| | | | | | | NCAT Legal Bulletin Issue 3 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. This issue covers the period March to April 2017.
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| Re Day [No 2] [2017] HCA 14
5 April 2017 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In brief: The High Court, sitting as the Court of Disputed Returns, unanimously held that Robert John Day was a person who had an “indirect pecuniary interest” with the Public Service of the Commonwealth, prior to and at the time of the 2016 federal election, thereby rendering him incapable of being chosen or of sitting as senator under s 44(v) of the Constitution.
In doing so, the Court was tasked with construing the phrase “indirect pecuniary interest” as it appears in s 44(v). Section 44(v) relevantly states that:
“Any person who:
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(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;
shall be incapable of being chosen or of sitting as a senator or a member of the House of
Representatives.”
In construing the phrase “indirect pecuniary interest”, the Court considered the purpose of s 44(v), with the plurality (Kiefel CJ, Bell and Edelman JJ) holding (at [72]) that a narrow interpretation “would be to deny [the provision] its purpose”. The plurality held:
“[72] [T]he construction of s 44(v) does not involve a choice between a narrow or a broad approach which are both available when regard is had to its purpose…. Moreover there is much to be said for the view that the provision has a special status, because it is protective of matters which are fundamental to the Constitution, namely representative and responsible government in a democracy. So understood there can be no warrant for limiting its operation because of the consequences which might follow for a person who is disqualified.
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[75] No narrow view of the operation of s 44(v) can be said to be warranted by its terms, read consistently with its purpose.”
Furthermore, Gageler J, applying the statement of Deane J in Sykes v Clearly (1992) 176 CLR 77 at 121, held (at [97]) that the “blunt and limiting effect”, which s 44(v) had on democratic participation, “tells in favour of an interpretation which gives the disqualification set out in s 44(v) the greatest certainty of operation that is consistent with its language and purpose.”
Read the decision on the High Court of Australia website.
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| David Kendirjian v Lepore & Anor [2017] HCA 13
29 March 2017 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In brief: The High Court unanimously allowed an appeal, in relation to the second respondent, from the New South Wales Court of Appeal, holding that an advocates’ immunity from suit does not extend to negligent advice not to compromise a proceeding which then proceeds to a judicial decision. In doing so, the Court declined to distinguish or reopen its decision in Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572, which mostly recently dealt with advocates’ immunity in the context of settlement of proceedings.
Read the decision on the High Court of Australia website.
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| Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12
29 March 2017 - Kiefel, Bell, Gageler, Nettle, Gordon JJ
In brief: The High Court, by majority, allowed an appeal from the Court of Appeal of Victoria, holding that a clause in an unusual lease obliged the lessee to pay all rates, taxes, assessments and outgoings in respect of the leased land, and not merely imposts levied on the lessee in its capacity as tenant. In doing so, the Court was tasked with construing terms of a commercial lease agreement.
The plurality (Kiefel, Bell and Gordon JJ), following Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at 656, applied (at [16]) the “well-established” principle that the terms of a commercial contract are to be understood objectively, rather than by reference to the subjective intentions of the parties. The plurality continued (footnotes omitted):
“In a practical sense, this requires that the reasonable businessperson be placed in the position of the parties. It is from that perspective that the court considers the circumstances surrounding the contract and the commercial purpose and objects to be achieved by it.”
Accordingly, the plurality held (at [17]) that in approaching the task of construing a clause, the court is entitled to proceed “on the basis that the parties intended to produce a commercial result, one which makes commercial sense”.
Furthermore, Nettle J accepted (at [73]) that the court may also have regard to the deletion of words and clauses, in circumstances where those words and clauses remain legible on the face of the document, when construing ambiguous language in a contract, an approach that Kiefel, Bell and Gordon JJ also adopted at [9].
Read the decision on the High Court of Australia website.
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| | Ralston v Jurisich [2017] NSWCA 63
3 April 2017 - Ward JA, Emmett AJA and McDougal J
In brief: The Court of Appeal, (McDougall J, Ward JA and Emmett AJA agreeing), confirmed at [49] that an appellate court, when conducting an appeal by way of rehearing, is generally entitled to draw its own inferences from undisputed facts and facts found by the trial judge, but giving appropriate weight to the conclusion of the trial judge, following Warren v Coombes (1979) 142 CLR 531 and Fox v Percy (2003) 214 CLR 118. Furthermore, an appellate court has an obligation to give effect to an opinion that differs from an opinion of the court at first instance (also at [49]).
As to the appropriate “appellate restraint” when overturning findings of fact made by a court below, the Court stated (at [53]):
“[E]ven where the primary facts are not controversial, a trial judge may enjoy an advantage, not possessed by an appellate court, of forming some assessment of the character and personality of the parties (assuming, that they give evidence and are cross-examined on it). A trial judge has the further advantage of hearing and assessing the whole of the evidence within the context of the trial. I accept that in some, perhaps many, cases, those advantages provide significant justification for the need for appellate restraint.”
The Court also observed (at [66]) that:
“In some cases, there will have been a raging dispute at trial as to credibility. In others, assessment made by the trial judge of the character and personality of a party will have been of significance in his or her assessment of the question of factual causation. In such cases, the relative advantage of the trial judge and disadvantage of the appellate court are obvious. But where the primary facts are uncontested (or, to the extent they are contested, are resolved in a way which does not remain contentious), and what is left is no more than an assessment of the proper inferences to be drawn from those primary facts, the relative disadvantage of the appellate court will diminish, and in some cases may disappear entirely.”
Ultimately, the Court rejected the appellant’s submission (summarised at [45]) that an appellate court could not overturn the findings of a trial judge unless the trial judge’s findings were “erroneous by reference to incontrovertible facts or uncontested testimony, or glaringly improbable, or contrary to compelling inferences from the facts”, holding (at [65]) that:
“Such a rule would unnecessarily (and in my view unjustifiably) constrain the statutory role of an appellate court performing its duty of rehearing. The approach to be taken must necessarily take account of the way in which the issue was litigated before the trial judge.”
Read the decision on the NSW Caselaw website.
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| BM Sydney Building Materials Pty Ltd v AWT Building Pty Ltd; BM Sydney Building Materials Pty Ltd v AWT Building Group (AUST) Pty Ltd [2017] NSWCA 67
27 March 2017 - McColl JA
In brief: The Court of Appeal considered whether to stay a decision of the District Court, the subject of an appeal. The overriding principle in an application for a stay is the determination of “what the interests of justice require”: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83] (Spigelman CJ, Meagher and Sheller JJA agreeing).
Following Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 at 691-695, the Court summarised (at [15]) the fundamental principles governing whether a stay should be granted or declined as follows:
“(1) Where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted, the Court will normally exercise its discretion in favour of granting a stay;
(2) the onus is upon the applicant to demonstrate a proper basis for a stay;
(3) although the Court will not generally speculate about the appellant’s prospects of success, still some preliminary assessment could be conducted about whether the appellant has an arguable case;
(4) it is a matter of discretion whether the Court grants a stay and, if so, as to the terms which would be fair as part of the granting of a stay;
(5) what is important in considering whether or not a stay ought be granted is the balance of convenience and the competing rights of the parties;
(6) it is not necessary that special or exceptional circumstances should be made out; it is sufficient for the applicant to demonstrate a reason or an appropriate case to warrant the exercise of discretion in its favour.”
Read the decision on the NSW Caselaw website.
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| Federal Court of Australia
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| SZVCP v Cho [2017] FCA 310
28 March 2017 - Markovic
In brief: The Federal Court of Australia set aside a decision of the Deputy District Registrar, on the basis that the Registrar had taken into account an irrelevant consideration in refusing to file documents under r 2.26 of the Federal Court Rules 2011 (Cth). Rule 2.26 provides as follows:
“Refusal to accept document for filing -- abuse of process or frivolous or vexatious documents
Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:
(a) on the face of the document; or
(b) by reference to any documents already filed or submitted for filing with the document.”
The Court held (at [43]) that the Deputy District Registrar’s decision was contrary to s 5(1)(e) and s 5(2)(a) of the Administrative Decisions (Judicial Review) Act 1997 (Cth) (ADJR Act), finding that the decision was an improper exercise of power as the Registrar had taken an irrelevant consideration into account.
Relevantly, the Civil and Administrative Tribunal Rules 2014 (NSW) contain provisions, which grant the Registrar a discretion to accept or reject documents that are not in an approved form (r 20); to accept or reject documents that are not duly completed (r 21); and to accept or reject or documents that are incorrectly lodged (r 22). The Supreme Court of New South Wales has analogous powers of judicial review, to those prescribed by s 5 of the ADJR Act, in relation to the improper exercise of statutory powers under its inherent supervisory jurisdiction (see, for example: Thompson v Randwick Municipal Council (1950) 81 CLR 87 at 105–106 and Warringah Shire Council v Pittwater Provisional Council (1992) 26 NSWLR 491 at 508).
In the present case, the Court ordered that the decision of the Deputy District Registrar be set aside and remitted to a different Registrar to be heard again, holding (at [43]) that:
“In exercising the power under r 2.26 a Registrar must reach his or her state of satisfaction based on the face of the document or by reference to any document already filed or submitted for filing with the document. In making the Third Decision the Deputy District Registrar had regard to the originating application and statement of claim the subject of the Second Decision. In taking those documents into account he did not act conformably with r 2.26 and took into account an irrelevant consideration.”
Read the decision on the Federal Court of Australia website.
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| Dattilo v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 17
2 March 2017 - Kenny, Robertson and Griffiths JJ
In brief: The Full Court of the Federal Court of Australia considered the termination of long term tenancies under s 94(1) of the Residential Tenancies Act 2010 (NSW) (RT Act). Section 94(1) relevantly provides that:
“94 Termination of long term tenancies
(1) The Tribunal may, on application by a landlord, make a termination order for a residential tenancy agreement:
(a) if the tenant has been in continual possession of the same residential premises for a period of 20 years or more, and
(b) if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement has expired, and
(c) if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case.”
At first instance, in Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Dattilo & Anor [2015] FCCA 3260 at [71] (“Dattilo”), Judge Smith, drawing from his decision in Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Rigney & Anor (No.3) [2015] FCCA 3133 at [139]-[140] (“Rigney”), considered the meaning of the phrase “appropriate to do so in the circumstances of the case” as it appeared in s 94(1)(c).
In Rigney, Judge Smith held (at [140]) that s 94(1)(c) essentially involved “balancing of the interests of the landlord and the tenant in the circumstances of each case with some regard to the length of the tenant’s possession of the land”. Furthermore, Judge Smith held (at [139]) that the “circumstances” included the availability of suitable alternative accommodation.
In Datillo, Judge Smith observed (at [71]) that the question of whether some suitable alternative accommodation is reasonably available does not require the availability of “identical or comparable properties”. Furthermore, Judge Smith observed that the question should not be treated as a substitute for the statutory words of 94(1)(c), holding that:
“However, framed in that way, the question captures, in my view, more accurately the balance that is sought to be struck between the interests of the landlord and those of the tenant. That aim has not gone so far as to require the eradication of any difficulty or hardship that might be suffered by a tenant who must leave a property after a long occupation. Nor does it require an order that ensures that the tenant is able to live in near identical circumstances as those to which he or she has become accustomed.”
In the present case, the Full Court held (at [250]) that no error had been disclosed by Judge Smith’s approach in Datillo at [71].
Read the decision on the Federal Court of Australia website.
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| | Dee Why Auto Clinic and anor. v Roads and Maritime Services [2017] NSWSC 377
12 April 2017 - Bellew J
In brief: The Supreme Court of New South Wales considered the duty of a court to give adequate reasons for its decisions. As a starting point, the Court held (at [44]) that a failure to give sufficient reasons will be reviewable for legal error: Inghams Enterprises Pty Limited v Lakovska [2014] NSWCA 194 at [2] per Basten JA, citing Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [130] and Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [28].
Bellew J, citing Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443, observed (at [45]) that the content of the obligation to give reasons may not be the same in every case. As such, there is no mechanical formula that can be applied to determine the extent of the obligation to provide reasons. As a general rule, however, there are three fundamental elements that underpin a statement of reasons (Beale v Government Insurance Office of NSW at 443):
“First, a judge should refer to relevant evidence. … Secondly, a judge should set out any material findings of fact and conclusions or ultimate findings of fact reached. … Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.”
The Court, then, outlined the principles governing the obligation to give reasons, drawing from a decision of McColl JA, in Pollard v RRR Corporation [2009] NSWCA 110 at [56]ff, which had applied by Gleeson JA in Keith v Gal [2013] NSWCA 339 at [113]. The relevant principles, as summarised by Bellew J (at [47]), are extracted below:
“(i) a trial judge’s reasons must, as a minimum, be adequate for the exercise of a facility of appeal (at [56]);
(ii) a superior court considering the decision of an inferior tribunal should not be left to speculate, from collateral observations, as to the basis of a particular finding (at [56]);
(iii) the giving of adequate reasons lies at the heart of the judicial process. A failure to provide sufficient reasons promotes a sense of grievance and denies both the fact, and the appearance, of justice having been done, thus working a miscarriage of justice (at [57]);
(iv) the extent and content of reasons will depend upon the particular case under consideration, and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning leading to a finding, it is essential that he or she expose the reasons for determining an issue which is critical to the contest between the parties (at [58]);
(v) the reasons must do justice to the issues posed by the parties’ respective cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the decision, and the extent to which their arguments have been understood and accepted. It is necessary that the primary judge deal with the issues canvassed, and explain why one case is preferred over another (at [59]);
(vi) a failure to refer to some of the evidence does not necessarily indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence which is critical to an issue in the case, and which is contrary to an assertion of fact made by one party but accepted by the judge, may promote a sense of grievance, and give rise to a feeling of injustice in the mind of the most reasonable litigant (at [61]);
(vii) although it is not necessary to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered, where such evidence is not referred to by the trial judge, an appellate court may infer that the judge has overlooked the evidence, or failed to give consideration to it. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to (at [62]);
(viii) where there is documentary material arguably supporting a party’s case, that material must be considered in the judge's reasons in a satisfactory way (at [63]);
(ix) bald conclusionary statements should be eschewed. In particular, it is not appropriate for a trial judge merely to set out the evidence adduced by one side, then set out the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one over the other (at [64]);
(x) where credit issues are involved it is necessary to explain why the evidence of one witness is preferred to that of another. Bald findings on credit, where there remain substantial factual issues to be dealt with, may not constitute adequate compliance with a judge's duty to provide the parties, and the appellate court, with the basis of his decision (at [65]);
(xi) because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence which competes with evidence which was apparently accepted, and no explanation is given in the judgment for rejecting the evidence, the process of fact finding will have miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that which was not (at [66]).”
Read the decision on the NSW Caselaw website.
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| Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWSC 424
19 April 2017 - Adamson J
In brief: The Supreme Court of New South Wales held that s 154E of the Residential Tenancies Act 2010 (NSW) (RT Act) applies to “no grounds” termination orders made under s 85(3) of the RT Act, by virtue of s 137 of that Act. In doing so, the Court overturned the Appeal Panel’s decision in Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWCATAP 62.
Section 154E of the RT Act is contained in Part 7 of the Act. Sections 85(3), 137 and 154E relevantly provide:
“85 Termination of periodic agreement
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(3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
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137 Application of Part
In the event of any inconsistency between a provision of this Part [Part 7 – Social Housing Tenancy Agreements] and any other provision of this Act or the regulations, this Part prevails to the extent of the inconsistency.
154E Exercise of discretion to make termination order
(1) In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following:
(a) the effect the tenancy has had on neighbouring residents or other persons,
(b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated,
(c) the landlord’s responsibility to its other tenants,
(d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord,
(e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal.
(2) This section does not limit any other matter that may be considered by the Tribunal under this Act.”
As a starting point, the Court observed the statement of the High Court, in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382, on statutory construction, holding (at [24]) that:
“[A] Court is obliged to resolve apparent conflict between, and within, provisions and to attempt to give provisions harmonious operation by discerning which provision, or part of a provision, is to have priority”
Accordingly, the Court identified (at [26]) the principal issue before it was to determine whether the Tribunal’s duty to make a termination order under s 85 was qualified by its obligation to take into account the mandatory relevant considerations imposed by s 154E. The Court held (at [34]) that the word “considering”, as it appears in s 154E, was not limited to determinations of the Tribunal involving an exercise of discretion, such as, for example, the power of the Tribunal to give a termination notice for breach under s 87 of the RT Act. Instead, “considering” includes “any exercise of judgment, whether or not a discretion is to be exercised and whether or not the judgment requires any evaluation as such.” Accordingly, the Court held (at [37]) that:
“[I]n my view, s 154E applies whenever the Tribunal is called upon to make a determination whether or not to terminate a social housing tenancy agreement, including under s 85. It is not confined to cases where the Tribunal is exercising a discretion to make a termination order.”
The Court then considered whether an inconsistency existed between ss 85 and 154E of the RT Act, which would enliven the operation of s 137. The Court proposed (at [40]-[45]) two tests for to determine whether such an inconsistency existed, drawing (at [39]) from High Court authorities on the application of s 109 of the Commonwealth Constitution.
First, the Court stated (at [40]) that a direct inconsistency would arise in circumstances where “one law requires what the other forbids”, as per Telstra Corporation Ltd v Worthing; Attorney-General for the Commonwealth of Australia v Telstra Corporation Ltd (1999) 197 CLR 61; [1999] HCA 12 at [27]. On this analysis, the Court held (at [40]-[43]) there is a direct inconsistency between ss 85 and 154E. Second, the Court stated (at [44]) that an inconsistency would arise in circumstances where a law would “alter, impair or detract from the operation of [another] law”, as per The State of Victoria v The Commonwealth (1937) 58 CLR 618 at 630. On this analysis, the Court held (at [45]) that there is an inconsistency between ss 85 and 154E, on the basis that s 85 would alter, impair and detract from the Tribunal’s obligation to consider the matters in s 154E.
Having found an inconsistency between ss 85 and 154E, the Court held (at [49]) that, when considering whether to terminate a social housing agreement under s 85, the Tribunal is obliged to consider the matters listed in s 154E. Furthermore, the Court outlined the approach of the Tribunal to be taken under its construction of ss 85 and 154E, holding (at [49]) that:
“If, after having had regard to those matters, the Tribunal considers that the social housing agreement ought be terminated, then, as long as the matters referred to in s 85 have been established, then it will proceed to terminate it. If, however, the Tribunal, having regard to the matters in s 154E, does not consider that the social housing agreement ought be terminated, it will decline to do so, notwithstanding that the matters referred to in s 85 have been established by the social housing provider.”
Finally, the Court held that the legislative history of s 154E (at [51]-[53]) and the RT Act generally (at [54]-[57]); extrinsic material (at [58]), such as the Residential Tenancies and Housing Legislation Amendment (Public Housing—Antisocial Behaviour) Act 2015 (NSW), which introduced the provision, and the Second Reading Speech to that Act; and the purpose of s 154E (at [60]) all supported the Court’s foregoing construction of s 154E.
Read the decision on the NSW Caselaw website.
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