| | | | | | NCAT Legal Bulletin - Issue 3 of 2015 (August 2015)
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| The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
In August, NCAT welcomes Ms Cathy Szczygielski who commenced her new role as Executive Director and Principal Registrar of the NSW Civil and Administrative Tribunal. |
| | | Isbester v Knox City Council [2015] HCA 20
10 June 2015 – Keifel, Bell, Gageler, Keane and Nettle JJ
SUMMARY: The High Court considered an appeal from the Victorian Court of Appeal concerning an application for judicial review of a decision to have the appellant’s dog destroyed, where, the appellant alleged, one of the decision-makers was biased. In unanimously allowing the appeal, the Court considered the principles governing bias.
The (largely factual) test being “whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made” (at [20]), the plurality of the Court (Kiefel, Bell, Keane and Nettle JJ) applied the two-step approach adopted in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337, 345:
- Identify “what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an “interest” in litigation, the nature of that interest must be spelled out.”
- Articulate “the logical connection between that interest and the feared deviation from the course of deciding the case on its merits.” This is, in the case of apprehended bias, essentially “a deviation from the true course of decision-making”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 per Hayne J.
at [21].
This principle applies also to decision-making outside the judicial system, although the content of the test changes the further the decision-making’s context is from “the judicial paradigm”: at [22], applying Ebner and Jia Legeng.
The plurality also said, at [23] to [28] that, in applying the principle, one must also take into account:
a) the nature of the decision and its statutory context;
b) what is involved in making the decision; and
c) the identity of the decision-maker (see, also, [22])
The plurality remarked at [23]:
…The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.
(References omitted)
LINK: Read the decision on the High Court of Australia website. |
| Gnych v Polish Club Limited [2015] HCA 23
17 June 2015– French CJ, Kiefel, Gageler, Keane and Nettle JJ
SUMMARY: In an appeal from the NSW Court of Appeal, the High Court unanimously allowed the appeal and held that a retail lease granted in contravention of s 92(1) of the Liquor Act 2007 (NSW), where a part of licensed premises had been leased without the lessor-licensee obtaining approval from the Independent Liquor and Gaming Authority, was not void and not unenforceable. The Court considered the principles governing illegality of contracts by reason of statute.
As explained in Equuscorp Pty Ltd v Haxton [2012] HCA 7; 246 CLR 498, 513, there are three categories of illegality in contract:
(i) the making of the agreement or the doing of an act essential to its formation is expressly prohibited absolutely or conditionally by the statute;
(ii) the making of the agreement is impliedly prohibited by statute. A particular case of an implied prohibition arises where the agreement is to do an act the doing of which is prohibited by the statute;
(iii) the agreement is not expressly or impliedly prohibited by a statute but is treated by the courts as unenforceable because it is a 'contract associated with or in the furtherance of illegal purposes'.
In Gnych, it was variously argued that the illegality fell within the first or third categories. However, the plurality (French CJ, Kiefel, Keane and Nettle JJ) found (at [36]-[40]) that “little turns on this point because the consequence of illegality is a matter of statutory construction whatever category of illegality is involved”. The plurality cited with approval (at [38]) a statement from Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2007] HCA 38; 232 CLR 1, 29:
…whether a statute which:
"contains a unilateral prohibition on entry into a contract … is void … depends upon the mischief which the statute is designed to prevent, its language, scope and purpose, the consequences for the innocent party, and any other relevant considerations. Ultimately, the question is one of statutory construction."
Their Honours applied this principle to the present dispute and observed the following:- A lease possesses “a duality of character…[being] both an executory contract and an executed demise”: at [41]
- Section 92(1)(d) of the Liquor Act was directed not at the “bundle of rights and duties… between lessor and lessee” but only at the execution of the demise of the lease: at [41] and [43]
- The licensee-lessor is seeking to benefit from its own wrongdoing: at [44]-[45]
- “The breach of s 92(1)(d) on which the Club sought to rely was a breach by the Club which gave rise to an offence that was complete at the moment when the Club allowed the appellants into exclusive possession. The subsequent observance by both parties of the terms of the lease was not prohibited and did not give rise to any continuing offence. This understanding of the limited scope of the prohibition in s 92(1)(d) is confirmed by a consideration of the consequences of a breach of the provision”: at [46]
- “It is not the case that the only way in which legal effect can be given to s 92(1)(d) is by the sterilisation of leases granted in contravention of the prohibition. Section 92(1) imposes a penalty upon breach”: at [47]
- Moreover, provisions of the Liquor Act necessarily contemplate the granting of leases on parts of licensed premises and hence sterilisation of those cannot be the intended effect of contraventions of that Act: see, [51]-[55].
See also the concurring but separate judgment of Gageler J at [60]ff.
LINK: Read the decision on the High Court of Australia website. |
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| | Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121
26 June 2015 – JC Campbell AJA
SUMMARY: Campbell AJA, sitting alone in the Court of Appeal, considered an application for a gross sum costs order in an appeal against a decision of the District Court. In ordering that the applicant pay the respondent’s costs, his Honour stated the following with respect to the inclusion of GST in costs orders at [25]:
If a lawyer’s memorandum of costs and disbursements includes an item for GST, and the client is entitled to an input tax credit for the amount of any GST paid, and if a costs order requires the opposite party to that client in litigation to pay the amount of the client’s costs, the amount payable under the costs order does not include GST: Penson v Titan National Pty Limited [2015] NSWCA 108.
LINK: Read the decision on the NSW Caselaw website. |
| Rafailidis v Camden Council [2015] NSWCA 185
17 February 2015 – McColl and Gleeson JJA and Bergin CJ in Eq
SUMMARY: The Court of Appeal considered an appeal against a finding of contempt in the Land and Environment Court. In allowing the appeal and setting aside orders made by the Court below, McColl JA (with whom Gleeson JA and Bergin CJ in Eq agreed) explained the principles that applied in contempt proceedings, at [45]-[48]:
[45] In contempt proceedings, two questions of interpretation arise: first, what the order or undertaking said to be breached requires on its true construction; and secondly, whether that requirement is sufficiently clear to the person affected by the order to support its enforcement against that person.30
[46] “Plainly injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction.”31 Thus it is “an elementary principle of justice and fairness that no order will be enforced by committal unless it is expressed in clear, certain and unambiguous language”.32 Accordingly, an “injunction should indicate the conduct which is enjoined or commanded to be performed, so that the defendant knows what is expected on its part”.33
[47] A court order may be enforced “if it bears a meaning which the Court is satisfied is one which ought fairly to have been in the contemplation of the person to whom the order was directed … as a possible meaning.”34 However, “a defendant cannot be committed for contempt on the ground that upon one of two possible constructions of an undertaking being given he has broken that undertaking. For the purpose of relief of this character … the undertaking must be clear and the breach must be clear beyond all question.”35
[48] Prima facie, injunctions and court orders should so far as reasonably practicable, be self-standing.36 However, in seeking to determine the meaning of the injunction or order a defendant charged with contempt of court is said to have breached, it is open to the court to have regard to the judgment given when the order was made and to other surrounding circumstances, including the pleadings.37 Because the purpose of a court order is, ordinarily, to give effect to a judgment, the order must conform to the judgment, with only such latitude as the judgment allows. Accordingly, the originating judgment is the primary reference point in construing orders.38
30 Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58 (“Athens”) (at [27]) per Hodgson JA (Tobias JA agreeing); see also Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 (“ACP”) (at 515-516) per Owen J (Windeyer J agreeing).
31 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 (at 259) per Lockhart J (Gummow and French JJ agreeing); Ross v Lane Cove Council [2014] NSWCA 50; (2014) 86 NSWLR 34 (at [29]) per Leeming JA (Meagher and Tobias AJA agreeing).
32 Harris v Harris [2000] EWHC 231 (Fam); [2001] 3 FCR 193 (at [288]) per Munby J; see also Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 (at [55]) per Beazley JA (McColl JA and Lindgren AJA agreeing); Kao, Lee & Yip v Donald Koo Hoi Yan [2009] HKCFA 59; [2009] 5 HKC 36; (2009) 12 HKCFAR 830 (at [23]) per Sir Gerard Brennan NPJ (Bokhary, Chan, Ribeiro PJJ and Nazareth NPJ agreeing).
33 Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 (at [58]) per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
34 ACP (at 492) per Barwick CJ.
35 Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387 (“Redwing”) (at 390) per Jenkins J; applied by Owen J (with whom Windeyer J agreed on this point) in ACP (at 515 – 516).
36 Athens (at [137]) per Santow JA (Tobias JA agreeing).
37 Athens (at [28]) per Hodgson JA (Tobias JA agreeing).
38 Athens (at [129] – [130]; [140](a)) per Santow JA (Tobias JA agreeing).
LINK: Read the decision on the NSW Caselaw website. |
| Pollock v Hicks [2015] NSWCA 122
8 May 2015– Macfarlan, Emmett and Gleeson JJA
SUMMARY: Note that this decision was included in the previous bulletin. It has been included again to highlight what the Court of Appeal held in relation to the Court’s duty to unrepresented litigants at [92]-[94]:
[92] In the present case, Ms Pollock was unrepresented, she had not personally received the amended pleading until the first day of the hearing, she had not filed a defence, and she was unaware of the new case which Mr Hicks sought to advance based on the statutory claims. In my view, fairness required that the primary judge ascertain if Ms Pollock was asking for an adjournment by her responses including that she was unaware of what was required of her by way of asserting her defence. As explained by Allsop P (Macfarlan JA agreeing) in Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 (Jeray) at [6]:
'At the root of procedural fairness is the provision of a fair hearing to a litigant and the basal notion that the litigant has understood the proceedings before him or her and has had an adequate opportunity given to him or her, considering his or her attributes, qualities and deficiencies which render the litigant more or less able to vindicate his or her rights in court.'
[93] It may be accepted, as Allsop P observed in Jeray (at [10]), that the balance of fairness, procedural rigor and wise and practical indulgence in managing litigation by a judge is no simple task. Here the primary judge was dealing with the present proceeding as just one of a list of matters fixed for hearing during the Albury sittings of the District Court. It should also be accepted that the balance can be a fine one involving an evaluative assessment about which minds can differ: Jeray at [11].
[94] However, what occurred in the present case calls for comment. His Honour seems to have taken the view that the difficulties confronting Ms Pollock could be met by requiring Mr Hicks to strictly prove his case, notwithstanding that Ms Pollock did not actually receive the amended pleading until the first day of the hearing and no defence had been filed to the amended pleading. That course however did not address the difficulty that Ms Pollock faced as an unrepresented litigant. She had not had an adequate opportunity, given her lack of notice of the amended pleading, to assess what defences were available to her in relation to the amended pleading. Having regard to the circumstances which unfolded at the beginning of the hearing, in my view, fairness required that the primary judge ascertain if Ms Pollock was asking for an adjournment.
LINK: Read the decision on the NSW Caselaw website. |
| | | Young v Hones (No 4) [2015] NSWSC 792
10 June 2015 – Garling J, Common Law Division
SUMMARY: Garling J considered whether a stay order made for the purposes of an appeal continued to be in effect where the appeal had been finalised but the stay order had not been dealt with in the appeal proceedings. His Honour held at [11] to [18] that it did not. In coming to this result, Garling J applied the Court of Appeal’s dictum in Klewer v Official Trustee in Bankruptcy (No 2) [2010] NSWCA 258. Garling J observed at [14]:
The final determination of proceedings is an expression by the Court of the bringing to an end of the proceedings. The phrase or principle of "finality of litigation", is such that the administration of justice accepts that when a case is finally determined, it is determined, only subject to an appeal, for all time. It would be a curious result if an interlocutory motion or order which remained outstanding after a final determination continued in existence so that, notwithstanding that final determination, the parties would be obliged to continue to litigate all such interlocutory issues in the proceedings to final determination of each of those interlocutory issues. The better view is that, in my opinion, any interlocutory order granted until further order ceases to be operative when the proceedings are finally determined.
LINK: Read the decision on the AustLII website. |
| Ping Yuan v Da Yong Chen [2015] NSWSC 932
14 July 2015 – Fagan J, Common Law Division
SUMMARY: Fagan J considered an urgent application for the extraction of human sperm from an unconscious person near death. In granting the plaintiff (the wife of the now-deceased) permission to extract the sperm from Mr Chen, her husband; order that the sperm not be used until further order; and notify and permit the joinder of the Ministers responsible for the relevant statutes, Fagan J observed:
- Mr Chen’s last words “that he wanted to have one more child with [the plaintiff]” did not amount to consent for the procedure: at [4] and [7]
- There was urgency in the application because, although posthumous extraction was possible, there would be “diminished prospects of viability, in direct relationship to the length of delay after death”: at [7]
- At the time the permission was granted, Mr Chen was alive but had never given appropriate consent during consciousness. As such, neither the Assisted Reproductive Technology Act 2007 (NSW) nor the Human Tissue Act 1983 (NSW) were applicable: at [8]-[10]
- Whilst Part 5 of the Guardianship Act 1987 (NSW) provides for the giving of consent for medical or dental treatment in respect of people who lack the capacity to give consent themselves (at [12]), there are significant indications in ss 32 and 40 of that Act that “treatment” is confined to treatment directed to remedying or alleviating a “condition” suffered by an incapable patient: at [20]. This can be seen as contrary to his Honour’s earlier tentative conclusions that:
- The extraction of semen fell within the meaning of “treatment” within that Act: at [15]-[19]; and
- The extraction of semen constituted “minor treatment” within that Act and hence the “person responsible for the patient”, being the plaintiff, could give consent under ss 33A(4)(b) and 36: at [13]-[14]. - In order for there to be an appropriate contradictor for the further conduct of the proceedings, the papers were to be provided to the Attorney-General and the Director-General of the Department of Health: at [25].
Note also the additional caveats in his Honour's reasons at [16] and [21].
LINK: Read the decision on the NSW Caselaw website. |
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