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| | | NCAT Legal Bulletin Issue 3 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 April to May 2018.
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| WET044 v The Republic of Nauru [2018] HCA 14
11 April 2018 - Kiefel CJ, Gageler and Keane JJ
In brief: The High Court unanimously dismissed an appeal from the Supreme Court of Nauru, holding that the Refugee Status Review Tribunal had not erred in dealing with the appellant’s submissions regarding the risk of returning to Iran as a failed asylum seeker and Faili Kurd.
The appellant’s claim was at all stages dealt with on the basis that his ethnicity underpinned his claim to systematic persecution in Iran, despite belonging to the majority Shia Muslim faith ([23]). The High Court noted at [24] that:
“The appellant suggests that an inference was nevertheless open that he might not be religiously observant given that he declined to take an oath when giving evidence before the Tribunal and selected the "non-religion" option. This is not to the point. So far as concerns the possible treatment of the appellant in Iran, the question is not whether he is in fact religious but rather whether he is perceived to be part of an ethnic group which is identified with Shia Islam.”
The appellant further argued that he was not referred to the country information upon which the Tribunal relied in finding that only failed asylum seekers with a pre-existing political profile are at risk on returning to Iran. The Court determined that this argument also founders, on the basis that the information not already known to the appellant was nonetheless contained in the reasons for decision the subject of the initial review ([25]-[26]).
Read the decision on the High Court of Australia website.
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| Burns v Corbett Burns v Gaynor Attorney General for New South Wales v Burns Attorney General for New South Wales v Burns New South Wales v Burns [2018] HCA 15
18 April 2018 – Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
In brief: The High Court unanimously dismissed five appeals from the NSW Court of Appeal, with a majority (Kiefel CJ, Bell and Keane JJ, Gageler J agreeing) holding that the Commonwealth Constitution precludes the Parliament of a State from conferring jurisdiction, in respect of a matter between residents of different States (s 75(iv)) (known as “diversity jurisdiction”), on a tribunal, which is not one of the "courts of the States" (s 77). At [15]-[18] the Court reviewed the relevant provisions of Ch III of the Constitution:
“[15] Section 71 of the Constitution provides that the judicial power of the Commonwealth shall be vested in this Court, in such other federal courts as the Parliament creates, and in such other courts as the Parliament invests with federal jurisdiction. …
[16] Section 75 establishes the original jurisdiction of this Court in relation to certain kinds of matters … [including] “between States, or between residents of different States” [: s 75(iv)]. …
[17] Section 76 of the Constitution empowers the Commonwealth Parliament to confer additional original jurisdiction on this Court to determine other kinds of matters … [described as] “matters of specially federal concern”. …
[18] In relation to the matters referred to in ss 75 and 76, s 77 of the Constitution empowers the Commonwealth Parliament to make laws establishing the extent of the jurisdiction of federal courts other than the High Court, and investing State courts with federal jurisdiction.
…”
In approaching the questions raised on appeal, the majority noted that it was common ground that NCAT is not relevantly a court. It was therefore unnecessary to determine whether it or any given tribunal is to be recognised as a “court” for the purposes of Ch III ([39]). Rather, the key issue in contention was whether Ch III denies the possibility that the authority to adjudicate any of the matters listed in ss 75 and 76 may be exercised by an organ of government which is not a court for the purposes of Ch III ([40]).
At [43], the majority observed that Ch III contemplates the exercise of adjudicative power only by the High Court, by other federal courts created by the Commonwealth Parliament, or by State courts invested with such power by the Commonwealth Parliament or to which such power belongs:
“Accordingly, even if the Commonwealth Parliament had made no law under s 77(ii) or (iii), a State law purporting to authorise an agency of the government of a State other than a court to determine, for example, a dispute between residents of different States would be invalid because Ch III left no room for such an adjudication.”
This assertion was unaffected by considerations of history, namely the “existence of State administrative bodies exercising judicial power at the time of Federation” ([63]. On that point, the majority noted (at [63]):
“The decision in the Boilermakers' Case established that the adjudicative authority of the Commonwealth was exercisable only by the courts of the federal Judicature; that being so, it became of vital importance to observe the difference between such courts and administrative tribunals for the purposes of Ch III.”
The majority concluded that the challenged sections of the NCAT Act are “invalid to the extent that they purport to confer jurisdiction upon NCAT in relation to the matters between Mr Burns, and Ms Corbett and Mr Gaynor.” ([64]) Pursuant to s 31 of the Interpretation Act 1987 (NSW), however, these provisions can be read down to avoid that conclusion ([64]).
The minority (Nettle, Gordon and Edelman JJ) would also have dismissed the appeals, not on the basis of a negative implication drawn from Ch III, but because of s 39 of the Judiciary Act 1903 (Cth) and s 109 of the Constitution.
Read the decision on the High Court of Australia website.
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| Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
18 April 2018 – Gageler, Keane, Nettle, Gordon and Edelman JJ
In brief: The High Court held by majority (Gageler, Keane and Nettle JJ) that a “fast track reviewable decision”, under Pt 7AA of the Migration Act 1958 (Cth), is a decision to refuse to grant a protection visa to a fast track applicant that is made in fact, regardless of non- compliance with the code of procedure.
Part 7AA provides for ““a limited form of review” of a “fast track decision” constituted by a refusal to grant a protection visa to an applicant statutorily designated to be a “fast track applicant”.” ([1])
In affirming the Minister’s decision not to grant a protection visa, the Court found that the plaintiff's challenge to that decision must fail unless the ensuing challenge to the Authority's decision can succeed on an independent ground ([69]). The Court explained (at [70]):
“[70] The reason is not that review by the Authority in some way "cures" a defect of jurisdiction in the decision of the Minister or delegate that is under review. The reason is that, once a fast track reviewable decision is affirmed by the Authority, it is the order of the Authority operating by force of s 473CC(2)(a) of the Act to affirm the decision of the Minister or delegate that alone gives the decision of the Minister or delegate legal operation. … For that reason, any defect of jurisdiction in the decision of the Minister or delegate can simply have no bearing on the legal position of the referred applicant.”
Read the decision on the High Court of Australia website.
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| Re Gallagher [2018] HCA 17
9 May 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 in substance 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 the ACT in the Senate for the place for which Ms Katy Gallagher, a British citizen at the time of nomination, was returned; and if so, how that vacancy should be filled.
The majority (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) held that Ms Gallagher was a citizen of a foreign power within the meaning of s 44(i) and therefore ineligible, and that the vacancy should be filled by special count of the ballot papers cast during the relevant poll ([40]).
In Re Canavan (2017) 91 ALJR 1209 the High Court accepted that s 44(i) is subject to an implicit qualification which arises from the “constitutional imperative” underlying it ([11]):
“The constitutional imperative was stated to be "that an Australian citizen not be irremediably prevented by foreign law from participation in representative government”. At least this could be so when the person has taken all steps reasonably required by foreign law to renounce his or her foreign citizenship.”
The majority found (at [27]) that for a foreign law to meet the description in Re Canavan it must “present something of an insurmountable obstacle, such as a requirement with which compliance is not possible.” Accordingly, to be subject to the Re Canavan exception, two
circumstances must be present: first, “that a foreign law operates irremediably to prevent an Australian citizen from participation”; second, “that that person has taken all steps reasonably required by the foreign law which are within his or her power to free himself or herself of the foreign nationality.” ([26]))
It was determined that as British law does not, in either its terms or operation, impose an irremediable impediment to an effective renunciation of citizenship, accordingly it is necessary that a candidate actually have divested himself or herself of his or her status as a foreign citizen before the commencement of the process of being chosen to which s 44(i) applies. ([21]-[22])
Read the decision on the High Court of Australia website.
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| Collins v The Queen [2018] HCA 18
9 May 2018 – Kiefel CJ, Bell, Keane, Gordon and Edelman JJ
In brief: The High Court allowed an appeal with a majority (Kiefel CJ, Bell, Keane and Gordon JJ) holding that the Queensland Court of Appeal had erred in dismissing an appeal, on the basis of the “proviso” under s 668E(1A) of the Criminal Code Act 1899 (Qld), where the appellant was not first given the opportunity to address the Court on whether a substantial miscarriage of justice had occurred.
The proviso states that, on an appeal against conviction, the appellate court may – notwithstanding that it is of the opinion that the point(s) raised by the appeal might be decided in the appellant's favour – dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred ([28]).
In the Court of Appeal, the appellant successfully contended that the trial judge had misdirected the jury by stating that a prior inconsistent statement made by a witness is not evidence of the truth of what the witness said on the earlier occasion, but rather of that person’s credibility ([19]). Nonetheless, the Court of Appeal dismissed the appeal on the basis of the proviso, even though there had been a concession that if there was a misdirection it would have occasioned a substantial miscarriage of justice.
In the High Court, the majority determined (at [37]) that it should not have been concluded that no substantial miscarriage of justice had occurred; stating at [32]:
“Absent any indication to the contrary, the prosecution's concession – that in the event the directions [made to the jury] were wrong, it could not be said that the error did not occasion a substantial miscarriage of justice – relieved the appellant of the need to address this
issue. The Court of Appeal was not bound by the prosecution's concession, but it was obliged to put the appellant on notice that, notwithstanding the concession, dismissal under the proviso remained a distinct possibility, and to give the appellant an opportunity to persuade it against taking that course.”
Accordingly, the majority ordered that the appellant's convictions and sentences be quashed, and a new trial be had ([38]).
Read the decision on the High Court of Australia website.
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| CRI026 v The Republic of Nauru [2018] HCA 19
16 May 2018 – Kiefel CJ, Gageler and Nettle JJ
In brief: The High Court unanimously dismissed an appeal from the Supreme Court of Nauru, holding that there was no error in rejecting the appellant's application to be recognised as a refugee or person to whom Nauru owes complementary protection under the Refugees Convention Act 2012 (Nr) (the Act).
In dismissing the appeal, the Supreme Court found that the Refugee Status Review Tribunal had not erred in applying a reasonable internal relocation test to the appellant's claim for complementary protection, and had taken into account all relevant matters. This finding was upheld by the High Court, noting (at [21]) that:
“… it is not the case that, just because there may be a real risk of exposure to inhuman or degrading treatment or punishment in one place, or even some places, in a country of nationality, an applicant cannot be returned to some other place in that country in which there is not such a risk and to which it would be reasonable for him or her to relocate.”
On this point, the Court cited the observations of Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at 27 at [24]; [2007] HCA 40 in relation to a claim for refugee protection and continued (at [39]):
“What is 'reasonable', in the sense of 'practicable', must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality."
Accordingly, depending on the issues and circumstances identified by the applicant, the decision maker not only will need reliable information as to the safety and suitability of the place of relocation but also will need to pay careful regard to the applicant's personal and family circumstances. It is only when and if the decision maker concludes on that basis that internal relocation would be reasonable that the claim for complementary protection may be rejected on that basis.”
Read the decision on the High Court of Australia website.
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| DWN027 v The Republic of Nauru [2018] HCA 20
16 May 2018 – Kiefel CJ, Gageler and Nettle JJ
In brief: The High Court unanimously dismissed an appeal from the Supreme Court of Nauru, holding that there was no error in rejecting the appellant's application to be recognised as a refugee or person to whom Nauru owes complementary protection under the Refugees Convention Act 2012 (Nr) (the Act).
At first instance, the Refugee Status Review Tribunal found that, on balance, the appellant would face a real threat of harm were he to return to his home in Pakistan, but that he could “practically, safely and legally relocate to another area within Pakistan where he would not be exposed to a risk of being persecuted or of other serious harm” ([7]). On that basis, the Tribunal concluded that the appellant was not a refugee, and not entitled to complementary protection ([7]).
The High Court upheld the finding of the Supreme Court that the Tribunal had neither erred in applying a reasonable internal relocation test, nor failed to take into account the interests of the appellant's child. In doing so, the Court noted at [21]:“In matters like this, it is important to bear in mind Gleeson CJ's admonishment in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [(2003) 216 CLR 473 at 478-479 [1]; [2003] HCA 71] that the system of judicial review of administrative action which operates in matters of this kind means that by the time a case reaches this Court it may be at the fifth level of decision making (or, as in this case, the fourth) after the appellant has failed at each level below. That being so, there is a real danger of an appellant seeking to put his or her case before this Court in a way that it was not put below and of the appellant criticising the reasoning of the decision maker in a manner that overlooks the forensic context in which the reasoning was expressed. For that reason, as Gleeson CJ emphasised, the position which this Court has taken, and to which it adheres, is that, upon judicial review, the decision of the decision maker must be considered in light of the basis on which the application was put before the decision maker and not upon some entirely different basis that may only occur to the appellant's lawyers at this later stage of the process.”
Read the decision on the High Court of Australia website. |
| EMP144 v The Republic of Nauru [2018] HCA 21
16 May 2018 – Kiefel CJ, Gageler and Nettle JJ
In brief: The High Court unanimously dismissed an appeal from the Supreme Court of Nauru, holding that there was no error in rejecting the appellant's application to be recognised as a refugee or person to whom Nauru owes complementary protection under the Refugees Convention Act 2012 (Nr) (the Act).
As in the cases of CRI026 v The Republic of Nauru and DWN027 v The Republic of Nauru (summarised above), the Refugee Status Review Tribunal at first instance accepted that the appellant had suffered serious harm amounting to persecution at the hands of particular
local political groups, and that such harm might re-occur if he were to return to the area. Further, applying the reasonable internal relocation test, the Tribunal found that “the appellant could reasonably be expected to establish himself elsewhere in Nepal and live a normal life without undue hardship. Consequently, he did not qualify as a refugee or for complementary protection.” ([12])
In dismissing the appeal, the Court highlighted the Tribunal’s efforts to draw the appellant’s attention to the significance of the relocation issue, and in granting a “natural justice break” to enable the appellant's legal representative to consult with the appellant as to how the appellant wished to respond to certain matters ([32]-[35]).
Read the decision on the High Court of Australia website.
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| Court of Appeal of New South Wales
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| Warner Bros Feature Productions Pty Ltd v Kennedy Miller Mitchell Films Pty Ltd [2018] NSWCA 8124 April 2018 - Bathurst CJ, Beazley P, Emmett AJACatchwords: CONTRACTS – Express terms – Incorporation of terms – Incorporation by reference – agreement stated that balance of terms would be “WB standard for ‘A’ list directors and producers” subject to “good faith negotiations” – whether terms were incorporated before good faith negotiations had taken place – whether terms which were “standard” had been proved to exist
COMMERCIAL ARBITRATION – Arbitration agreement – Form of arbitration agreement –
Arbitration clause - agreement stated that balance of terms would be “WB standard for ‘A’ list directors and producers” – whether an arbitration clause was “WB standard for ‘A’ list directors and producers” |
| Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 8224 April 2018 - Beazley ACJ, McColl, Meagher JA
Catchwords: TORTS – negligence – work injury – plaintiff/first respondent employed by second respondent labour hire company – first respondent’s services hired out to appellant – breach of duty of care – injury sustained due to nature and conditions of employment – whether primary judge erred in drawing certain inferences regarding work undertaken by first respondent – whether primary judge erred in finding that first respondent would not have received adequate rest breaks – whether primary judge erred in finding that risk of harm was not insignificant – whether primary judge erred in finding that appellant and second respondent breached their respective duties of care to first respondent
TORTS – negligence – causation – whether primary judge erred in finding that first respondent sustained internal disc disruption which progressed to a disc protrusion where expert evidence was conflicting – whether primary judge erred in finding that appellant caused first respondent’s internal disc disruption
TORTS – negligence – contributory negligence – whether primary judge erred in finding that first respondent was not contributorily negligent |
| AD v Commissioner of the Australian Federal Police [2018] NSWCA 8930 April 2018 - Beazley P, Meagher JA, Gleeson JA
Catchwords: CRIME – proceeds of crime – whether exclusion order can be made in respect of property restrained under the Proceeds of Crime Act 2002 (Cth) that has already been forfeited – whether appellant should be allowed to argue that restraining orders against appellant’s property were obtained by fraud
STATUTORY INTERPRETATION – meaning of “conviction day” under Proceeds of Crime Act 2002 (Cth)
CONSTITUTIONAL LAW – whether Proceeds of Crime Act 2002 (Cth), ss 18, 26(4), 92, 95 and 338(a)(ii), (a)(iv) and (g) of the definition of “serious offence” are constitutionally valid |
| Racing NSW v Lewin [2018] NSWCA 9303 May 2018 - Bathurst CJ, Basten JA, Macfarlan JA
Catchwords: ADMINISTRATIVE LAW - regulations - validity of delegated legislation - whether Racing Appeals Tribunal Regulation 2015 (NSW), cl 5 arbitrary or capricious
CIVIL PROCEDURE - parties - joinder - whether necessary to join State of New South Wales (or other relevant polity) where challenge to validity of regulations - State of New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307 not followed
JURISDICTION - Racing Appeals Tribunal - decision by Racing NSW not to renew bookmaker licence – jurisdiction to hear appeal
WORDS AND PHRASES - “regulations may make provision for or with respect to appeals”- Racing Appeals Tribunal Act 1983 (NSW), s 18
WORDS AND PHRASES - “person … may, in accordance with the regulations, appeal” - Racing Appeals Tribunal Act 1983 (NSW), s 15 - “revoke the licence of any person under the rules” - Racing Appeals Tribunal Regulation 2015 (NSW), cl 5 |
| Weir Services Australia Pty Ltd v AXA Corporate Solutions Assurance [2018] NSWCA 10016 May 2018 - Meagher JA, White JA, Barrett AJA
Catchwords: INSURANCE – legal liability insurance – scope of cover – scope of exclusions – appellant contracted to refurbish semi-autogenous grinding mill – refurbished mill failed after a short period of normal operation when a circumferential weld disintegrated – mill owner brought arbitration proceedings against appellant on causes of action in contract and for misleading or deceptive conduct – the parties to the arbitration entered into a “cap and collar” agreement the operation of which depended on the outcome of the arbitration – arbitration resulted in a finding of no liability of appellant – appellant nevertheless liable to pay contracted “collar” amount and for its own costs – whether these liabilities are within the insurance cover under a broadform liability policy – whether appellant legally liable to make “collar” payment by way of “compensation” for “property damage” suffered by mill owner – meaning of “occurrence” in liability policy – distinction between “occurrence” and damage – whether disintegration of the weld was an “occurrence” – whether cyclic loading in normal operation of the mill was an “occurrence” – whether faulty work by appellant was an “occurrence” – policy exclusion for professional services – whether faulty welding work within scope of professional services – whether making of actionable representations within scope of professional services – policy exclusion for product defect – whether applicable
WORDS AND PHRASES – “compensation” – “occurrence” – “continuous or repeated exposure to substantially the same general conditions” – “professional advice or service” – “product” |
| Elzahed v State of New South Wales [2018] NSWCA 10318 May 2018 - Beazley P, Ward JA, Payne JA
Catchwords: This judgment determined that when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on the party who contends on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they were fundamental and obvious. The alternative approach would permit a party to run one case before the primary judge and different cases on appeal.
CIVIL PROCEDURE – whether party can give evidence while face covered by veil – discretionary decision of trial judge to refuse to allow witness to give evidence with face covered |
| Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd [2018] NSWCA 11428 May 2018 - Bathurst CJ, Beazley P, Payne JA
Catchwords: EQUITY – Equitable remedies – Relief against forfeiture – termination by vendor of agreement entered into pursuant to an option for sale of poker machine permits – whether purchaser had a subsisting equitable interest in permits arising apart from sale agreement – whether “unconscientious” for vendor to terminate agreement on grounds of surprise or mistake |
| Benson v Rational Entertainment Enterprises Ltd [2018] NSWCA 111
Judgment of: 25 May 2018 - Beazley P, Leeming JA, Emmett AJACatchwords: CONTRACT – parties – construction of terms – online account to facilitate playing poker – former operators of website were made subject of restraining orders and forfeiture proceedings in United States – balance of player’s account “frozen” – settlement of United States litigation involving new operators acquiring assets and promising to pay account balances of non U.S. players – plaintiff enters into contract with company not party to settlement – whether implied term that company pay existing balance – whether other respondents parties to that contract – appeal allowed against fourth respondent only
COURTS – precedent – status of High Court decision with no ratio decidendi – status of principle enunciated by Gaudron J in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; [1988] HCA 44
UNJUST ENRICHMENT – settlement involving promise to make payments to non U.S. players – plaintiff not party to settlement – whether plaintiff could sue in unjust enrichment for breach of obligation to pay – precedential authority of reasons of Gaudron J in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; [1988] HCA 44
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