| | | | | NCAT Legal Bulletin Issue 3 of 2021
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| The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
This issue features case summaries of recent decisions from the Supreme Court of New South Wales, New South Wales Court of Appeal and the Western Australian Court of Appeal, including:
- Makowska v St George Community Housing Ltd [2021] NSWSC 287 – in which the Supreme Court upheld the decision of the NCAT Appeal Panel, and dismissed the appellant tenant’s appeal seeking compensation for breach of the landlord respondent’s obligation to provide quiet enjoyment of the premises, following stormwater damage to the property’s common area.
- Nutek Constructions Pty Ltd v Slotwinski [2021] NSWSC 274 – in which the Supreme Court partially allowed the summons of the appellant, seeking leave to appeal on a question of law from a decision of the NCAT Appeal Panel, and partially allowed the respondent’s Notice of Motion seeking summary dismissal. The appellant had been contracted by the respondent for building work, and after the termination of the contract the appellant sought quantum meruit payment, and the respondent sought damages.
- Hastwell v Health Care Complaints Commission [2021] NSWCA 22 – in which the Court of Appeal dismissed the summons of a complainant to the Health Care Complaints Commission who sought judicial review of the decision of the Medical Council of NSW to discontinue his complaint against a health practitioner.
- Folbigg v Attorney General of New South Wales [2021] NSWCA 44 – in which the Court of Appeal refused the application of Ms Folbigg, who sought judicial review of the decision made at an inquiry into her criminal convictions for the murder and manslaughter of her four children, which found that there was no reasonable doubt as to her guilt.
- Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40 – in which the Court of Appeal ordered the name of a legal practitioner to be struck from the roll, due to his repeated misrepresentations as to residence to authorities in NSW and Queensland in order to obtain a barrister’s practising certificate.
- Thayli v Commissioner of Police [2021] WASCA 46 – in which the Court of Appeal of Western Australia dismissed the appeal of the operator of a shooting range, which sought review of the respondent’s decision to impose limitations on its approval of the appellant’s shooting range. The Court found that the appellant’s claim that the respondent acted without power was based on a reading of the provisions of the relevant legislation that was incongruous with the purpose of the Firearms Act 1973 (WA).
This issue also provides links to a number of summaries published separately by the NSW Court of Appeal Decisions of Interest Bulletin.
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| Supreme Court of New South Wales |
| Makowska v St George Community Housing Ltd [2021] NSWSC 287
26 March 2021 - Basten J
In sum: The Supreme Court upheld the decision of the NCAT Appeal Panel, and dismissed the appellant tenant’s appeal seeking compensation for breach of the landlord respondent’s obligation to provide quiet enjoyment of the premises, following stormwater damage to the property’s common area.
Facts: The plaintiff tenant sought compensation for breach of the appellant landlord’s obligation to provide quiet enjoyment of the premises, due to a failure to repair common area drains which resulted in stormwater blocking convenient access to the car park and causing deterioration of the lawn in a recreational area, which she helped to maintain, and enjoyed. At first instance the Tribunal upheld her claim in part, and granted her a 12 month rent reduction. The Appeal Panel dismissed her appeal. The plaintiff sought judicial review at the Supreme Court on the basis that the Appeal Panel had relied on an irrelevant consideration in finding that the Tribunal below’s error of law in applying s 16(1) of the Civil Liability Act 2002 (NSW) (CLA) had no impact on the ultimate decision to deny the appellant’s compensation claim ([1]-[5], [29]).
Held (dismissing the summons):
(i) The path provided by statutory appeal, pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) and r 50.3(1) of the Uniform Civil Procedure Rules 2005 was not followed, and the plaintiff commenced proceedings in the supervisory jurisdiction of the Court under s 69 of the Supreme Court Act 1970 (NSW). In doing so, she avoided compliance with the time limit and with the obligation to obtain leave before the matter could proceed in the Court. It is appropriate for the court to ask (a) has either party been materially disadvantaged by the failure to seek leave to appeal within the prescribed time; (b) if leave to appeal had been sought, is it likely that leave would have been granted; and (c) would there be a miscarriage of justice if the court declined to conduct a judicial review of the Appeal Panel decision? Other than referring to her status as an unrepresented litigant, the plaintiff gave no explanation for her failure to seek an extension of time in which to appeal ([6]-[8], [12]-[14]).
(ii) The plaintiff relied on the “irrelevant consideration ground” for judicial review, but did not identify a consideration by the Tribunal which was forbidden or prohibited by law. Instead, the plaintiff conflated the “irrelevant consideration” ground with the “no evidence” ground; there is a clear distinction between a claim that the Tribunal’s decision was unsupported by any evidence logically probative of the underlying facts, and stating that the Tribunal took into account a matter which it was prohibited from considering ([29]-[31]).
(iii) Though not explicitly pleaded, the Tribunal treated the second claim, loss of a “facility”, as a claim for rent reduction pursuant to s 44 of the Residential Tenancies Act 2010 (NSW). This was not challenged before the Appeal Panel as legally erroneous. On one reading, the Tribunal’s reasoning in relation to this issue was subsequent to and did not involve the right to quiet enjoyment, but was rather a grant of relief under the statute. Despite this lack of clarity, when considering the Tribunal’s reasons as a whole, the better view is that there was no finding of a breach to the right of quiet enjoyment. There would rather have been good reason to refuse relief under s 44, unless the respondent’s conduct was sufficiently serious in its effects to warrant the description of a reduction or withdrawal of a facility, language which does not necessarily involve loss of quiet enjoyment of the premises. While there was arguably a degree of confusion in the Tribunal’s reasons, there was no presentable error of law on the part of the Appeal Panel in dealing with the grounds raised before it. The summons was therefore dismissed ([37]-[43], [48]-[49]).
Read the decision on the NSW Caselaw website.
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| Nutek Constructions Pty Ltd v Slotwinski [2021] NSWSC 274
25 March 2021 - Garling J
In sum: The Supreme Court partially allowed the summons of the appellant, seeking leave to appeal on a question of law from a decision of the NCAT Appeal Panel, and partially allowed the respondent’s Notice of Motion seeking summary dismissal. The appellant had been contracted by the respondent for building work, and after the termination of the contract the appellant sought quantum meruit payment, and the respondent sought damages.
Facts: The appellant was contracted by the respondent to construct residential premises for $1.65 million, however, after partial (25%) completion, the contract was terminated. The appellant commenced proceedings at the Tribunal seeking payment for the work completed on a quantum meruit basis, and the respondent commenced proceedings in the Supreme Court seeking damages for, among other things, the cost to complete the building and allegedly defective construction work. At first instance the respondent was ordered to pay the appellant $36,500, and both parties appealed. The decision was set aside and at a new hearing the respondent was ordered to pay the appellant $55,558. The respondent appealed again, and a second Appeal Panel set aside that order, and decided that the appellant’s claim for quantum meruit was less than the respondent’s set-off entitlement. The appellant filed a summons in the Supreme Court, and the respondent sought to have this summons summarily dismissed pursuant to either r 13.4 of the Uniform Civil Procedure Rules 2005 or in accordance with the Court’s inherent jurisdiction ([5]-[17]).
Held (summarily dismissing part of the summons):
(i) A wrong finding of fact does not amount to an error of law, although where there is no evidence to support a factual finding, that is a question of law. The appellant alleged an error of law on the basis that there was no evidence to support a number of identified factual findings. However as it was unclear whether or not the Court had before it all the material presented to the Tribunal and Appeal Panel, and unclear whether there was some evidence available to the Appeal Panel upon which it was entitled to base its findings, the ground could not be summarily dismissed ([24], [26]-[27], [29]).
(ii) The appellant’s second ground, which claims the contract was for $2.019 million rather than $1.65 million, was summarily dismissed, as this is a question of fact. The appellant at all times in hearings at NCAT contended that the contract price was $1.65m. The Appeal Panel made its findings of fact in accordance with the submissions made to it by the appellant. It was not then open to the appellant, at the Supreme Court, to suggest, by way of the assertion of an error of law, that the contract was not that which it contended it was, and that which it asked NCAT to act upon ([32]-[34], [40]-[43]).
(iii) The third ground of appeal, regarding whether the Appeal Panel erred in its construction of the contract with respect to whether the installation of a lift in the building was within the contract or excluded from it, was not summarily dismissed. Due to the lack of evidence as to what was before the Tribunal at first instance or the Appeal Panel, the Court was prepared to accept that there was an argument that it was a question of law as to what was, or was not, a part of the contract and which must be determined by application of various provisions of the contract ([44]-[47]).
(iv) Although the respondent sought security for costs, the Court found that such an order could not be made as no lawyer had been retained to appear for the respondent, who had provided no indication of any intention to retain lawyers for the appeal ([55]-[60]).
Read the decision on the NSW Caselaw website.
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| | New South Wales Court of Appeal |
| Hastwell v Health Care Complaints Commission [2021] NSWCA 22
3 March 2021 - Basten, Leeming and White JJA
In sum: The Court of Appeal dismissed the summons of a complainant to the Health Care Complaints Commission who sought judicial review of the decision of the Medical Council of NSW to discontinue his complaint against a health practitioner.
Facts: The applicant made a complaint to the Medical Council of NSW regarding the conduct and performance of a consultant psychiatrist, Dr Parmegiani. The applicant had had a contractual relationship with Dr Parmegiani, to whom he had been referred for a medico-legal report for the purposes of a disability discrimination claim through the Australian Human Rights Commission (AHRC) against his previous employer. The complaint was referred to the respondent (the Commission), and was discontinued. Two years later the applicant filed a summons seeking judicial review of this decision. The primary judge dismissed the summons and the applicant sought leave to appeal ([1]-[3], [25]-[27]).
Held (dismissing the summons):
Basten JA:
(i) Although it was conceded by the Commission that it owed a duty of procedural fairness to the complainant, the basis of that duty was not identified. The practitioner the subject of the complaint, not the complainant, is the object of possible sanctions, and will usually be entitled to procedural fairness during the complaint-handling process. The principles of natural justice regulate exercise of a “power to destroy or prejudice a person’s rights or interests” conferred by statute; it is by no means clear that any such obligation is owed to a complainant. The paramount duty of the Commission is to the public, not to the individual complainant: s 3(2), Health Care Complaints Act 1993 (NSW) (HCC Act) ([11]-[13]).
(ii) Certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. Usually, the integrity of the judicial process would be compromised if the courts were to decide who should be prosecuted and for what; however this rationale does not apply in disciplinary proceedings. The fact that a “client” may make a complaint about a practitioner does not create an obligation in the Commission to take any particular action on the basis of that complaint, nor to do more than identify in broad terms the reason why a particular step has, or has not, been taken ([17]).
(iii) The applicant alleged that the primary judge adopted an active role as contradictor, which was said to contravene the principle of neutrality of a tribunal the subject of judicial review. There is a concern that if a matter were to be remitted to a tribunal for further consideration, the tribunal’s impartiality would have been compromised by its role in resisting judicial review proceedings. However it does not follow that an error has occurred at a trial because a decision-maker adopts an active approach in defence of its procedures ([20]).
Leeming JA (White JA agreeing):
(iv) In assessing whether there was sufficient procedural fairness, it is to be borne in mind that: the Commission deals with a high volume of complaints, a medical practitioner against whom a complaint is made has important rights, it is the practitioner who is at risk of an adverse finding, and the legislation is not directed to the possibility of making an adverse finding against the complainant ([77]).
(v) The appellant’s assertion that Dr Parmegiani, having been hired to produce a medico-legal report, should have ensured that report met the standards required by the rules of evidence could not be accepted for several reasons. First, the report was prepared for the purposes of mediated settlement at the AHRC. Second, the legal requirements of expert evidence applicable to court proceedings do not fall within the complaints handling regime established by the HCC Act. Third, the report was addressed to the applicant’s solicitors, who were well qualified to assess whether it was admissible. Fourth, even if there were errors in the report, Dr Parmegiani was obliged to give his opinion and nothing in the report comes close to an allegation warranting further investigation by the Commission. Fifth, the appellant’s submission that Dr Parmegiani made material errors of fact in the report was based almost exclusively on his own assertions, unsupported by much further evidence. Sixth, merely because a medical practitioner makes an incorrect diagnosis, which is not established in the case of Dr Parmegiani’s report, it does not follow that it is not open to the HCCC to decline to deal with a complaint ([85]-[91]).
(vi) Section 3(2) identifies a purpose for the HCCC; it does not, as the appellant asserts, directly constrain power or give rise to mandatory relevant considerations or other grounds of judicially reviewable error. The summons was dismissed ([93]-[94]).
Read the decision on the NSW Caselaw website.
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| Folbigg v Attorney General of New South Wales [2021] NSWCA 44
24 March 2021 - Basten, Leeming and Brereton JJA
In sum: The Court of Appeal refused the application of Ms Folbigg, who sought judicial review of the decision made at an inquiry into her criminal convictions for the murder and manslaughter of her four children, which found that there was no reasonable doubt as to her guilt.
Facts: The appellant (Ms Folbigg) was convicted in 2003 for murder and manslaughter in relation to her four children. In 2018-19, following a petition by Ms Folbigg, an inquiry into her convictions and sentence was conducted on the basis of new material which raised a reasonable doubt as to her guilt and the appropriateness of the sentence. New medical evidence was submitted suggesting the children died of natural causes. It was also submitted that the convictions had been reliant on the subsequently discredited “Meadow’s law”, which said that “one cot death is a tragedy, two cot deaths is suspicious, and until the contrary is proved, three cot deaths is murder”, and the statistical improbability of four unexplained infant deaths in one family. The inquiry found there was not a reasonable doubt as to her guilt, and Ms Folbigg sought judicial review of that decision at the Court of Appeal.
Held (dismissing the summons for judicial review):
(i) Unless a relevant and material legal error could be identified, the Court is neither required nor permitted to intervene. It is no part of the Court’s function of review to form its own opinion as to whether a reasonable doubt attended the convictions of the applicant, and even if it were to form such a view it would not be entitled to give effect to it ([9]).
(ii) The grounds upon which this Court can undertake judicial review depend in part upon the nature of the function being exercised by the decision-maker. Thus, review of decisions made by a court may be more constrained than review of administrative decisions, because a judge exercising judicial power will have jurisdiction to decide legal issues necessary for the determination of a case. That is not necessarily true with respect to other decision-makers ([10]).
(iii) The officer did not apply the now discredited “Meadow’s law”, and there was no error of principle in the officer’s assessment of the evidence in the inquiry. That assessment involved a holistic, rather than a staged, approach to the evidence, with the officer’s conclusions dependent on a synthesis of competing and complicated factors ([54], [104]).
(iv) Ms Folbigg was not denied procedural fairness in any aspect of the judicial officer’s conduct of the inquiry. Many of the matters complained of either could have been raised at the inquiry but were not, or, upon proper consideration of the judicial officer’s Report, lacked any factual basis ([109], [113], [116], [117], [134]- [136], [140], [149], [153]-[154], [156], [158]-[159]).
Read the decision on the NSW Caselaw website.
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| Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40
25 March 2021 - Payne and McCallum JJA and Beech-Jones J
In sum: The Court of Appeal ordered the name of a legal practitioner to be struck from the roll, due to his repeated misrepresentations as to residence to authorities in NSW and Queensland in order to obtain a barrister’s practising certificate.
Facts: The respondent (Mr Siggins) was admitted as a lawyer in New South Wales in 2007, but failed the NSW Bar Exams in 2008 and 2009, and did not complete the NSW Bar Practice Course necessary to practise as a barrister. Nevertheless Mr Siggins practised as a barrister in NSW between 2008 and 2017. Between 2011 and 2017 he made six representations to the Queensland Bar Association that his principal place of practise for the next 12 months would be Queensland. However Mr Siggins lived in Sydney and practised as a barrister in NSW from chambers in Sydney, whilst holding a Queensland practising certificate. The Bar Council alleged that Mr Siggins dishonestly misrepresented the true position to regulatory authorities, and sought to have his name removed from the roll of solicitors. In separate proceedings heard at the same time, Mr Siggins sought a declaration that relevant sections of the legal profession legislation in NSW, Queensland and Tasmania were contrary to ss 92, 109 and/or 117 of the Commonwealth Constitution and therefore invalid.
Held (striking the name of the respondent from the roll of solicitors):
(i) The seven representations made to the Queensland Bar Association by Mr Siggins between June 2011 and August 2017, for the entirety of which his principal place of practice was NSW, were false to his knowledge and dishonest in that Mr Siggins applied for a practising certificate knowing that it was not his intention to practise in Queensland in the following year. By his failure to apply for a New South Wales practising certificate immediately prior to the commencement of each financial year from 2012/2013 to 2016/2017, Mr Siggins contravened s 45(6) of the Legal Profession Act 2004 (NSW) and cl 5 of sch 3 to the Legal Profession Uniform Law (NSW) ([112], [118]).
(ii) Mr Siggins’ Constitutional challenges to the Tasmanian and Queensland legislation could not be upheld because there was no controversy, dispute or matter that arose between Mr Siggins and the Bar Council about any immediate right, duty or liability concerning Mr Siggins under the Tasmanian and Queensland Acts ([130]).
(iii) The impugned NSW provisions may operate on persons who reside outside of NSW; however there is no extra-territorial effect as they are directed to the conduct of the legal profession within NSW. Even if there was extra-territorial effect, their connection to NSW is “direct and close”. There could not be discrimination against Mr Siggins as a resident of another state as he resided at all relevant times in NSW, not Queensland. The only burden the legislation might be seen as placing on interstate intercourse is the possibility that a legal practitioner located interstate, whose principal practice is nevertheless within NSW may have to obtain a NSW practising certificate, and this burden is no greater than that imposed on intrastate intercourse ([138], [147]-[148], [160]).
(iv) Mr Siggins’ dishonest conduct was incompatible with the characteristics of honesty and integrity required of a barrister and he was considered to be currently unfit to practise as a barrister. His name was ordered to be removed from the roll ([191]).
Read the decision on the NSW Caselaw website.
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| | Western Australian Court of Appeal |
| Thayli v Commissioner of Police [2021] WASCA 46
19 March 2021 - Murphy, Mitchell and Beech JJA
In sum: The Court of Appeal of Western Australia dismissed the appeal of the operator of a shooting range, which sought review of the respondent’s decision to impose limitations on its approval of the appellant’s shooting range. The Court found that the appellant’s claim that the respondent acted without power was based on a reading of the provisions of the relevant legislation that was incongruous with the purpose of the Firearms Act 1973 (WA) (the Act).
Facts: Thayli Pty Ltd (Thayli) operates a shooting range, open to members of the public pursuant to s 8(1)(m) of the Act, which provides that a person may use a firearm owned by an approved club or organisation without a licence “on an approved range that is properly constructed and maintained”. “Approved” is defined to mean approved by the respondent (the Commissioner). Section 20(1)(ac) authorises the Commissioner to impose reasonable restrictions on a licence, permit or approval granted under the Act, if it is satisfied that it is in the public interest to do so. In 2018 the Commissioner imposed conditions on the approval of Thayli’s range relating to the conduct and operation of the range, as distinct from conditions related solely to its construction and maintenance. Thayli sought review of that decision reviewed at the State Administrative Tribunal, which found the Commissioner only had power to impose conditions related to the construction or maintenance of the range. On appeal by the Commissioner, the Supreme Court found the Tribunal had erred in law. Thayli appealed ([4]-[13]).
Held (dismissing the appeal):
(i) Thayli’s submission that the Commissioner had no express statutory power to approve a range was rejected; in the absence of an express provision, the power is inherent in and conferred by s 8(1)(m) ([20]-[23]).
(ii) The s 20(1)(ac) power to impose conditions on approval is conferred in broad terms, and enables conditions directed to the safe operation of a range. The only relevant limitation is the requirement that any conditions be reasonable and that the Commissioner be satisfied that they are in the public interest. If this could not be done, it would be incongruous with the purpose of the Act, which is the protection of the public. The proposed construction put forward by Thayli would result in the unlikely scenario that a condition could require the erection of a sign stating that certain dangerous conduct was prohibited, but could not actually prohibit that conduct ([36]-[39], [43]).
(iii) Section 34(2)(h) provides for the making of regulations in respect of “the construction and conduct of shooting galleries and ranges”. However the administrative power to impose conditions on a range approval is unconstrained by this unexercised delegated legislative power. There is nothing in the terms or structure of the Act which requires regulations to be made under s 34(2)(h) before conditions can be imposed on a range approval. The principle of statutory construction, that a general power cannot be used to do that which is the subject of a specific power, is not engaged by the “limitation” on the s 34 power to the effect that regulations concerning the conduct of ranges can only be made by the governor ([44]-[47]).
Read the decision on the eCourts Portal of Western Australia website.
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| | Decisions of Interest Bulletin
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| | Polsen v Harrison [2021] NSWCA 23
COURTS AND JUDGES – bias – application for recusal – application declined – judge commented on role of plaintiff’s expert at conclave – comments made during preliminary discussion as to amended pleading – whether a fair-minded lay observer might think judge might have pre-judged credibility of witness
APPEALS – jurisdiction – appeal from “judgment or order” – refusal of a recusal application – application for disqualification made orally without notice of motion – whether refusal was a “judgment or order
WORDS AND PHRASES — “judgment or order” – “fair-minded lay observer”
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| Lacey (a pseudonym) v Attorney General for New South Wales [2021] NSWCA 27
COURTS – jurisdiction – criminal jurisdiction of Children’s Court – where young person sought to have charges heard by a female magistrate and to have males excluded from court for certain evidence and from viewing that evidence – powers of the Children’s Court to deal with criminal charges against a young person
APPEALS – appeal from refusal by Children’s Court of application to have proceedings heard by a female magistrate – whether amenable to appeal to the Supreme Court under the Crimes (Appeal and Review) Act 2001 (NSW) |
| In the Matter of Richards Contracting Co Management Pty Ltd [2021] NSWCA 34
CIVIL PROCEDURE – parties – proper party – whether the Authority of the Insurers’ Guarantee Fund a proper party to the proceedings
STATUTORY INTERPRETATION – amendment and repeal – references to repealed statute – deregistered company – where legislation providing power to reinstate company repealed – Companies (New South Wales) Code (NSW), s 459(6) – whether court has power to reinstate company
STATUTORY INTERPRETATION – amendment and repeal – references to repealed statute – Corporations (New South Wales) Act 1990 (NSW), s 85 – whether section of its own force can render applicable repealed co-operative scheme law – where section is not a deeming provision
STATUTORY INTERPRETATION – amendment and repeal – references to repealed statute – accrued statutory rights – Interpretation Act 1987 (NSW), s 30(1)(c) – nature of the rights – Companies (New South Wales) Code 1981 (NSW), s 459(6) – right to seek reinstatement – more than mere locus standi – where person aggrieved – where interests affected by the exercise of the right
STATUTORY INTERPRETATION – literal meaning – natural and ordinary meaning – Workers Compensation Act 1987 (NSW), s 236 – entitlement to payment
WORKERS COMPENSATION – insurance – Insurers’ Guarantee Fund – liability – Workers Compensation Act 1987 (NSW), s 236(2) – whether plaintiff entitled to proceed directly against the Authority – Workers’ Compensation Act 1926 (NSW), s 18(3) – precondition to liability |
| Agha v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29
EQUITY — Breach of confidence — Concurrent confidentiality obligation in contract
EQUITY — Breach of confidence — Necessary quality of confidence — Employment
EQUITY — Breach of confidence — Necessary quality of confidence — Material in public domain
COMMERCE — Restraint of trade — Particular cases — Protection of business connections
COMMERCE — Restraint of trade — Particular cases — Protection of staff connections
COMMERCE — Restraint of trade — Validity and reasonableness |
| Leyonhjelm v Hanson-Young [2021] FCAFC 22
CONSTITUTIONAL LAW – whether s 16 Parliamentary Privileges Act 1987 (Cth) or Art 9 Bill of Rights 1688 (UK) precludes court hearing evidence or determining whether particular words were spoken in proceedings in Parliament – where dispute about words said by member in Chamber in course of proceedings in Parliament – whether lawful for court to take evidence of member of Parliament for purpose of deciding whether or what words were spoken in proceedings in Parliament – whether s 16 or Art 9 precludes court determining as a fact whether and what words spoken in proceedings in Parliament
DEFAMATION – qualified privilege – whether statement outside Parliament relating to words spoken in proceedings in Parliament made on occasion of qualified privilege pursuant to s 30 Defamation Act 2005 (NSW) or the implied constitutional freedom of communication on government political matters – whether reasonable for publisher not to check own recollection of words spoken in debate before publishing matter complained of – where publisher politician and not professional journalist or commercial news media publisher
DEFAMATION – malice – whether publisher actuated by malice in publishing matters complained of pursuant to s 30(4) Defamation Act 2005 (NSW) – whether publisher intended to shame political opponent by gratuitous attack going beyond what reasonably necessary to express publisher’s views |
| Folbigg v Attorney General of New South Wales [2021] NSWCA 44
ADMINISTRATIVE LAW – judicial review – inquiry into criminal convictions – challenge to opinion that no reasonable doubt attended the convictions – whether opinion arbitrary, capricious or irrational – whether relevant material disregarded
ADMINISTRATIVE LAW – procedural fairness – improperly rejecting evidence – test of relevance for purposes of inquiry – failure to consider submissions – failure to consider good character evidence – failing to reopen inquiry
CRIMINAL LAW – post-appeal review – petition to Governor – doubt or question as to person’s guilt – judicial officer appointed to conduct inquiry – legal test to be applied by judicial officer – “reasonable doubt as to guilt of convicted person” – Crimes (Appeal and Review) Act 2001 (NSW), s 82(2)(a)
JUDICIAL REVIEW – justiciability – challenge to opinion of judicial officer holding inquiry under Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 – whether exercise of prerogative of mercy – whether decisions of intermediate courts of appeal should be followed – whether procedure under Criminal Code (Qld), s 672A, distinguishable |
| Qantas Airways Ltd v Rohrlach [2021] NSWCA 48
CONTRACT – contractual construction – proper scope of jurisdiction agreement in employment contract – where jurisdiction clause elliptical as to its scope – where multiple agreements – where jurisdiction clause only contained in one agreement – whether jurisdiction clause in one agreement applied to claim in respect of alleged breach of post-employment restraints contained in a related agreement.
EMPLOYMENT – restraints of trade – where senior executive employed pursuant to an Employment Agreement containing post-employment restraints of trade and an exclusive jurisdiction clause for courts of Singapore and a Singapore choice of law clause – where executive posted to Japan pursuant to a further contract but with his original contract continuing in effect – where executive also subject to a deed poll containing further post-employment restraints and governed by Japanese law – where employer sued to enforce only restraints contained in deed poll – whether proceedings caught by exclusive jurisdiction clause contained in original Employment Agreement – whether proceedings in New South Wales should be stayed.
EQUITY – Injunctions – anti-anti-suit injunction – anti-suit injunction.
PRIVATE INTERNATIONAL LAW – anti-anti-suit injunction – exclusive jurisdiction agreement – proper construction of scope of jurisdiction agreement – principles applicable to construction of jurisdiction agreements – relationship between jurisdiction agreement and choice of law clauses
PRIVATE INTERNATIONAL LAW – concurrent proceedings in Singapore and New South Wales – whether New South Wales proceedings in relation to post employment restraints in a Deed Poll should be stayed by reason of an exclusive jurisdiction clause in a separate Employment Agreement. |
| Mangoola Coal Operations Pty Limited v Muswellbrook Shire Council [2021] NSWCA 46
LOCAL GOVERNMENT – powers, functions and duties – rates and charges – categorisation of land for rating purposes – re-categorisation by Council of farmland to mining land – relevance of impact of ongoing drought on cattle grazing – hiatus in activity on land different to abandonment – activity in rating years required to be considered in its context including what occurred previously on the land and what intended to occur after
LOCAL GOVERNMENT – powers, functions and duties – rates and charges – categorisation of land for rating purposes – easement burdening rateable land for benefit of adjacent mine – very small land area subject to easement and cattle grazing rights interrupted only to “trifling extent” – limited significance of easement to determination of dominant use of land
LOCAL GOVERNMENT – powers, functions and duties – rates and charges – categorisation of land for rating purposes – relevance of source of requirement to use land for a particular purpose – reason for existence relevant but not determinative – use of land as Aboriginal Cultural Heritage Offset and Habitat Enhancement Offset areas the antithesis of mining – offset areas not used “for a coal mine” under s 517 Local Government Act – consideration of Peabody Pastoral Holdings 211 LGERA 337 |
| AMA Group Limited v ASSK Investments Pty Limited [2021] NSWCA 45
CONTRACT – contractual construction – whether promise in Binding Heads of Agreement (HOA) to enter into Business Sale Agreements was subject to a condition precedent, namely the approval of the Purchaser’s Board – whether consideration for HOA illusory – whether condition precedent permitted Purchaser’s Board to withhold approval capriciously – whether primary judge’s construction accorded with commercial common sense – whether primary judge erred in ordering specific performance of HOA. |
| | 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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