NCAT Legal Bulletin Issue 3 of 2023
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 High Court of Australia, the Court of Appeal of New South Wales, the Supreme Court of New South Wales, and the Supreme Court of Victoria published in May and June 2023
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15: A majority of the High Court considered whether, where an application for recusal is made to a judge sitting in a multi-member court, the individual judge or the Court as constituted should determine the application. An actuality or apprehension of bias will deprive a court of its jurisdiction, and so it is the “first duty” of a court to satisfy itself of its jurisdiction before proceeding with the matter. The majority (Gordon J, Edelman and Steward JJ agreeing) held that the preferable course is for the individual judge to first decide whether they will recuse themselves. Only then, if the application is maintained or the other judges consider there are matters which may give rise to a potential for apprehended bias, should the court as constituted determine the issue. Secretary, Department of Education v Derikuca [2023] NSWCA 94: The Court of Appeal held that the primary judge had erred in raising the possibility that a party could make a claim in the tort of inducing breach of contract in circumstances where the contract was not before the Court and the final hearing had concluded. There is a difference between resolving the controversy brought before the Court and fomenting further disputes. The primary judge had gone beyond the role of the Court in assisting self-represented litigants. Mills v Walsh (Costs) [2023] NSWCA 97: The Court of Appeal found that where one of two appellants discontinued proceedings immediately prior to the commencement of the hearing, that appellant was jointly and severally liable to the respondent for the costs of the appeal until and including the date of discontinuance. What followed was that the other appellant was entitled to a contribution for costs of the appeal until and including the date of discontinuance. Owners SP 92450 v JKN Para 1 Pty Limited [2023] NSWCA 114: The Court of Appeal awarded reinstatement damages for breach of the statutory warranty in s 18B(1)(c) of the Home Building Act 1989 (NSW) where there was non-compliance with the Building Code of Australia (BCA) requirements regarding fire safety. The respondents had not established an alternative solution for the BCA requirements that would displace the prima facie rule that the measure of damages for breach of contract where a building is constructed that does not comply with the contract, plans and specifications, is the cost of reinstatement. Walker Corporation Pty Ltd v The Owners – Strata Plan No 61618 [2023] NSWCA 125: The Court of Appeal held that a clause in a strata management statement which effectively operated to preclude the right of an owners corporation to appoint a strata managing agent of its choosing was invalid on the basis that it was inconsistent with the Strata Schemes Management Act 2015 (NSW), consequently invalid under s 105(1) of the Strata Schemes Development Act 2015 (NSW) (SSDA) on the basis of that inconsistency, and in any event not authorised by the SSDA. Australian Rail Tram and Bus Industry Union v Aurizon Operations Ltd [2023] NSWSC 484: The Supreme Court rejected a proposed construction of a provision under the Rail Safety National Law 2012 (NSW) that relied on matters extraneous to and incompatible with the words of the text. In light of the proper approach to statutory construction, that starts and ends with consideration of the text of the statute, the scope of consultation was confined. Aquamore Fund 2 Pty Ltd v Church Point Apartments Pty Ltd (receivers and managers appointed) [2023] NSWSC 511: The Supreme Court found that a party had waived his right to seek recusal by electing to argue the merits of the case in circumstances where he was imputed with his solicitor’s actual knowledge of the alleged ground for apprehension of bias. In any event, the mere fact that the judge had decided a matter some four years earlier which mentioned his name 136 times – but where the issues, parties and witnesses did not overlap – was not a basis for an apprehension of bias. Whitehead v Anglicare Community Services [2023] NSWSC 614: The Supreme Court dismissed an appeal from an Appeal Panel decision, finding that the Appeal Panel had correctly approached its task of interpreting a term of a settlement agreement as one of the ordinary process of legal construction, rather than by reference to comments made by the Tribunal Member when making orders effecting that agreement. Zhang v Oakmont Properties Pty Ltd [2023] VSC 248: The Supreme Court of Victoria upheld an appeal from VCAT, holding that VCAT has the power to join a non-party to proceedings for the sole purpose of making a costs order against that party, in circumstances where the criteria set out in Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 192-193 have been met.
| | | QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15 17 May 2023 - Kiefel CJ, Gageler, Gordon, Edelman, Steward, Gleeson and Jagot JJ
In sum: A majority of the High Court (Gleeson J refraining) considered whether an application to disqualify a judge in a multi-member court from hearing and determining a matter should be determined by the challenged judge alone or by all members of the court as constituted. Across separate judgments, the majority noted that it is the “first duty” of a court as constituted to satisfy itself of its jurisdiction. An actuality or apprehension of bias is inherently jurisdictional and even on the part of one judge will deprive the multi-member court of its jurisdiction. Gordon J, with Edelman and Steward JJ agreeing, set out the “preferable, if not the proper, course”. First, the judge in question should have the opportunity to determine whether they will recuse themselves. However, the multi-member court as constituted must be satisfied it has jurisdiction – if the objection is maintained or there are matters the other judges consider may give rise to a real potential for apprehended bias, the court as constituted must determine the issue. Edelman J added that if a majority of the court concludes that the member should be recused, then the court is without jurisdiction. Jagot J held that the issue of bias is to be determined by the judge in question, and that determination cannot be gainsaid by other judges exercising co-ordinate jurisdiction. Kiefel and Gageler JJ found that the court as constituted ought to have considered and determined the issue, rather than the individual judge alone; there is no reason why the judgment of the majority should not prevail in the event of a disagreement.
Catchwords: COURTS AND JUDGES – Bias – Reasonable apprehension of bias – Where appellant appealed to Full Court of Federal Court of Australia from decision dismissing application for judicial review of non-revocation of decision to cancel his visa on character grounds – Where appellant sought recusal of judge sitting as member of Full Court constituted to hear appeal – Where reasonable apprehension of bias on the part of challenged judge said to arise from judge's appearance, in former capacity as Commonwealth Director of Public Prosecutions, as counsel for Crown in opposition to appellant's appeal against conviction – Where appellant's conviction causally related to cancellation of visa and non-revocation decision subject to challenge in Full Court – Whether fair-minded lay observer might reasonably apprehend that judge might not be impartial – Whether reasonable apprehension of bias on the part of challenged judge vitiated Full Court's jurisdiction.
COURTS AND JUDGES – Practice and procedure – Whether application to disqualify judge for bias should be determined in the first instance by challenged judge alone or by all members of court as constituted.
Held (allowing the appeal):
(i) Link to the High Court’s case summary is here.
| Court of Appeal of New South Wales | Secretary, Department of Education v Derikuca [2023] NSWCA 94 12 May 2023 - Kirk JA, Simpson and Basten AJJA
In sum: There is a difference in resolving the controversy brought before the Court and fomenting further disputes. Section 63 of the Supreme Court Act 1970 (NSW) (SCA) empowers the Court to grant relief in order to resolve the issues in controversy, but does not require nor permit the Court to suggest to a party that further possible claims could be brought, different to anything put into issue, in the absence of the necessary evidence being before the Court and after the final hearing has concluded. Such suggestion exceeds the role of the Court in assisting self-represented litigants.
Facts: The respondent was employed as a cleaner by a company which held a cleaning contract with a statutory body corporate. The respondent’s employment was terminated by the company and so the respondent brought proceedings against the appellant (Department) seeking judicial review of two decisions made by persons within the Department and claiming “compensation”, referring in various filed documents to negligence and breach of statutory duty. The respondent represented himself before the primary judge. The primary judge resolved the judicial review challenges in favour of the respondent, but did not resolve any claim for compensation or damages. Despite neither party raising the issue and the contract not being in evidence, the primary judge raised the possibility that the respondent could make a claim in the tort of inducing breach of contract.
Held (allowing the appeal):
(i) Whilst s 63 of the SCA empowers the Court to grant relief in order to resolve the issues in controversy, there is a difference between resolving the controversy brought before the Court and fomenting further disputes. What was brought before the Court in the present case was not a claim in tort: the documents filed by the respondent made no claim for damages in tort and his statement of claim did not plead the material facts for any claim in tort. Any claim made for inducing breach of contract was not raised by the respondent, but by the primary judge, in circumstances where the final hearing had been completed and the contract the subject of the potential claim was not in evidence. The new claim raised was not part of what was in controversy before the primary judge. What was in substance required by the further orders of the primary judge was a reopening of the case with leave to plead a new claim and to file and serve new evidence. That exceeded the proper bounds of resolving the controversy and went beyond the power of s 63 of the SCA (at [93], [34], [88], [100], [89]).
(ii) The manner in which the primary judge raised possible new claims after the conclusion of the final hearing went beyond the assistance the Court could properly provide to a self-represented litigant. The Court cited Beazely JA in Hamod v New South Wales [2011] NSWCA 375 at [309]-[316], particularly that whilst the Court may take steps to ensure a self-represented litigant has sufficient information about the Court’s practice and procedure, it is not a function of the Court to give judicial advice as to how rights should be exercised or to conduct the case on behalf of the self-represented litigant. It was an error of law to consider that s 63 of the SCA required or permitted the Court to suggest further possible claims of a different kind to anything put into issue could be pursued by a party, particularly after the conclusion of a final hearing directed to all matters in dispute (at [101], [102]). | Mills v Walsh (Costs) [2023] NSWCA 97 16 May 2023 - Bell CJ, White and Brereton JJA
In sum: In authorising the institution of the appeal by her conduct, the second respondent (originally the first appellant) was a party to the appeal from the outset. The first respondent was entitled to treat her as such until the date of her discontinuance. As a result, the second respondent was jointly and severally liable for the first respondent’s costs until discontinuance. What follows is that the remaining appellant was entitled to a contribution from the second respondent for the costs of the appeal until and including the date of discontinuance.
Facts: In late 2021 or early 2022, the second respondent (Ms Zhang) authorised the filing of a Notice of Intention to Appeal. On 10 March 2022, Ms Zhang received a draft Notice of Appeal and on 22 March 2022, a fee proposal. She did not respond to either email. Her solicitors (CG) proceeded to file the Notice of Appeal. On 30 May 2022 (and again on 4 June 2022), Ms Zhang informed CG that she did not wish to pursue the appeal but left open that she would if the appellant (Mr Mills) paid the costs of the appeal. On 9 June 2022, CG informed Ms Zhang that Mr Mills did not agree to that proposal. On 14 June 2022, Ms Zhang emailed CG “Please do not give me further update as I’m not going to participate in this appeals [sic] due to the disagreement on legal cost arrangement”. On 1 August 2022, CG provided advice to Mr Mills and Ms Zhang, including as to costs if either or both decided not to proceed, and sought instructions as a matter of urgency. Ms Zhang responded on 2 September 2022 making it clear she did not wish to proceed. On 5 September 2022, Ms Zhang’s new solicitor informed CG that she was not proceeding and sought leave to discontinue. On 6 September 2022, at the outset of the hearing, the Court granted leave for Ms Zhang to discontinue, and joined her as the second respondent. The appeal was dismissed. Mr Mills sought an order that Ms Zhang be liable jointly and severally for the costs of the first respondent up to and including the date of discontinuance.
Held (ordering the second respondent pay the first respondent’s costs of the appeal until and including the date of discontinuance):
(i) Ms Zhang’s conduct authorised the institution of the appeal by CG and so she was a party from the outset of the appeal. Brereton JA found that Ms Zhang did not give clear and unequivocal instructions to discontinue until 2 September 2022; White JA found that she had given definite instructions she did not wish to proceed with the appeal on 14 June 2022. It did not matter when Ms Zhang informed her solicitors, the relevant date was when it was conveyed to the first respondent (Mr Walsh). Mr Walsh was entitled to regard Ms Zhang as an active appellant until the date of discontinuance and she was liable to him until she discontinued. Mr Mills’ entitlement to contribution from Ms Zhang flowed from her liability to Mr Walsh. Any remedy Ms Zhang may have would be against CG (at [4], [25], [16], [26], [27]). | Owners SP 92450 v JKN Para 1 Pty Limited [2023] NSWCA 114 26 May 2023 - Gleeson, White and Brereton JJA
In sum: Non-compliance with the Building Code of Australia (BCA) requirements regarding fire safety resulted in a breach of the statutory warranty provided for by s 18B(1)(c) of the Home Building Act 1989 (NSW) (HBA). Once the claimant has established loss, the onus is on the defendant to displace the prima facie rule that the measure of damages is the cost of reinstatement. Where the primary judge made unchallenged findings of fact that the respondents had not established an alternative solution that would satisfy the BCA requirements, that onus was not discharged.
Facts: Pursuant to an agreement between the first respondent (the developer and former owner) and the second respondent (Toplace), Toplace designed and constructed a 28-storey building comprised largely of residential lots. Toplace used aluminium composite panels as the external cladding for the building. On 18 May 2016, Fire & Rescue NSW provided a report which identified concerns that the cladding was not adequately fire resistant and recommended it be rectified. The final occupation certificate was issued on 10 March 2017. In 2018, the appellant (OC) obtained two reports relating to the combustibility of the cladding. The OC commenced proceedings against the respondents claiming reinstatement damages for breach of statutory warranties arising from s 18B(1) of the HBA on the basis that the cladding did not comply with the BCA requirements (s 18B(1)(c)), that the cladding was not good and suitable material because it was combustible (s 18B(1)(b)), and that the dwellings were not reasonably fit for occupation (s 18B(1)(e)). The primary judge found that the OC had not established any breach of the statutory warranties; the OC appealed.
Held (allowing the appeal):
(i) The respondents properly conceded on appeal that the statutory warranty in s 18B(1)(c) had been breached. The cladding did not comply with the deemed-to-satisfy provisions of the BCA and no alternative solution had been prepared prior to the issue of the construction certificate – the work was not done in compliance with the relevant provisions (at [65], [36], [64]).
(ii) The Court acknowledged that, consistent with the principle of damages that a party who sustains loss as a result of breach of contract should be placed in the position as if the contract had been performed, certain types of cases have rules for the bases of assessing damages. In the present case, where the OC was entitled to have the building constructed in accordance with the contract, plans and specifications, the prima facie measure of damages is the cost of reinstatement, not the diminution in value of the defective building. The qualification to this rule was set out in Bellgrove v Eldridge (1954) 90 CLR 613 at 618: the work must be necessary and a reasonable course to adopt; the test of unreasonableness is satisfied only by “fairly exceptional circumstances” (Bellgrove at 617) (at [69]-[70]).
(iii) Though the burden of proof for establishing loss lay with the OC, the respondents had the onus of displacing the prima facie rule for assessing damages as the cost of reinstatement. That onus is at least an evidentiary one. The test that unreasonableness will only be satisfied by fairly exceptional circumstances implies that there is an onus on a defendant to displace a claim for reinstatement costs by establishing that it is unreasonable. The primary judge erred in finding that the OC had the onus of establishing that an alternative solution could not have been performed – the OC was not required to go further than establishing that the respondents did not comply with the BCA. On appeal, the respondents did not challenge the primary judge’s findings that the evidence adduced by the respondents did not establish an alternative solution that would satisfy the BCA requirements either at the time or now. Their evidentiary onus was not discharged (at [71], [80], [72], [79], [81], [82]).
(iv) The respondents sought to argue that the breach of s 18B(1)(c) was not substantive and was “purely formal”. However, compliance with the BCA does not distinguish between substantive and purely formal breaches. Where the finding that the respondents had not established the availability of an alternative solution was not challenged, the respondents’ failure to comply with the BCA was not a technical breach. It was a failure to comply with the only methods of meeting the relevant BCA requirements; the respondents had provided the OC with a building that did not meet the minimum standards for public safety, which they were obliged to provide. The Court found that there was a real risk of damage and harm for the safety of occupants occurring in the future and it was not for the OC to carry those risks. The Court upheld the OC’s claim for damages for reinstatement, being the cost of removal and replacement of the cladding (at [83], [106], [82], [107], [109], [110]). | Walker Corporation Pty Ltd v The Owners – Strata Plan No 61618 [2023] NSWCA 125 5 June 2023 - Leeming, Mitchelmore and Kirk JJA
In sum: A clause in a strata management statement which required owners corporations to appoint the same strata managing agent as the building management committee was found to be invalid as it was inconsistent with the Strata Schemes Management Act 2015 (NSW) (SSMA) and consequently invalid under s 105(1) of the Strata Schemes Development Act 2015 (NSW) (SSDA) on the basis of that inconsistency. It was also invalid on the basis that it was not authorised by the provisions of the SSDA. The SSMA contemplates that it is the owners corporation that decides questions about the appointment, identity, delegation of powers and reporting of a strata managing agent, and reveals an intention for the owners corporation to have primary responsibility for the management of a strata scheme, with an obligation to exercise its powers (including delegation) for the benefit of lot owners. The clause effectively operated to preclude the right of an owners corporation to appoint and/or terminate a strata managing agent of its choosing.
Catchwords: LAND LAW — Strata title — Strata managing agent – where three owner corporations of Finger Wharf development at Woolloomooloo passed resolutions terminating appointment of strata managing agent and appointing new one – where strata managing agent is different to managing agent appointed for Wharf as a whole by building management committee as a result – where clause of strata management statement (“SMS”) required owners’ corporations to “appoint and retain” the same strata managing agent as the building management committee appoints as strata manager for Wharf as a whole – whether clause of SMS inconsistent with Strata Schemes Management Act 2015 (NSW), not authorised by Strata Schemes Development Act 2015 (NSW) or uncertain
Held (granting leave to appeal; dismissing the appeal):
(i) Link to the Court of Appeal’s case summary is here. | Supreme Court of New South Wales | Australian Rail Tram and Bus Industry Union v Aurizon Operations Ltd [2023] NSWSC 484 9 May 2023 - Walton J
In sum: A proposed construction of a provision could not be supported in light of the preceding textual and contextual matters (including words of confinement within the provision and broader language on the same matter elsewhere in the statute); Parliament’s intention to distinguish between a union’s entitlement to represent, as in the Fair Work Act 2009 (Cth) (FWA), and actual “representation” of persons; the significantly removed context of the legal principles of trade unions relied upon; and the reliance on matters extraneous to and incompatible with the words of the statute.
Facts: On 11 February 2022, the second defendant (Regulator) made (through her delegate Mr Doggett (the delegate)) a decision to vary the accreditation of the first defendant (Aurizon) under the Rail Safety National Law 2012 (NSW) (National Law) which would permit Aurizon to utilise crew cars in its national freight operations. The crew which would operate these cars were to be supplied through a labour hire agreement with Trojan Recruitment Group Pty Ltd. Aurizon consulted with prospective train drivers, being 10 Trojan Rail employees. In early 2022, the plaintiff (Union) learnt about the proposal and subsequently indicated its concern that it had not been consulted. The delegate, in making his decision to vary the accreditation, found that the Union had not been consulted because none of the affected workers were members of the Union. The Union sought relief in the nature of certiorari quashing the Regulator’s decision.
Held (granting relief in the nature of certiorari):
(i) The Union’s principal ground was that s 99(3)(a) of the National Law, on its proper construction, required consultation with the Union. Particularly, the Union argued that the word “representing” in s 99(3)(a)(iii) should be properly construed as meaning “being entitled to speak or act on behalf of”, with the result that unions as stakeholders were consulted if they were able to represent the industrial interests of persons set out in s 99(3)(a)(i), regardless of whether the Union had members amongst those persons. The Union argued that this construction was in the first instance available from the definition of “represent” in the Oxford English Dictionary, but the Court noted the limited utility of referencing dictionary definitions in the process of statutory construction. The Court also considered it was uncontroversial that the reference in s 99(3)(a)(iii) to “the persons referred to” in s 99(3)(a)(i) was one of confinement in respect of the scope of consultation required. To avoid compromising on Parliament’s intention, that confinement must be given some effect in determining the scope of the word “representing”. This could be compared to the only other provision in the National Law that enshrines consultation (s 249(2)(c)) and provides for consultation with “any relevant union” (at [97], [101], [112]-[113], [122]-[125], [142], [121], [126]).
(ii) The Union also relied on the “legal understanding of trade unions” for consideration of the context and purpose of the provision. The Court found that the cases relied on by the Union provided limited assistance as they were significantly removed from s 99 of the National Law; the attempt to compare the provision with the words used in s 540(6) of the FWA in fact indicated that Parliament had declined to give effect to the principles relied upon by the Union. Indeed, “union” is a defined term in the National Law with reference to the FWA and so Parliament must have been aware of the distinction between a union’s “entitlement to represent” a group and its actual “representation” of persons (at [114]-[119], [141]).
(iii) The danger in the Union’s construction of the provision was that it depended largely on matters extraneous to and incompatible with the words of the statute; it was not consistent with the principle that statutory construction must start and end with consideration of the text of the statute. None of the explanatory material to the National Law expressly addressed consultation requirements, instead paraphrasing the objects of the National Law provided for in s 3. In light of the National Law’s interpretation provisions as set out in Sch 2, cl 7, it is the interpretation that best achieves the purpose and objects of the National Law that is to be preferred. The Union sought to argue that a broad construction of the provision would best achieve the object of promoting “effective involvement of relevant stakeholders”, and in the absence of a definition of “relevant stakeholders”, the Union would be such a stakeholder. The Court held that any status as a “relevant stakeholder” would not entitle the Union to an unfettered right to consultation in circumstances where the scope and nature of consultation were fixed by the National Law. Any difficulties raised by the Union as to Aurizon’s construction of the provision did not rise to the level of unreasonableness or absurdity and could not displace the proper construction of the provision. The delegate did not fall into jurisdictional error by misconstruing the consultation requirement as limited to consultation with unions who have members who are persons referred to in s 99(3)(a)(i) (at [143], [104], [146], [147], [158]-[159]).
(iv) The Court found that the delegate did fall into jurisdictional error by misconstruing s 99(3)(a)(i) by determining that persons working on or at Aurizon’s railway premises or on its rolling stock were “not likely to be affected by a variation”; those persons were clearly required to be consulted. The mandatory language of the provision is a significant indicator that Parliament did not intend to vest the Regulator or her delegates with jurisdiction to determine the scope of the consultation requirement. It was not possible for the delegate to be satisfied that the consultation requirements had been met in the circumstances; having asked himself a wrong question, the delegate exceed authority and fell into jurisdictional error. The Court upheld the ground and granted relief in the nature of certiorari (at [173]-[175], [179], [188]-[192], [216]). | Aquamore Fund 2 Pty Ltd v Church Point Apartments Pty Ltd (receivers and managers appointed) [2023] NSWSC 511 16 May 2023 - Rees J
In sum: A party will be imputed with their solicitor’s actual knowledge of a ground of apprehended bias and may waive their right to object by electing to engage with the merits of the dispute where imputed with that knowledge.
Facts: On 29 March 2021, the plaintiff (lender) commenced proceedings suing the first defendant (borrower) and each of the guarantors (including the second defendant, Mr Walker, and a Mr Snell) for moneys owning under a Facility Agreement. On 21 April 2021, a Commercial List Response was filed by Mr Beazley, solicitor, for the second, fourth and fifth defendants. In June 2021, Mrs Snell (the executrix of the estate of Mr Snell) filed a cross-claim against Mr Beazley for breach of duty of care and fiduciary duties, alleging Mr Beazley had acted in the relevant transaction in a position of a conflict of interest. Despite being a cross-defendant, Mr Beazley continued to act for the second, fourth and fifth defendants and remained on the record as their solicitor. On 11 November 2022, motions for discovery were heard and Mrs Snell’s instructing solicitor and counsel raised that Rees J had previously handed down a judgment (In the matter of Scientific Management Associates Pty Ltd [2019] NSWSC 1643 (Scientific Management)) in which credit findings were made about Mr Snell. In April 2023, the proceedings were resolved as between the lender, Mrs Snell and Mr Beazley. On 19 April 2023, the parties were advised that the matter had been listed before Rees J. At the hearing, Mr Walker appeared in person. After judgment was reserved, Mr Walker brought an application for recusal for apprehended bias by reason of Rees J’s judgment Scientific Management.
Held (dismissing the recusal application):
(i) The lender argued that Mr Walker had waived his right to object when he elected to engage with the merits of the dispute in circumstances where he was imputed with his solicitor’s knowledge that Rees J had decided the Scientific Management proceedings. The Court acknowledged that an objection on the ground of bias can be waived, and that a legal representative’s knowledge of a ground of apprehended bias can be imputed to their client for the purpose of determining waiver. Whilst Mr Beazley did not appear at the hearing, he had acted for Mr Walker throughout the proceedings and continued to do so, including assisting Mr Walker by going through the judgment in Scientific Management with him, witnessing the affidavit in support of the recusal application and assisting in the preparation of submissions on the application. He remained Mr Walker’s solicitor on record. Mr Beazley’s knowledge could be imputed to Mr Walker for the purpose of determining waiver (at [39], [41]-[42], [45], [25]).
(ii) The Court found that Mr Beazley had actual knowledge of the alleged ground of apprehended bias. It was in evidence that Mr Beazley had provided Mr Walker with a copy of Scientific Management two days after it was handed down in 2019, with an instruction to “Read this”; Mr Beazley was sufficiently aware of the contents of the judgment to instruct Mr Walker to read it. Further, Rees J’s tipstaff had contacted the parties more than two weeks before the final hearing to advise that the matter had been listed before Rees J, in circumstances where it was a matter of public record that Rees J was the judge in Scientific Management. The Court also considered whether Mr Beazley’s constructive knowledge could be imputed to Mr Walker. As a cross-defendant represented by counsel at the hearing for the motions of discovery, counsel for Mr Beazley’s knowledge was imputed to Mr Beazley, but the Court held that that imputed knowledge should not be imputed further to Mr Walker. There was insufficient evidence to find that Mr Beazley had actual knowledge of what was raised at the hearing for the motions of discovery. However, in the circumstances, imputed with Mr Beazley’s actual knowledge, Mr Walker had waived his right to seek recusal by arguing the merits of the case (at [47], [51], [48]-[50], [52]).
(iii) The Court also considered whether the judgment in Scientific Management provided a basis for an apprehension of bias. Mr Walker argued that whilst he was not a party to and did not give evidence in the Scientific Management proceedings, his name was mentioned 136 times in the judgment. Mr Walker submitted that Rees J had formed an unfavourable view of him in the judgment, with “never a kind word” said about him. The Court noted that Scientific Management involved an oppression suit brought by shareholders against Mr Snell and others, and it was necessary to refer to various companies, transactions, people and businesses, including transactions between Mr Snell and Mr Walker. The number of times Mr Walker’s name was mentioned was not informative. Relevantly, the focus and findings in Scientific Management were in respect of Mr Snell, not Mr Walker; the propriety of Mr Walker’s conduct was not in issue in those proceedings. There was no overlap of issues, parties or witnesses. Considering a fair-minded lay observer is assumed to know of a judge’s ability to consider an issue afresh, a properly informed, fair-minded lay observer could not reasonably form a view that Rees J would not bring an impartial and unprejudiced mind (at [53], [64], [65], [70]-[71]). | Singh v Sharma; Singh v Energy Services Management Pty Ltd t/as Glow Power; Singh v Harrowell; Singh v Cavanagh; Singh v Tidball; Singh v Charles; Singh v Street [2023] NSWSC 551 18 May 2023 - Beech-Jones CJ at CL
In sum: In circumstances where not steps were taken by the only remaining plaintiff to formulate a pleading, a number of the proceedings were dismissed. In other proceedings, claims against several defendants were dismissed on the basis of judicial immunity. In further proceedings, where the pleadings were otherwise unintelligible and appeared to be vexatious, the Court found it was not appropriate to grant leave to re-plead and dismissed the proceedings. In the remaining proceeding, the matter was relisted for the remaining parties to show cause why the proceedings should not be dismissed for want of prosecution.
Catchwords: PRACTICE AND PROCEDURE – summary dismissal – no question of principle | GR v Secretary, Department of Communities and Justice; GR v Public Guardian [2023] NSWSC 525 19 May 2023 - Hammerschlag CJ in Eq
In sum: After an Appeal Panel dismissed her appeal, the plaintiff commenced proceedings in the Equity Division seeking judicial review of the Tribunal at first instance’s orders and subsequently also commenced proceedings in the Common Law Division making an array of claims. Both proceedings were summarily dismissed on the basis that the proceedings amounted to an impermissible circumvention of the plaintiff’s rights of appeal and were an abuse of process.
Catchwords: PRACTICE AND PROCEDURE — application to summarily dismiss proceedings where plaintiff is seeking relief from appeal proceedings in the Civil and Administrative Tribunal of New South Wales (the Tribunal) — where plaintiff has not availed herself of available rights of appeal from the Tribunal — where the plaintiff has commenced two sets of proceedings in this Court, seeking, in effect, the same relief, making serious allegations, including of physical and chemical abuse, forced labour, force feeding and mechanical restraint — HELD — proceedings should be dismissed as an abuse of process | Whitehead v Anglicare Community Services [2023] NSWSC 614 9 June 2023 - Campbell J
In sum: A term of a settlement agreement that the tenant could remain in the premises “indefinitely” did not and could not oust the operation of the Residential Tenancies Act 2010 (NSW) (RTA) as it governs termination of tenancies. The proper approach to interpreting the term was an ordinary one of legal construction.
Facts: The plaintiff (tenant) had resided in premises owned by the defendant (lessor) since 22 June 2011. A previous dispute under the tenancy was settled by agreement in the Tribunal (constituted by General Member Ringrose) which terminated the former rental agreement under the Retirement Villages Act 1999 (NSW) and a new lease was entered into under the RTA with effect from 15 November 2018. One of the terms of the agreement between the tenant and the lessor provided “I [the tenant] will be allowed to remain in my premises indefinitely provided I comply with the terms of the agreement.” On 7 October 2021, the lessor provided 90 days’ notice under s 85 of the RTA for a “no grounds” termination. Before the Tribunal (constituted by General Member De Jersey), the tenant contended that the notice should be dismissed on the ground that it was retaliatory within the meaning of s 115 of the RTA. The Tribunal found the notice was valid and made an order for termination. The Appeal Panel dismissed the tenant’s appeal.
Held (granting leave to appeal; dismissing the appeal):
(i) The tenant contended that the legal effect of the term of the agreement that he could remain in the premises “indefinitely” effectively ousted the provisions of s 85 of the RTA. The Court found that the Appeal Panel, which dealt with the argument on a contingent basis, was correct to approach the task as one of legal construction, rather than by reference to the comments made by General Member Ringrose when entering the orders effecting the settlement. The tenant’s subjective understanding of the term was based on General Member Ringrose’s lay explanation of the effect of the settlement. However, at no time did General Member Ringrose state that a notice under s 85 of the RTA would be precluded (at [16]-[18], [20], [21]).
(ii) In light of the statutory context to the prescribed standard form residential tenancy agreement, it is clear that it is the RTA which governs termination of a residential tenancy, and not the agreement. The words of the term, whilst not in contravention of or inconsistent with the standard form, are silent on termination under the RTA; the words of the term did not – and could not – oust the operation of s 85 of the RTA (at [26], [28], [32]). | AW v WW [2023] NSWSC 724 27 June 2023 - Campbell J
In sum: The Supreme Court dismissed the plaintiff’s application for leave to appeal a decision of NCAT’s Guardianship Division on grounds other than a question of law, pursuant to cl 14 of Sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW). The Court held that implicit in its determination is a consideration of whether the Court should decide to deal with the appeal by way of a new hearing. As a result, the decision is effectively a case management decision, informed by the protective purpose of the proceedings and s 4 of the Guardianship Act 1987 (NSW). Here, the defendant’s interests were best served by confining the appeal to questions of law, in circumstances where giving evidence would cause unnecessary stress.
Catchwords: GUARDIANSHIP – Guardians, committees, administrators, managers and receivers – Appeal from dismissal by NCAT of applications for the appointment of a guardian and a financial manager.
APPEALS – Appeal to Court from Guardianship Division of the NSW Civil and Administrative Tribunal – Application for leave to appeal on a ground other than a question of law dismissed - Civil and Administrative Tribunal Act 2013 NSW, Schedule 6, clause 14(1)(b). | Supreme Court of Victoria | Zhang v Oakmont Properties Pty Ltd [2023] VSC 248 12 May 2023 - Gorton J
In sum: VCAT is able to join a non-party to proceedings for the sole purpose of enabling it to make a costs order against that party. Where the criteria set out in Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 192-193 have been met, with the interests of justice as the ultimate question, then it is appropriate for VCAT to order a non-party be joined to the proceedings and to pay the costs of the successful party.
Facts: The first respondent (Oakmont) agreed to build two houses for the applicants. The second respondent (Mr Just) was the sole director of Oakmont. A dispute arose and Oakmont commenced proceedings in VCAT against the applicants. The applicants filed a counterclaim. Prior to the hearing, the applicants made a “walk away” offer, which was rejected by Oakmont. The Tribunal dismissed Oakmont’s claim and found that the applicants were entitled to damages on their counterclaim. The applicants sought indemnity costs from the date of the settlement offer and an order that Mr Just be joined to the proceedings and that he pay any unsatisfied costs liability of Oakmont. Following the Supreme Court’s dismissal of Oakmont’s appeal (in which Mr Just was added to the proceedings to pay any unsatisfied costs liability of Oakmont), the Tribunal considered the costs and joinder applications. The Tribunal ordered Oakmont pay the applicants’ costs on a standard basis and dismissed the application that Mr Just be added as a party and pay the costs in the event Oakmont did not do so, on the basis that the legislative scheme did not empower VCAT to add a non-party to proceedings for the sole purpose of making a costs order against that party, and in any event not all the criteria that would apply had been met. Oakmont went into liquidation. The applicants applied to the Supreme Court for leave to appeal the costs order and dismissal of the application relating to Mr Just.
Held (allowing the appeal):
(i) VCAT’s power to award costs is statutory and is restricted to a power to award costs against a party to a proceeding before it; Mr Just was not a party to the proceedings. Section 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) empowers the Tribunal to join a party to proceedings in a number of circumstances, including “for any other reason it is desirable that the person be joined as a party”. The Court found that s 60 of the VCAT Act is expressed in wide terms and it follows that VCAT’s power to join parties is not limited to persons against whom substantive relief is sought. The provision should not be read down to prevent VCAT from joining a party if it considers it desirable to do so for the purpose of doing justice between the parties on the issue of costs. There is nothing inherently improper in joining a party so a costs order may be made against them – the High Court acknowledged as much in Knight v FP Special Assets Ltd (1992) 174 CLR 178. In Knight, Dawson J at 198-199 observed that it would be artificial not to order costs against a non-party on the basis that they were not a party, because that party could simply be joined for the purpose of obtaining a costs order. Where a costs order is to be awarded against a non-party, that party must be brought before the court, and that can often be achieved by making the non-party a party. The non-party should be given proper notice of an application and time to respond. The Court found that the Tribunal had erred to the extent the costs and joinder applications were dismissed on the ground that VCAT had no power to make such an order (at [7], [8], [10]-[13], [14]-[16], [17]).
(ii) The Tribunal had found that the first three requirements for the making of non-party costs orders as set out in Knight at 192-193 had been met: “the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party … has an interest in the subject of the litigation.” However, the Tribunal was not satisfied that the fourth requirement, the “interests of justice”, required a costs order to be made. Important to the Tribunal’s conclusion was the fact that the applicants had brought a counterclaim, which Oakmont was required to defend. The Court noted the idea in favour of a non-party costs order: that it may be unfair for a party to be sued by an entity that would be unable to pays costs if the proceeding failed but would be entitled to costs if successful. That consideration does not apply to the party being sued, similar to the principle that security for costs cannot be obtained against a defendant (at [19]-[21]).
(iii) The Court considered that it was appropriate for the Tribunal to have had regard to the fact that Oakmont was also defending the applicants’ counterclaim. However, if determining the interests of justice required consideration of the counterclaim, it also required consideration of the “walk away” offer. From the date the offer expired, it could be said that Oakmont, controlled by Mr Just, was responsible for the continuing litigation of both claims and could not be treated as a party forced to defend a claim against it. This was in circumstances where Oakmont: had initiated the proceedings, which made the bringing of a counterclaim or set-off defence almost inevitable; did not make any settlement offer that involved it paying money to the applicants; had failed in its claim completely; and the applicants’ claim had succeeded. The Court found it was appropriate to determine the joinder and costs applications itself and found it was in the interests of justice that Mr Just be ordered to pay the applicants’ costs from the expiration of the “walk away” offer, but not prior to the offer because of the existence of the counterclaim (at [29]-[31], [39], [40]-[42]). | | 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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