – existence of Special Condition in registered mortgage excluding unregistered document where void – unregistered document void due to fraud
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| Australian Executor Trustees (SA) Limited v Kerr [2021] NSWCA 5
EQUITY – trusts and trustees – professional trustee company trustee – where beneficiary “covenantholders” invested money in forestry scheme – where covenantholders entitled to share in proceeds of sale of timber – where scheme land subject to encumbrances securing covenantholders’ interests – where encumbrances trust property – where scheme land and standing timber sold to third party – where trustee acted in breach of trust by releasing encumbrances
CONTRACTS – solicitors – where law firm retained to advise trustee concerning release of encumbrances over scheme land – where advice found to be negligent – whether advice causative of loss to covenantholders occasioned by trustee’s breach of trust
EQUITY – equitable remedies – equitable compensation – causation – whether award of equitable compensation should be limited to the value of the scheme land – where challenge to factual findings relating to Payout counterfactual – whether award of equitable compensation should be reduced by certain adjustments and deductions
EQUITY – equitable remedies – equitable compensation – whether defaulting trustee entitled to apportion loss to law firm – whether South Australian or New South Wales proportionate liability legislation applied – where South Australian law lex loci delicti – whether apportionment provisions procedural in nature or substantive
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| Hutley v Cosco [2021] NSWCA 17
DEFAMATION – defamatory statement made in interview with reporter – defences – justification – substantial truth – conduct forming basis of imputation reactive to poor behaviour of defendant – whether defamatory statement by defendant not substantially true
DEFAMATION – defences – defence of contextual truth – further harm done by plaintiff’s imputations – whether harm done by substantially true plaintiff’s imputations to be weighed against contextual imputations – Defamation Act 2005 (NSW), s 26(b) |
| | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Legal Bulletin should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication.
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