| | | | | NCAT Legal Bulletin Issue 3 of 2020
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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.
The latest issue feature case summaries of recent decisions from the NSW Court of Appeal, NSW Supreme Court and the Western Australia Court of Appeal, including: - Gaynor v Attorney General of New South Wales [2020] NSWCA 48 - in which the NSW Court of Appeal held that the provisions of Part 3A of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) are not constitutionally invalid, and in particular, do not impermissibly discriminate against residents of different states within the meaning of s117 of the Constitution.
- Wallace v NSW Land and Housing Corporation [2020] NSWSC 142 - an appeal from NCAT, in which Harrison AsJ found that the Appeal Panel and Tribunal at first instance erred in their construction and application of s 154E of the Residential Tenancies Act 2010 (NSW) (containing mandatory considerations for termination of a social housing tenancy agreement by NCAT).
- Edward Lees Imports Pty Ltd v Department of Finance Services and Innovation t/as Commissioner of Fair Trading [2020] NSWSC 256 - an appeal from NCAT, in which Adamson J held that the Appeal Panel and Tribunal below erred in finding that NCAT is not bound by s 41 of the Motor Dealers and Repairers Act 2013 (NSW) (MDR Act), and in denying the appellant procedural fairness/finding that the appellant was not denied procedural fairness. In sum, NCAT is not permitted to make orders effecting disciplinary action under the MDR Act based on particulars not previously given to a licensee in a "show cause notice" under s 41.
- Holdsworth v Commissioner of Police, New South Wales Police Force [2020] NSWSC 228 - in which Beech-Jones J held that, despite some textual indications to the contrary, a firearms prohibition act made under the Firearms and Dangerous Weapons Act 1973 (NSW) remains in force under the current Firearms Act 1996 (NSW), by operation of the transitional provisions in the Firearms Act 1996 (NSW) and the intervening Firearms Act 1989 (NSW).
- Florida Kitchens Pty Ltd v Number One Cutting (T/S Number One Marble and Granite) (No 2) [2020] NSWSC 216 - in which N Adams J made a third party costs order, to be paid on an indemnity basis, against the director and sole shareholder of a party to proceedings which were initially commenced in NCAT, and in relation to which a "pattern of unsuccessful appeals" were "unreasonably" pursued with no prospect of success.
- Paraiso v CBS Built Pty Ltd [2020] NSWSC 190 - an appeal from NCAT, in which Fagan J held that the Tribunal below erred (and the Appeal Panel erred in not so finding) by rigorously cross-examining the appellant's expert witness and not allowing the appellant's counsel to cross-examine the respondent's expert witness. Fagan J found that this amounted to a denial of procedural fairness and a display of actual bias; misconstruing a common provision in home building contracts regarding what is required to effect a contractual variation to the work required; calculating the amount of quantum meruit payable in respect of purported (but unenforceable) variations without reference to the provisions of the contract as an "upper limit" on the claim (as the High Court said was required in Mann v Paterson Constructions Pty Ltd [2019] HCA 32).
- JKC Australia LNG PTY LTD v CH2M Hill Companies Ltd [2020] WASCA 38 - in which the WA Court of Appeal declined to grant an adjournment sought on the basis that, in the context of the COVID-19 pandemic, a phone hearing would be "manifestly inadequate", a video link hearing would be "inadequate", and the applicant was entitled to a "normal hearing".
In addition, it contains links to recent bulletins published separately by the Court of Appeal, providing summaries of the following cases:- Kay v Playup Australia Pty Ltd [2020] NSWCA 33
- Attorney General for New South Wales v Melco Resorts & Entertainment Limited [2020] NSWCA 40
- Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53
- Gaynor v Attorney General of New South Wales [2020] NSWCA 48
- Universal 1919 Pty Ltd v 122 Pitt Street Pty Ltd [2020] NSWCA 50
- Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba (No 2) [2020] FCAFC 39
- FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29
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| Gaynor v Attorney General of New South Wales [2020] NSWCA 48
26 March 2020 - Bell P, Basten JA, Leeming JA
In sum: The Court of Appeal refused an application for leave to appeal brought by Mr Bernard Gaynor (Mr Gaynor) involving a constitutional challenge to Part 3A of the Civil and
Administrative Tribunal Act 2013 (NSW) (NCAT Act). In doing so, the Court of Appeal held that the provisions of that part do not purport to confer federal diversity jurisdiction on NCAT, and do not subject residents of different states to disability or discrimination within the meaning of s 117 of the Constitution.
Facts: Mr Gaynor is a conservative blogger residing in Queensland. Over the years, he has been involved in a series of disputes with Mr Burns, a self-described gay Australian anti-discrimination campaigner who resides in NSW ([1]).
Since 2014, Mr Burns has made a large number of complaints to the President of the NSW Anti-Discrimination Board (the Board) in relation to statements made by Mr Gaynor. Twenty-three of these were referred by the President of the Board to NCAT, pursuant to s 93C of the Anti-Discrimination Act 1977 (NSW) (AD Act) ([2]).
The High Court has previously held, in Burns v Corbett [2018] HCA 15; (2018) 353 ALR 386, that ss 28(2)(a) and (c), 29(1) and 32 of the NCAT Act, which determine NCAT’s general and appellate jurisdiction, are invalid to the extent that they purport to confer jurisdiction where the parties to a dispute are “residents of different States” within the meaning of s 75(iv) of the Constitution ([3]).
Following the Court of Appeal’s decision in Burns v Corbett (2017) 96 NSWLR 247; [2017] NSWCA 3, but prior to the High Court appeal, the NCAT Act was amended to introduce Part 3A. The new provisions provide a mechanism for matters to be heard by an “authorised court”, instead of NCAT, if the court is satisfied that the determination of the matter by NCAT would involve the exercise of federal diversity jurisdiction ([5]).
In April 2018, Mr Burns sought leave pursuant to s 34B (a key provision in Part 3A) of the NCAT Act to bring proceedings in the Local Court relating to some of his complaints that had been referred to NCAT. The Summonses stated that leave to commence was sought “because the Application involved the exercise of the federal diversity jurisdiction and the Tribunal [NCAT] does not have jurisdiction” ([8]).
In July 2018, Mr Gaynor commenced proceedings in the Supreme Court seeking an order that Mr Burns’ proceedings were void and of no effect. Amongst other things, Mr Gaynor argued that Part 3A of the NCAT Act is constitutionally invalid. The primary judge dismissed Mr Gaynor’s challenge, and Mr Gaynor sought to appeal that decision ([9]).
Held (refusing leave to appeal):
(i) Leave was not granted, in sum, because the Court of Appeal was not persuaded that there was any error in the primary judge’s reasoning in respect of the matters argued before him, and because the new arguments raised on appeal rose no higher than the tentative assertion that Part 3A of the NCAT Act “arguably” in some way infringed s 117 of the Constitution: (Bell P at [29]-[30], [85], Basten JA at [86], [123], Leeming JA at [146]).
(ii) In particular, Basten JA highlighted the undesirability (as demonstrated in Attorney General (NSW) v Gatsby [2018] NSWCA 254; (2018) 361 ALR 570 cf Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30) of determining constitutional issues of great public importance which are inadequately presented for consideration. As an aside, Basten JA acknowledged the Victorian Court of Appeal’s rejection of his Honour’s reasons in Gatsby, noting that, should the same issue arise again in a “properly presented case” in the NSW Court of Appeal, the Victorian Court of Appeal’s reasoning “might well be found to be persuasive, and would then be followed” ([122]-[123]).
Whether s 34B(1) of the NCAT Act is constitutionally invalid – NO
(iii) Mr Gaynor argued that s 34B(1) of the NCAT Act is constitutionally invalid because it confers diversity jurisdiction on NCAT, or at least impliedly recognises that NCAT continues to be vested with such jurisdiction (such that a “person with standing” retains the option of proceeding with a claim in NCAT instead of an authorised court). This submission was rejected (Bell P at [42]).
(iv) Section 34B(1) confers a right on a “person with standing” to make an application to an authorised court – it does not confer or purport to confer jurisdiction on NCAT or an authorised court, nor does it require or empower NCAT to do anything at all (Bell P at [43], [52]).
(v) Axiomatically, diversity jurisdiction and federal jurisdiction cannot be conferred either on a State court or tribunal by State legislation (Bell P at [44], Basten JA at [88]).
(vi) The jurisdiction conferred by s 34C(3) is not federal jurisdiction, but rather, subject matter jurisdiction – being the authority to decide matters otherwise assigned to NCAT by the NCAT Act, or by other enabling legislation such as the AD Act (Bell P at [46]).
(vii) Part 3A of the NCAT Act was introduced precisely because of the recognition, after the Court of Appeal’s decision in Burns v Corbett, that diversity jurisdiction could not be exercised by NCAT. Nothing turns on the fact that it was enacted in response to the Court of Appeal’s decision, and not the subsequent High Court appeal, in which different constitutional reasoning was employed (Bell P at [47], [49], Basten JA at [92]).
(viii) A reading of Part 3A which promotes its purpose or object should be preferred to one which would not: Interpretation Act 1987 (NSW), s 33 (Basten JA at [92]).
(ix) The reference in s 34C(3) to an authorised court being able to exercise “all the jurisdiction and functions” that NCAT would have “if it could exercise federal jurisdiction” is a powerful textual indication that the legislature recognised that NCAT could not exercise federal jurisdiction (Bell P at [50]).
(x) Section 31 of the Interpretation Act envisages that a provision may validly apply to a particular person, subject matter or circumstance, but not to others, such that it can be construed as not exceeding the constitutional powers of the State Parliament (Bell P at [53], Basten JA at [89]).
(xi) The powers conferred on NCAT by ss 105 and 108 of the AD Act do not authorise NCAT to do anything in a matter involving federal jurisdiction, and may only be exercised within constitutional limits (Bell P at [52], [54]).
Whether the Local Court lacked jurisdiction to hear Mr Burns’ application – NO
(xii) Mr Gaynor also submitted that the Local Court did not have jurisdiction to hear Mr Burns’s application, because s 34 of the Local Court Act 2007 (NSW) limits the Local Court’s exercise of federal jurisdiction to “matters that arise in whole or [in] material part” within NSW (Bell P at [59]-[60]).
(xiii) In order to entertain an argument of this kind, the Court would have needed to consider each of the elements of the cause of action creation by s 49ZT(1) of the AD Act (Bell P at [66]).
(xiv) The evidence did not disclose precisely what Mr Burns’ complaints were or in what way they were connected with NSW (Bell P at [63], [68]).
(xv) The publication of material on the internet has been held to be a “public act”, and has been treated in some cases as occurring wherever the allegedly discriminatory material has been accessed and read (Bell P at [67]).
(xvi) As the primary judge observed, Mr Gaynor could still bring a jurisdictional challenge on the basis that there was an insufficient nexus between Mr Burns’s complaints and NSW such that Mr Gaynor’s conduct would not amount to an offence under the AD Act (Bell P at [64], [69]).
(xvii) In these circumstances, no injustice was occasioned to Mr Gaynor that would attract leave to appeal, nor was there any error of principle in the primary judge’s decision to withhold relief in respect of the territorial argument (Bell P at [69]).
Whether Part 3A of the NCAT Act subjected Mr Gaynor to discrimination and disability contrary to s 117 of the Constitution
(xviii) Part 3A of the NCAT Act did not subject Mr Gaynor to discrimination and disability, within the meaning of s 117 of the Constitution. The very source of the need to proceed differently in relation to a matter between residents of different states is the Constitution itself (Bell P at [74]).
(xix) This argument had no regard to ss 34C(3) and (4) of the NCAT Act which are directed to aligning the procedures to be followed in an authorised court in cases involving federal jurisdiction with those which would apply in NCAT (Bell P at [75]).
(xx) The relevant comparison is not between the procedures to which Mr Gaynor was subject in NSW and the applicable procedures had a complaint been made against him in Queensland (Bell P at [76]).
(xxi) Furthermore, even where s 117 is found to have been infringed in a particular case, the result is not that the relevant law is rendered invalid, but rather, that an immunity is conferred on the individual(s) who would otherwise be subjected to disability or discrimination: Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463 at 495; [1994] HCA 18 (Bell P at [77]).
Read the decision on the NSW Caselaw website.
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In sum: The Supreme Court allowed an appeal from an Appeal Panel in NCAT, finding that both the Appeal Panel and the Tribunal below misapplied the “mandatory considerations” for terminating a social housing tenancy agreement in s 154E(1) of the Residential Tenancies Act 2010 (NSW) (the RT Act). However, Harrison AsJ held that the Tribunal and Appeal Panel did not err in their assessment of whether a Neighbourhood Impact Statement admitted at first instance met the requirements of s 154F(2) of the RT Act.
The Appeal Panel’s decision is available here, but the first instance of the Tribunal is unpublished.
Facts: Vicki Wallace (the tenant) and the NSW Land and Housing Corporation (Housing NSW) were parties to a social housing tenancy agreement ([4]).
In 2017, the tenant began to run a drug supply operation from the premises, selling cannabis to as many as 100 customers per day. The tenant’s operation came to the attention of police and, after a criminal search warrant was carried out at the premises, she was arrested and charged with six counts of supply of a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW) ([7], [9]).
The tenant pleaded guilty and was sentenced to full-time custody for a period of 22 months with a non-parole period of 11 months. On appeal, the judge in the District Court accepted that the sentence was excessive and indicated an intention to make an Intensive Correction Order. It is a requirement for making such an order that the subject have a permanent residence which can be assessed by Community Corrections ([10]-[12]).
In the meantime, Housing NSW had filed an application in NCAT seeking termination of the tenancy due to the tenant’s unlawful use of the premises, pursuant to s 91 of the RT Act. In June 2019, the Tribunal ordered that the tenancy be terminated ([13]).
The tenant lodged an internal appeal, which the Appeal Panel dismissed in September 2019 ([14]-[16]).
Held (granting leave to appeal, allowing the appeal, and remitting the proceedings to be determined according to law):
(i) Harrison AsJ granted leave to appeal on the basis that the grounds of appeal – relating to the proper interpretation of ss 154E and 154F of the RT Act – raised matters of principle and were of general public importance ([44]).
Key provisions relating to termination of social housing tenancy agreements
(ii) The Tribunal must make a termination order under a social housing tenancy agreement where an application has been made by the landlord under s 91 and the Tribunal is satisfied of the matters set out in s 91(1)(a) (i.e. that the premises have been used for the manufacture, sale, cultivation or supply of a prohibited drug): s 154D(1)(b) ([69]).
(iii) However, this requirement does not apply where the Tribunal is satisfied that a termination order would be likely to result in “undue hardship” being suffered by a person with a disability who is occupying the premises: s 154D(3)(b) ([70]).
(iv) In considering whether to make a termination order, the Tribunal must have regard to five factors, including “the effect that the tenancy has had on neighbouring residents or other persons”: s 154E(1)(a) ([71]).
(v) In considering whether to make a termination order, the Tribunal is to have regard to any Neighbourhood Impact Statement (NIS) submitted by the tenant’s landlord: s 154F(1). An NIS is “a summary of statements made by neighbouring residents or other persons relevant to the requirement for the Tribunal to have regard to the effect the tenancy has had on them” and should not identify the neighbouring residents or other persons: s 154F(2) ([99]).
(vi) In this case, it was not disputed that the tenant had used the premises to supply a prohibited drug, or that the tenant had a disability. The prevailing dispute between the parties related to the operation of ss 154E and 154F ([69]-[70]).
Whether the Appeal Panel and Tribunal below erred in their application of s 154E(1) of the RT Act – YES
(i) Reading the Tribunal’s reasons as a whole, and not with an “eye finely tuned for error”, it was clear that the Tribunal had attached a precondition to the tenant’s evidence for the purposes of s 154E(1)(a) (i.e. the effect her tenancy had on neighbouring residents) ([77], [79]).
(ii) The Primary Member, when addressing s 154E(1)(a), discounted the value of witness statements adduced by the tenant about the positive effects her tenancy had on them because they were “more character references than dealing with the issue of the effect of the illegal activity” ([79]).
(iii) However, s 154E(1)(a) does not refer to illegal activity. Rather, it requires the Tribunal to have regard to the effect that the tenancy, not the illegal activity, has had on neighbouring residents or other persons. The Primary Member’s interpretation narrowed the operation of the section by devaluing the witness statements for an insufficiency which was not founded in the statute. By doing so, the Primary Member exercised his discretion based on a wrong understanding of the statutory test, and did not properly engage in a balancing exercise of relevant factors – both errors of law ([80]).
(iv) For its part, the Appeal Panel accepted that the Tribunal must have regard to the effect the tenancy has had on neighbouring residents, which may include any beneficial effects. However, the Appeal Panel found that Primary Member did not limit himself to only negative implications, and merely “preferred” Housing NSW’s evidence when “evaluating the overall effect” of the tenancy ([81]-[82]).
(v) Harrison AsJ disagreed with this reasoning, noting that the Appeal Panel appeared to be attempting to explain what the Primary Member should have said in order to comply with the statute. It was not open to the Appeal Panel to explain and justify the Primary Member’s incorrect interpretation of s 154E(1)(a). Upholding this ground, Harrison AsJ found that both the Tribunal’s and Appeal Panel’s decisions should be quashed ([80], [82]).
Whether the Appeal Panel and Tribunal below erred in their application of s 154F(2) of the RT Act – NO
(vi) Harrison AsJ also considered whether the NIS relied on by Housing NSW under s 154F met the requirements of that section ([99], [115]).
(vii) The tenant submitted that the NIS was “not a summary of complaints made by persons regarding the [tenant’s] specific actions and the effect of her tenancy on them”, but rather, a general statement regarding drug dealing and antisocial behaviour in the building and local area. Accordingly, it was submitted that the document either should not have been admitted, or if it was, should have been “weighed properly” ([89], [109]).
(viii) Harrison AsJ agreed with the tenant’s submission that certain references in the NIS to “drug paraphernalia in gardens, drains and gutters”, as well as “drug dealing… throughout the neighbourhood”, were unrelated to the tenant’s criminal behaviour. However, there was no indication that the Primary Member interpreted the impact described in those statements as being attributable to the tenant ([103], [110]).
(ix) Rather, the Primary Member treated the NIS as showing that the tenant’s activities contributed to, amongst other relevant effects, “unauthorised persons in the building”, “noise from visitors trying to access [the] building”, “drug supply activity by tenants”, and “fear of accessing [their] own dwellings due to unauthorised access and activity by unknown others” ([111]).
(x) In Harrison AsJ’s view, the NIS met the requirements under s 154F(2) being “a summary of statements by neighbouring residents or other persons relevant to the requirement for the Tribunal to have regard to the effect the tenancy has had on them” ([115]).
(xi) As the Appeal Panel stated in its reasons, the document provided a summary which “placed the tenant’s activities in a neighbourhood affected by other drug dealing and antisocial behaviours”. This was relevant to the Tribunal’s consideration of the effect of the tenancy on residents in the context of their neighbourhood generally ([115]).
(xii) Harrison AsJ also agreed with the Appeal Panel that there was no indication that the Primary Member attributed to the tenant any of the references to antisocial behaviour not relevant to her. Rather, the Primary Member used the document for the purpose outlined in s 154F(2)(a), concluding (as the tenant herself conceded) that her illegal activities contributed to certain of the anti-social behaviours described. Accordingly, the Primary Member did not err in finding that the NIS met the requirements of s 154F of the RT Act ([116]).
Read the decision on the NSW Caselaw website. |
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In sum: The Supreme Court allowed an appeal from an Appeal Panel in NCAT on the basis that the Tribunal below erred by (a) treating itself as not bound by s 41 of the Motor Dealers and Repairers Act 2013 (NSW) (the MDR Act) and (b) failing to afford procedural fairness to the appellant by ordering that disciplinary action be taken on grounds (or “particulars”) not referred to in the show cause notice issued to the appellant.
The Appeal Panel’s decision is available here, and the first instance decision of the Tribunal here.
Facts: The appellant in this case was a motor vehicle dealer and repairer, licenced under the MDR Act. In 2016, the appellant was issued two show cause notices under s 41 of the MDR Act. The first was withdrawn, having been the subject of proceedings in NCAT which were remitted to the Commissioner. The second, which alleged that the appellant had failed to disclose relevant convictions when applying for its repairers licence in September 2015, was not withdrawn, but was never proceeded with ([24]-[27]).
In January 2017, a third show cause notice was issued, setting out various allegations against the appellant in relation to advertising vehicles with inaccurate odometer readings, odometer tampering, failing to report suspected odometer tampering, and failing to keep adequate records ([28]-[30]).
The third notice alleged that the appellant was “not a fit and proper person to hold a licence under the MDR Act”, and listed Mr Philip Lee (the sole director and shareholder) as a “close associate” of the appellant. Pursuant to s 41(4), the appellant was invited to make submissions as to why disciplinary action should not be taken against it concerning the grounds specified, which the appellant did in February 2017 ([31]-[34]).
In March 2017, the Commissioner for Fair Trading (the Commissioner) disqualified the appellant from being a licence holder for 10 years (the Determination) ([3]).
In the Determination, the Commissioner found four contraventions of the MDR Act, which were the same as those set out in the third show cause notice ([37]).
The appellant applied to NCAT for a review of the Determination. In July 2018, the Tribunal set aside the Determination and instead, cancelled the appellant’s motor dealer licence and disqualified the appellant from holding such a licence for two years (the Tribunal’s Decision) ([4]).
The Tribunal did not find that any of the grounds in the Determination had been made out, but disqualified the appellant on a new ground which was raised during Mr Lee’s cross-examination ([4]).
This was that, when it applied for its motor vehicle repairers licence renewal in 2015, the plaintiff had failed to disclose Mr Lee’s charges and convictions relating to the use of “trader plates”, contravening cl 48 of the Road Transport (Vehicle Registration) Regulation 2007 (NSW) ([65]-[66]).
In May 2019, the Appeal Panel in NCAT dismissed the appellant’s appeal from the Tribunal’s Decision, holding that:
- while a show cause notice must specify the grounds on which disciplinary action may be taken against the recipient, there is no requirement in the MDR Act for a show cause notice to specify any particulars ([85]);
- while the Tribunal in review proceedings is confined to the grounds specified in the show cause notice, it is not confined to any particulars that are set out in the show cause notice ([86]);
- in this case, there was no breach of procedural fairness because the appellant was put on notice during the hearing of the additional matters which formed the basis of the Tribunal’s Decision ([87]);
The appellant sought leave to appeal to the Supreme Court ([5]).
Held (granting leave and allowing the appeal):
Whether the Tribunal is bound by s 41 of the MDR Act – YES
(i) Statutory provisions are to be construed in such a way as to promote their purpose: Interpretation Act, s 33 ([12]).
(ii) It is plain from the terms of s 41 that its purpose is to give the recipient notice of allegations made against it and an opportunity to respond. In order for the notice and opportunity to be worth something, it is necessary that there be some particularity to the allegations. This requires not only specification of the ground or grounds (such as those contained in ss 38 or 39 of the MDR Act) but also the provision of sufficient particulars to enable the recipient of the notice to respond in a meaningful way ([112]).
(iii) The decision-maker under s 41 (in this case, the Commissioner, acting as the Secretary’s delegate) is prohibited by s 41(5) from imposing any disciplinary action on a person unless they have been given a “show cause” notice and the Secretary has considered submissions made in accordance with the notice ([12]).
(iv) Although the Tribunal has access to the oral evidence and documents tendered in the hearing, it is still bound by the constraints, including s 41(5), on the original decision-maker because it stands in the shoes of the original decision-maker (Frugtniet v ASIC [2019] HCA 16; (2019) 93 ALJR 629) ([113]).
(v) Being bound by s 41, the Tribunal cannot impose disciplinary action on a person on a particular basis unless the person has been given a show cause notice which identifies that basis by specifying the relevant ground(s) in ss 38 or 39 and setting out the underlying allegations ([113]).
(vi) In this case, the third show cause notice (which was the only operative notice before the Tribunal) did not refer to the allegations on which the Tribunal based its finding that the appellant was not a fit and proper person and imposed disciplinary action ([95], [114]).
(vii) Thus, the Tribunal failed to comply with s 41, and the Tribunal’s decision was erroneous as a matter of law. The Appeal Panel ought to have set it aside and was in error in failing to do so ([114]).
Whether the appellant was denied procedural fairness – YES
(i) Adamson J was also satisfied that the decision of the Tribunal was vitiated by a lack of procedural fairness ([115], [126]).
(ii) Procedural fairness at common law requires the person affected to be given notice of the case the person has to meet ([116]).
(iii) The appellant was not aware that the Commissioner would be relying on Mr Lee’s prior convictions, his underlying conduct, or his attitude to those convictions until the final day of the hearing. Until that time, the Commissioner had not referred to them, nor had evidence been adduced in respect of them ([118])
(iv) The appellant knew that the Commissioner was aware of Mr Lee’s convictions, since their non-disclosure had been the subject of the second show cause notice, which was never proceeded with. From this, the appellant could be taken to assume that the Commissioner:
- chose not to include Mr Lee’s convictions or the non-disclosure of those convictions in the third show cause notice; and
- did not consider them to be relevant to the Determination since no documents relating to them had been served under s 58(1)(b) of the Administrative Decisions Review Act 1997 (NSW).
(v) At the very least, in order to satisfy the requirements of procedural fairness, the appellant was entitled to know whether Mr Lee’s convictions and his failure to disclose them were to be relied upon solely on credit, or whether they were to be relied upon on the issue of the appellant’s fitness to hold a licence ([121]).
(vi) It was “highly undesirable” that, throughout the hearing, the demarcation between fitness and credit, and what evidence the Tribunal would consider in relation to each, kept “chopping and changing” ([121]).
(vii) Adamson J rejected the assertion that, once the issue of Mr Lee’s convictions had been “raised” during his cross-examination, the Commissioner was entitled to rely on them for all purposes. Mr Lee had not referred to the convictions in any exculpatory way, but because he thought he was being asked about them ([122]).
(viii) Further, procedural fairness required that the appellant be given particulars of the additional matters relied on. It is not appropriate that a licence holder such as the plaintiff be required to guess from oral or written submissions what allegations are made against it ([123]).
(ix) The further allegations against the appellant were never particularised. The Commissioner’s submissions on the matter were not sufficient to amount to particulars, and were served after evidence was closed. It was no answer to this to say that the appellant could have applied for leave to re-open ([125]).
Whether the Tribunal erred in preventing the appellant from giving evidence on certain points, and in admitting what it referred to as the “police facts” – YES
(i) Because the Tribunal purported to take into account Mr Lee’s convictions on the question of Mr Lee’s “fitness”, it erred in stopping Mr Lee from giving evidence about the circumstances underlying the convictions: Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171 at [49] (Basten JA) and at [102]-[104] (Meagher JA, Whealy JA agreeing) ([44], [119]).
(ii) The Tribunal also erred in admitting and misapprehending the legal standing of “police facts” which had been tendered by the Commissioner in the criminal proceedings relating to Mr Lee’s convictions. The Tribunal mistakenly described these as an “agreed statement of facts”. The fact that Mr Lee was convicted could not be taken as confirmation of those facts, as Mr Lee was convicted on a guilty plea, which amounted to “no more than a plea to the constituent elements of the offence”. There was no evidence that the “police facts” were agreed, or how they were used in the Local Court proceedings. Accordingly, the statement of facts was irrelevant to the Tribunal’s determination ([48]-[49], [119]).
Resolution of the appeal
(iii) The Supreme Court allowed the appeal, but did not remit the matter back to the Tribunal, as there was “nothing to remit” ([128]).
(iv) Adamson J ordered that the Appeal Panel’s decision be set aside, and that the Tribunal’s below decision also be set aside, except insofar as it set aside the Determination of the Commissioner ([130]).
Read the decision on the NSW Caselaw website. |
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In sum: The Supreme Court confirmed that a firearms prohibition order (FPO) made under the Firearms and Dangerous Weapons Act 1973 (NSW) (the 1973 Act) remained in force under the Firearms Act 1989 (NSW) (the 1989 Act), and remains in force under the current Firearms Act 1996 (NSW) (the 1996 Act), despite some textual indications to the contrary.
Facts: The plaintiff, Mr Holdsworth, sought declaratory relief to the effect that an FPO made against him under s 69(1) of the 1973 Act does not constitute an FPO for the purposes of the 1996 Act ([1], [6]).
The 1973 Act was repealed upon the commencement of 1989 Act ([8]).
Section 39 of the 1989 Act provided for the making of FPOs. Clause 2 in Schedule 1 to the 1989 Act provided that an FPO “made under s 69(1)” of the 1973 Act and “in force immediately before that provision was repealed” would be “treated as” an FPO under the 1989 Act ([10], [13]-[14]).
The 1989 Act was repealed when the 1996 Act (currently in force) commenced ([16]).
In contrast to the 1989 Act, s 3 of the 1996 Act contains an emphatic statement of “principles and objects” ([17]).
Clause 11 of Schedule 3 to the 1996 Act provides that an FPO “made under section 39” of the 1989 Act and “in force immediately before the repeal of that section” is “taken to be” an FPO under the 1996 Act ([21]-[22]).
Held (dismissing the plaintiff’s summons and refusing declaratory relief):
(i) Although Beech-Jones J accepted that the text of the transitional provisions to the 1996 and 1989 Acts provides support for Mr Holdsworth’s argument, his Honour was satisfied that, on its proper construction, the 1996 Act did not have the effect of failing to preserve FPOs made under the 1973 Act ([1]).
(ii) The critical issue in these proceedings was the operation of cl 11 of Sch 3 to the 1996 Act, as that is the only provision capable of giving any legal force to the 1986 Act ([42]).
(iii) In construing “deeming” provisions which create a “statutory fiction”, it is important to consider the purpose for which the statutory fiction was introduced. Otherwise, the ordinary principles of statutory interpretation apply to the construction of deeming provisions, including that the task must generally begin with a consideration of the text itself, which necessitates reading the relevant section in the context of the whole statute (including any statement of objects and purposes) ([34]-[36], [39]).
(iv) However, there may be cases in which giving words their ordinary meaning may have a result “so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case”: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 304 (Gibbs CJ) ([37]).
(v) It must be remembered that a deeming provision often involves “artificial assumptions” such that “will frequently be difficult or unrealistic to expect the legislature to be able satisfactorily to [prescribe] the precise limit to the circumstances in which, or the extent to which, the artificial assumptions are to be made” ([41]).
(vi) On its face, cl 11 does not refer to orders that were either deemed to be made or given force under the 1989 Act. The Schedule does not refer to the 1973 Act, save for the heading to cl 11, which refers to “current [FPOs]” ([43]).
(vii) A consideration of the text of cl 11 suggests that the preferable “ordinary meaning” of the provision is that it is not apt to continue orders made under the 1973 Act. However, consistent with ss 33 and 34 of the Interpretation Act, it is appropriate to consider cl 11 in the context of the 1996 Act as a whole, especially having regard to its purpose and objects ([43]).
(viii) A consideration of the entire text of the 1996 Act confirms what is otherwise suggested in secondary materials, that the legislation was intended to impose “strict controls” and to continue the “existing regime of [FPOs]” ([44]).
(ix) It follows that it would be inconsistent with the statutory scheme for the 1996 Act to render FPOs made under the 1973 Act no longer enforceable. That result would be incongruous and absurd, given the context in which the 1996 Act was enacted and its objects and purpose ([45]).
(x) Given that cl 11 is a deeming provision with unclear operation, these matters warrant a wide view being taken of the scope of the deeming clause and the extent of the deeming given effect to ([46]).
(xi) The end result is that the reference to FPOs “made under section 39” in cl 11 of Schedule 3 to the 1996 Act includes a reference to FPOs deemed to be made under s 39 of the 1989 Act, and otherwise treats or assumes that the 1989 Act deemed FPOs made under the 1973 Act as having been “made” under the 1989 Act ([46]).
(xii) Even if the ordinary meaning of cl 11 was that orders made under the 1973 Act lapsed on the enactment of the 1996 Act, such a result would be “manifestly absurd or… unreasonable” such that a “realistic solution” could be found: Interpretation Act, s 34(1)(b)(ii) ([48]).
Read the decision on the NSW Caselaw website.
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| In sum: N Adams J ordered that a third party costs order be made against the shareholder and director of the unsuccessful appellant, and that costs be awarded on an indemnity basis, due to the unreasonable nature of the appeal.
Facts: N Adams J previously dismissed an appeal from a decision of Harrison AsJ (available here) ordering the appellant, Florida Kitchens Pty Ltd (Florida Kitchens), to provide security for costs to the respondent, Number One Cutting, in the sum of $40,000. The principal proceedings for which security for costs was sought was an appeal from a decision of an NCAT Appeal Panel (available here) ([1]).
Although the appeal was dismissed (here), N Adams J reserved the question of costs. The reason for this was that Number One Cutting foreshadowed that, if successful, third party costs would be sought against the director and sole shareholder of Florida Kitchens, Mr Andre Elias ([3]).
Held:
Whether to make a third party costs order – YES
(i) Section 98(1)(a) of the Civil Procedure Act 2005 (NSW) provides that the court has “full power to determine by whom, to whom and to what extent costs are to be paid”. The terms of s 98 are sufficient to confer on the court a general power to make orders against non-parties ([69]-[70]).
(ii) Just because a particular director provides instructions in relation to litigation, does not necessarily render her or him liable for third party costs ([80]).
(iii) However, having regard to all of the relevant principles and criteria applicable in applications like these, Adams J was satisfied that (a) Mr Elias was the real “driving force” behind the proceedings and was the person that benefitted the most from the litigation, despite his submission that Florida Kitchens is a separate legal identity, and (b) the unsuccessful appeal was part of a pattern of unsuccessful appeals over such a small sum of money that it was unreasonable ([79], [81]).
(iv) Her Honour was further satisfied that it was in the interests of justice that Florida Kitchens and Mr Elias be made jointly and severally liable for the respondent’s costs of the appeal in the Supreme Court ([84]).
Whether costs should be awarded on an indemnity basis – YES, in relation to costs of the appeal
(v) Indemnity costs are not made to punish an unsuccessful party for persisting with a case that fails. Rather, such an order is made to compensate a successful party for costs incurred in certain circumstances, such as when litigation has been conducted unreasonably or in bad faith. In turn, this includes circumstances where an action is commenced or continued where “the applicant, properly advised, should have known that he had no chance of success”, and/or the court takes the view that it was unreasonable for a party to have subjected the other party to the expenditure: Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401; [1988] FCA 364 (Woodward J); Hamod v State of New South Wales (2002) 188 ALR 659; [2002] FCA 424 at [20] ([86]-[87]).
(vi) Having already held that the proceedings were unreasonable for the purposes of making a third party costs order against Mr Elias, N Adams J saw no reason to depart from that finding for the purposes of determining whether the costs ought to be paid on an indemnity costs basis. In those circumstances, her Honour was satisfied that costs should be paid on an indemnity basis in relation to the appeal against Harrison AsJ’s decision ([88]-[89]).
(vii) However, in relation to the costs motion itself, although N Adams J was satisfied that they ought to be paid by a third party, her Honour was not satisfied that they should be paid on an indemnity basis. Although they were unsuccessful, it was not unreasonable for Mr Elias and Florida Kitchens to defend the third party indemnity costs order ([90]).
Read the decision on the NSW Caselaw website.
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| Paraiso v CBS Built Pty Ltd [2020] NSWSC 19011 March 2020 - Fagan J
In sum: The Supreme Court allowed an appeal from a decision of an NCAT Appeal Panel (available here), which in turn was an appeal from a first instance decision in the Consumer and Commercial Division (unpublished).
Fagan J allowed the appeal, amongst other reasons, because he found the appellant was denied procedural fairness when her legal representative was not given an opportunity to cross-examine the respondent’s expert witness. Importantly, this omission came after the Senior Member himself extensively cross-examined the appellant’s expert witness. Fagan J observed that these circumstances also amounted to a display of actual bias ([5], [106]).
In addition, Fagan J held that the Tribunal was mistaken in its interpretation of the contract as to what was required to effect a variation, and in its method of calculating the amount of quantum meruit payable in respect of purported variations ([5], [80], [97]-[98]).
Facts: The appellant, Ms Paraiso (the owner), contracted the respondent, CBS Build Pty Ltd (the builder), to construct a duplex of two dwellings on her residential property ([2]).
Various disputes arose between the parties. This prompted the builder to apply to the Tribunal under the Home Building Act 1989 (NSW) (HB Act) seeking payment for 63 claimed variations and adjustments to provisional sums. The owner alleged that some of the building work was defective and filed a cross-application seeking a partial refund ([3], [6]).
At first instance, the Senior Member ordered the owner to pay the builder $94,381.21 for the variations and adjustments, and made an order for rectification works ([5]).
The owner filed an internal appeal to the NCAT Appeal Panel in respect of the money order, and the Appeal Panel dismissed the appeal with costs. The owner then appealed to the Supreme Court.
Held (allowing the appeal):
Whether the Tribunal failed to afford the owner procedural fairness – YES
(i) Two building experts were present at the hearing – Mr Brincat for the owner and Mr Roberts for the builder. The Senior Member did not swear or affirm either expert. Although he instructed both to provide him with “professional assistance and… direct answers to [my] questions”, he proceeded to cross-examine only Mr Brincat ([109]-[112])
(ii) In reviewing the transcript, Fagan J made the following observations about the Senior Member’s questioning of Mr Brincat:
- It was “characterised by frequent interruption of Mr Brincat’s answers and explicit and at times contemptuous rejection of the witness’ opinions” ([112]).
- Senior counsel for the owner initially attempted to “secure an opportunity for his witness to complete his answers and explain the foundations of his opinions”. However, he apparently “perceived the Senior Member to have adopted an adverse view of Mr Brincat from before his oral evidence had commenced and that further intervention would be unproductive”. Fagan J observed that “many counsel in the same position would have had that perception” ([113]).
- The Senior Member “frequently cut off Mr Brincat’s answers and either turned to Mr Roberts or changed the subject” ([114], [115]).
- “Undue confinement of Mr Brincat’s answers was pervasive. The Senior Member exhibited hostility and resistance to his evidence from the outset. This was not a reaction that developed over time, in response to recalcitrance or argumentativeness of the witness” ([116]).
- On multiple occasions, the Senior Member “accused Mr Brincat of acting as an advocate rather than an independent expert and cited this as a justification for stopping his answers. The accusation lacked foundation on any occasion it was made” ([118], [120]).
(iii) Following the Senior Member’s cross-examination of Mr Brincat, he did not invite senior counsel for the owner to cross-examine Mr Roberts ([125]).
(iv) In these circumstances, Fagan J held:
- The Senior Member’s decision was clearly impacted by the form of questioning he used. For example, although the Senior Member stated in his reasons that Mr Brincat failed to provide explanations or opinions on certain issues, the reality was that the Senior Member had prevented Mr Brincat from addressing those subjects ([117], [126]).
- “Such cross-examination cannot be regarded as consistent with procedural fairness when conducted by the Tribunal itself. The Senior Member departed from the requirements of a fair hearing by preventing the plaintiff’s witness from giving material parts of his testimony and by questioning with a manifest preconception of what the answers should be …. The Senior Member’s questions were transparently directed to extracting from Mr Brincat his agreement with conclusions that the Senior Member had apparently already formed” ([121]).
- Although “[i]n some cases a failure to invite or permit cross-examination of an expert in the Tribunal might not constitute a denial of procedural fairness”, in this case, where the Senior Member took it upon himself to cross-examine Mr Brincat in a “vigorous, critical and at times unfair manner, procedural fairness certainly could not be restored unless the [appellant]’s counsel was invited to cross-examine Mr Roberts, and probably not even then” ([130]).
- The failure to invite cross-examination was, “in the circumstances, the denial of an important aspect of being heard” and “gave rise to a manifestation of pre-judgment, being a form of actual bias” ([130]).
- “It would be reasonably apprehended by the parties that the Senior Member has already been strongly influenced in his assessment of quantum meruit by pre-judgment regarding all of Mr Brincat’s opinions”. Given this, Fagan J emphasised that the matter “should not be remitted to the Senior Member who previously heard the case”” ([133]).
Whether the Tribunal erred in its interpretation of cl 14 of the home building contract between the parties – YES
(v) The home building contract used by the parties was a pro forma agreement provided by the Master Builders Association of NSW. Its proper construction has potential significance for other participants in the residential building industry ([79]).
(vi) Clause 14(b) in the contract provided that variations, including additional work, could be “established” in a range of ways, including written instructions from the owner, a “request” from the owner, the supply of post-contract details such as drawings, the discovery of otherwise unknown or latent conditions, and/or instructions from a relevant authority ([30]).
(vii) Separately, cl 14(c) provided that the builder need not carry out variations requested by the owner unless the builder consents, while cl 14(d) provided that, should the builder agree to undertake a variation, it should be detailed in writing and signed by both parties ([30]).
(viii) At first instance, the Senior Member found that a failure to comply with cl 14(d) did not prevent the builder from recovering the cost of complying with an oral instruction given under cl 14(b), as the requirement in cl 14(d) is “not in exclusionary terms” ([45]).
(ix) Fagan J held that the Senior Member’s construction was not correct, and oral instructions from the owner were not capable of giving rise to a contractual variation under cl 14 ([47]).
(x) Reading cl 14 as a whole shows that cl 14(b) does not provide an independent, alternative route by which there may be brought about a binding contractual variation to the works without compliance with cl 14(d) ([49]).
(xi) The effect of cl 14(d) is merely to expand the concept of what may be treated by the builder as an instruction or request to vary the works. The requirement in cl 14(c) that the builder must consent before the parties are contractually bound confirms that cl 14(a) and (b) do not operate independently of the rest of the clause, and do not constitute alternative, standalone provisions under which a contractually effective variation to the works can come into being ([33]-[34], [47], [49]).
(xii) Clause 14(d) contains imperative language – “the variation is to be etc” – from which can be imputed an objective intention that non-compliance is to have a consequence. That is, if the requirement that variations be “detailed in writing” is not met, then either party may invoke the omission to deny that the putative variation has altered their contractual obligations ([38]-[39]).
(xiii) If there is no written detail signed by the owner, there will be no variation capable of being contractually enforceable by the builder. In that situation, the builder’s only recourse is a claim in restitution for a quantum meruit ([41], [69]).
(xiv) If the Senior Member’s construction were correct, cl 14 would also be inconsistent with the statutory term in cl 1(2) of Sch 2 to the HB Act and would be unenforceable by operation of s 7E: Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 at [28]-[29] (Basten JA) ([51]).
(xv) In applying his construction of cl 14, the Senior Member did not examine each putative contractual variation for compliance with cl 14(d), as he was required to. For this reason, Fagan J found that the proceedings had to be remitted to the Tribunal at first instance to determine whether each variation was detailed in writing and signed by both parties ([57]-[58], [62], [65], [67], [69]).
(xvi) Fagan J also noted that the mere fact of payment by the owner of the builder’s invoices in respect of the variations could not support a finding of contractual agreement on quantum ([74]).
(xvii) In respect of the refunds of those payments sought by the owner, the Senior Member also erroneously stated that the owner bore the onus of proving that the invoices were excessive. This reversed the true onus ([106]).
Whether the Tribunal erred in its calculation of quantum meruit – YES
(xviii) The owner submitted that that the Senior Member erred in his assessment of quantum meruit by considering whether the costs incurred by the builder were “reasonable costs”, rather than “actual costs” as assessed by reference to the contract ([97-[99]).
(xix) Clause 14(g), (h) and (i) in the contract provided specifically for the cost of “additional work due to a variation”, including the price of materials, the labour rates for work carried out by the builder’s employees, and the cost of work executed by a subcontractor ([30]).
(xx) The owner relied on Mann v Paterson Constructions Pty Ltd [2019] HCA 32 (Mann v Paterson Constructions), in which the High Court addressed the proper assessment of restitution in circumstances where a home building contract was repudiated prior to the completion of work. That case was summarised in an earlier edition of the Legal Bulletin, available here ([99]).
(xxi) Gageler, Nettle, Gordon and Edelman JJ held that contract rates are a ceiling upon reasonable remuneration where a builder’s non-contractual quantum meruit claim arises from termination of a contract through fault of the owner ([101]-[102]).
(xxii) It must follow in logic and in principle that contract rates will similarly be an upper limit on a quantum meruit claim that has arisen because the two parties did not sign written details of each variation ([102]).
(xxiii) In this case, it was apparent from the Senior Member’s reasons that he did not compare the amounts that he assessed as “reasonable”, for any of the variations, against the upper limit of a calculation under cl 14(h) and (i). For each purported variation under which additional work was carried out by the builder’s employees or subcontractors, the Senior Member should have determined what price would be found by applying those clauses ([103]).
(xxiv) Fagan J noted that the Senior Member and the Appeal Panel “cannot be criticised” for failing to apply the principle emerging from Mann v Paterson Constructions, given it was handed down in October 2019, after those decisions were made. Nevertheless, the law having been declared by the High Court, and there being a “clear logical extension” to the present circumstances, this ground of appeal was upheld ([104]).
Read the decision on the NSW Caselaw website.
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| Western Australia Court of Appeal
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| JKC Australia LNG PTY LTD v CH2M Hill Companies Ltd [2020] WASCA 38
30 March 2020 - Buss P and Vaughan JA
In sum: The Court of Appeal of the Supreme Court of Western Australia (WASCA) dismissed an adjournment application sought on the basis that, due to the COVID-19 pandemic, the hearing would be conducted by telephone or video-link. The WASCA rejected submissions that such a hearing would necessarily be inadequate, saying the new arrangements are a necessary but proportionate alteration to the normal practice and procedure of the court, consistent with the administration of justice.
Facts: On 18 March 2020, the Chief Justice of Western Australia issued a public notice that, amongst other things, advised the public that all appearances in person at appeal hearings would be suspended unless otherwise ordered ([5]).
The respondents in this appeal sought an adjournment, submitting that an appeal hearing by telephone or video-link would be manifestly inadequate (as to telephone) or inadequate (as to video-link) ([7]).
In particular, Senior Counsel for the respondents suggested that he (and thereby the respondents) would be at a significant disadvantage if he could not see and “read” the court throughout the appeal hearing, referring to the benefit of non-verbal communications. Further, it was submitted that the respondents were “entitled” to a “normal hearing”, and that the matter should be adjourned until such time as the parties could attend in person ([7]).
Held (dismissing the application for adjournment):
(i) The WASCA rejected the respondent’s submissions, saying it has now heard a number of appeals and other applications by telephone, and its experience has been that the conduct of appeal hearings by telephone has been satisfactory ([6]).
(ii) The court's experience has been that, “having regard to the other practices and procedures in the Court of Appeal, the conduct of an appeal hearing by telephone provides for comprehensive and considered dialogue and debate between bar and bench as to the issues raised by the appeal. It is not the case that an appeal hearing by telephone is manifestly inadequate or that an appeal hearing by video‑link is inadequate” ([7]).
(iii) “In the extraordinary circumstances presented by the COVID-19 pandemic the arrangements provided for in the public notice of 18 March 2020 are a necessary but proportionate alteration to the normal practice and procedure of the court consistent with the due administration of justice. Were the submission of senior counsel for the respondents to be accepted this court would be unable to conduct any court hearings for an indeterminate time. That would be antithetical to the due administration of justice in the State of Western Australia and at odds with achievement of the goal and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA)” ([8]).
(iv) In circumstances where the hearing below was conducted on agreed facts and the questions of law were clearly identified in the grounds of appeal and notice of contention, the WASCA did not accept there was a real risk that the respondents might be materially prejudiced in a telephone hearing because of any difficulty in procuring timely instructions during that hearing ([13]-[14]).
(v) If such an issue were to arise, it could be dealt with in a practical manner at the hearing or by allowing leave to file short supplementary submissions after the hearing ([14]).
(vi) The WASCA took into account the respondent’s suggestion that without being able to observe and participate in an appeal hearing in real-time, a party might feel aggrieved about an appeal outcome. Indeed, justice must not only be done, but must be seen to be done. However, in the circumstances of this appeal, the Court of Appeal was unable to perceive any real risk of practical injustice in proceeding with a hearing by telephone ([15]).
(vii) For similar reasons, the WASCA considered there was no real risk of material prejudice if, as suggested, Senior Counsel could not be co-located with his junior counsel and instructors during a telephone appeal hearing. “While it is no doubt inconvenient that counsel are not co-located, it remains possible for counsel to communicate electronically” ([16]).
(viii) Although the WASCA declined the adjournment, it did accommodate a request by the respondents that the court hold a “bifurcated hearing” whereby, after the appellant made its oral submissions, the hearing would be stood over for a week to allow the respondents’ counsel to confer with their instructing solicitors ([20]).
Read the decision on the AustLII website. |
| NSW Court of Appeal - Bulletin
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| The NSW Court of Appeal publishes a regular bulletin containing summaries of decisions of interest in Australia and internationally. Find below links to several such decisions from recent bulletins. Each case title is hyperlinked to the full decision available on NSW Caselaw or the Federal Court of Australia website.
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| Kay v Playup Australia Pty Ltd [2020] NSWCA 33EQUITY – Equitable remedies – Relief against forfeiture – Doctrine confined to proprietary or possessory rights as distinct from mere contractual rights
CONTRACTS – Remedies – Penalty – Doctrine extends beyond payment of a stipulated sum of money to deprivation of contractual rights – Application to deprivation of the benefit of restraint clause and warranties
CONTRACTS – Construction – Interpretation – Dependent and independent obligations – Whether ‘clear words’ are required to find a relation of independency between obligations
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| Attorney General for New South Wales v Melco Resorts & Entertainment Limited [2020] NSWCA 40
COMMISSIONS OF INQUIRY – inquiry established under Casino Control Act 1992 (NSW) – whether conferral of powers and authorities of a commissioner under the Royal Commissions Act 1923 (NSW) included power to compel testimony or production of documents irrespective of claim of legal professional privilege – meaning of s 143A of Casino Control Act – whether a witness summoned by or appearing before the person presiding at an inquiry entitled to claim legal professional privilege.
PRIVILEGE – legal professional privilege – whether s 143A of Casino Control Act operated to abrogate legal professional privilege – whether s 143A of Casino Control Act conferred power to compel production of documents irrespective of legal professional privilege.
STATUTORY INTERPRETATION – whether s 17(1) of the Royal Commissions Act conferred a power or authority on a commissioner – whether s 143A of the Casino Control Act picked up s 17(1) of the Royal Commissions Act and abrogated legal professional privilege – principle of legality – legislation to be construed in context of case law existing at time of enactment – meaning of “protection” afforded to a witness in s 11(3) of Royal Commissions Act – permissible use of extrinsic materials.
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| | Gaynor v Attorney General of New South Wales [2020] NSWCA 48
APPEAL – Leave to appeal – whether matter at issue amounting to or of the value or involving $100,000 or more – need for party seeking to appeal to demonstrate that jurisdictional threshold satisfied
CONSTITUTIONAL LAW – whether Part 3A of Civil and Administrative Tribunal Act 2013 (NSW) unconstitutional – whether, notwithstanding Part 3A, NCAT invested with federal jurisdiction – whether Part 3A entails discrimination contrary to s 117 of the Commonwealth Constitution
COURTS AND TRIBUNALS – whether Local Court of New South Wales has jurisdiction to entertain a diversity suit involving publication on the internet of matters alleged to contravene s 49ZS of the Anti-Discrimination Act 1977 (NSW)
DISCRIMINATION LAW – whether complaint by a resident of New South Wales against a resident of Queensland referred by President of Anti-Discrimination Board to NCAT could be heard by Local Court of New South Wales
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| Universal 1919 Pty Ltd v 122 Pitt Street Pty Ltd [2020] NSWCA 50
ADMINISTRATIVE LAW – denial of procedural fairness – whether common law right to procedural fairness excluded by statute – Environmental Planning and Assessment Act 1979 (NSW) Sch 5 – legislative intent plain
ENVIRONMENT AND PLANNING – statutory interpretation – whether carving into cement render of wall constitutes “development” – Environmental Planning and Assessment Act 1979 (NSW) s 4.2 – whether development consent obtained
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| Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba (No 2) [2020] FCAFC 39HUMAN RIGHTS – appeal from judgment dismissing an application for relief in relation to alleged contraventions of the Racial Discrimination Act 1975 (Cth) – where a local Council determined the franchise for a ballot to assess community views in relation to the construction of a radioactive waste management facility in the Council’s area of responsibility – where land proposed for radioactive waste management facility neighbours land in respect of which Aboriginal persons have recognised native title rights and interests – where Council passed resolutions having the effect that the possession of native title rights and interests would not qualify a person to participate in the ballot – whether primary judge erred in concluding that the act of passing the resolutions did not involve a distinction, exclusion, restriction or preference based on race
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| FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29MIGRATION – appeal from Federal Circuit Court of Australia dismissing application for review of a decision of the Immigration Assessment Authority – where Authority affirmed decision of Minister’s delegate refusing grant of protection visa – apprehended bias – where Authority was provided with information regarding criminal charge against appellant – where Authority expressly disavowed reliance on the information – whether fair-minded lay observer might reasonably apprehend bias – legal unreasonableness – whether Authority erred by rejecting appellant’s claim of statelessness – whether Authority erred in making findings based on appellant’s manner of giving evidence – appeal allowed
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| | 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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