| | | | | | | | NCAT Legal Bulletin Issue 4 of 2016
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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.
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| | | Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22
8 June 2016
In brief: In a joint judgment, the High Court held that the majority of the Queensland Court of Appeal had erred in overturning the primary judge’s findings of fact. The case arose from the crash of helicopter, manufactured by the appellant, in which the respondent was seriously injured. “The essential question at first instance and on appeal was whether the Maintenance Manual for the helicopter … provided an adequate inspection procedure for the detection of the defect which caused the crash” (at [1]). The primary judge had held that Manual provided adequate instructions to identify the defect and thus dismissed the respondent’s claims. This was overturned by the Queensland Court of Appeal. The High Court held in doing so, the Court of Appeal had erred and that (at [43]):
“… a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", or they are "glaringly improbable" or "contrary to compelling inferences". In this case, they were not. The judge's findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences.”
Read the decision on the High Court of Australia website.
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| Hall v Hall [2016] HCA 23
8 June 2016
In brief: The High Court, by a 4:1 majority, dismissed an appeal from a judgment of the Full Family Court which had discharged an interim maintenance order. The interim maintenance order required the respondent husband to pay approximately $11,000 per month to the appellant wife. The order had been made under s 74(1) of the Family Law Act 1975 (Cth), and “a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant” (at [8]). The threshold requirement in s 72(1) provides for a liability for spousal maintenance “if, and only if, that other party is unable to support herself or himself adequately … having regard to any relevant matter referred to in [s] 75(2)”.
The High Court held that the Full Court correctly concluded that the threshold requirement was not met. This conclusion was correct because the Full Court’s finding that the wife would have received an annual payment of $150,000 from an entity controlled by her brothers, if she had asked for it, was “well open on the evidence”.
Read the decision on the High Court of Australia website.
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| Alqudsi v The Queen [2016] HCA 24
15 June 2016
In brief: The applicant was charged on indictment with seven offences contrary to s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) and was to be trialled by jury in the Supreme Court of NSW (the Supreme Court having jurisdiction under s 68(2)(c) of the Judiciary Act 1903 (Cth)). Before the trial commenced, the applicant filed a notice of motion seeking a trial by judge order under s 132 of the Criminal Procedure Act 1986 (NSW). This notice of motion was removed to the High Court, with French CJ stating the case for consideration by the Full Court as follows:
"Are ss 132(1) to (6) of the Criminal Procedure Act 1986 (NSW) incapable of being applied to the Applicant's trial by s 68 of the Judiciary Act 1903 (Cth) because their application would be inconsistent with s 80 of the Constitution?"
Section 80 of the Constitution relevantly provides that "[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury". The High Court held (6:1, French CJ dissenting) that the answer to the stated question was “yes” and dismissed the applicant’s motion for a trial by judge order.
Read the decision on the High Court of Australia website.
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| Betts v The Queen [2016] HCA 25
15 June 2016
In brief: The NSW Court of Appeal had declined to take into account additional material that was “inconsistent with the case … ran in the sentencing court” in the exercise of its sentencing discretion. The High Court held that this was the correct decision and that (at [2]):
[2] “As a general rule, the appellate court's assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. For the purposes of that assessment, an offender is not permitted to run a new and different case. This general rule does not deny that an appellate court has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice.”
Read the decision on the High Court of Australia website.
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| | | DCT Projects Pty Limited v Champion Homes Sales Pty Limited [2016] NSWCA 117
20 May 2016 - Macfarlan and Gleeson JJA and Sackville AJA
Justice Gleeson, with whom Macfarlan JA and Sackville AJA agreed, summarised the principles relating to repudiation as follows (at [39]–[42]):
[39] For the conduct of a party to constitute a renunciation of its contractual obligations it must be shown that the party is either unwilling or unable to perform its contractual obligations, that is, it has evinced an intention to no longer be bound by the contract, or stated that it intends to fulfil the contract only in a manner substantially inconsistent with its obligations and in no other way: Shevill v Builders Licensing Board [1982] HCA 47; 149 CLR 620 (Shevill) at 625-626 (Gibbs CJ); Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; 166 CLR 623 at 634, 647-648, 658; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; 233 CLR 115 (Koompahtoo) at [44]. Repudiation is a serious matter and is not to be lightly found or inferred: Shevill at 633 (Wilson J).
[40] Where inability to perform is declared the conduct amounts to a refusal to perform and the innocent party need not prove that the other party was actually unable to perform when the time for performance came: Universal Cargo Carriers Corporation v Citati [1957] 2 QB 401 at 437.
[41] A renunciation can be made either by words or conduct, provided it is clearly made: Universal Cargo Carriers Corporation v Citati at 436. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it: Koompahtoo at [44]; Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd at 659 (Deane and Dawson JJ) and 647 (Brennan J).
[42] So far as factual inability to perform is concerned, what needs to be shown is that the party in question has become wholly and finally disabled from performing the essential terms of the contract altogether: Rawson v Hobbs [1961] HCA 72; 107 CLR 466 at 481; Almond Investors Ltd v Kualitree Nursery Pty Ltd [2011] NSWCA 198 at [62] (Bathurst CJ; Giles JA and Handley AJA agreeing). It is well accepted that factual inability must be proved “in fact and not in supposition”: Universal Cargo Carriers Corporation v Citati at 450.
Justice Gleeson, in summarising the primary judge’s reasons, also provided an overview of the principles relating to misleading and deceptive conduct and especially misrepresentation by silence (at [118]–[119]):
[118] At [104], his Honour referred to the principles relevant to characterising conduct as misleading or deceptive, including the necessity to look at the conduct as a whole: Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304 at [25].
[119] At [105], his Honour noted that in the case of silence, the question whether silence is misleading or deceptive is normally answered by asking whether the person alleged to have been misled or deceived had a reasonable expectation of disclosure. Reference was made to the principles summarised by Sackville AJA in Fabcot Pty Ltd v Port Macquarie-Hastings Council [2011] NSWCA 167 at [209], which was cited with approval by Barrett JA (Bathurst CJ and Beazley P agreeing) in Traderight (NSW) Pty Ltd v Bank of Queensland Ltd [2015] NSWCA 94 at [192].
Read the decision on the NSW Caselaw website.
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| Conference & Exhibition Organisers Pty Ltd v Johnson [2016] NSWCA 118
20 May 2016 - McColl, Meagher and Leeming JJA
Justice McColl summarised the principles relating to Anshun estoppel as follows (at [3]–[5], footnote numbers omitted):
[3] As I explained in Habib v Radio 2UE Sydney Pty Ltd, there will be an Anshun estoppel if it appears that “the matter relied upon … in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.”
[4] Anshun estoppel, established in Henderson v Henderson, involves an extended doctrine of res judicata. However, in Anshun, the plurality held that the adoption of the principle in Henderson v Henderson was taken too far by Lord Kilbrandon in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd. Thus, the plurality rejected his Lordship’s formulation of the test that it was “an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.” Rather, the test is one of reasonableness. There will be no estoppel unless it appears that the matter relied upon in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.
[5] Thus Anshun estoppel introduces “an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings.” [9] As Allsop P said in Champerslife Pty Ltd v Manojlovski, this entails “at least two related assessments … was the matter so relevant that it can be said to have been unreasonable not to rely upon it in the first proceeding?” (emphasis in original).
Justice Meagher also summarised the principles relating to Anshun estoppel (at [21]–[24]):
[21] Anshun estoppel operates to preclude a party from asserting a claim or raising an issue that is so closely related to the subject matter of proceedings already conducted that it ought reasonably to have been asserted or raised at an earlier time: see Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 89 ALJR 750 at [22]. The circumstances in which such an estoppel arises were described by Gibbs CJ, Mason and Aickin JJ in Anshun (at 602):
[T]here will be no estoppel unless it appears that the matter relied upon… in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.
[22] In addressing the question of reasonableness for this purpose, the joint judgment went on to note (at 603):
[T]here are a variety of circumstances … why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.
[23] For this reason, a mechanical approach to identifying common facts in proceedings said to give rise to an Anshun estoppel should be avoided: Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; 75 NSWLR 245 at [3] (Allsop P), [52] (Giles JA). As Allsop P emphasised (at [4]):
The mere fact that the matter could have been raised does not mean it should have been raised (for the operation of the principle). Rather it has to be so relevant as to make it unreasonable not to raise it. [emphasis in original]
[24] When applying these principles and in particular considering the question of reasonableness, it is necessary to bear in mind, as McColl JA observed in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 (at [85]):
… that “shut[ting] out a claim … a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation…is a serious step, [and] a power not to be exercised except ‘after a scrupulous examination of all the circumstances’ ”: Ling v Commonwealth (1996) 68 FCR 180 (at 182) per Wilcox J, approved in Bazos (at [45]) per Stein JA (Priestley and Beazley JJA agreeing); see also Brisbane City Council v Attorney-General (Qld) [1979] AC 411 (at 425) per Lord Wilberforce.
Read the decision on the NSW Caselaw website.
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| Wilkie v Brown [2016] NSWCA 128
26 May 2016 - Beazley P, McColl and Gleeson JJA
President Beazley, with whom McColl and Gleeson JJA agreed, considered “whether the respondent, who is a solicitor, is entitled to costs in circumstances where he has acted for himself in the proceedings” (at [26]). After reviewing the authorities, Beazley P found that “it is accepted that it was part of the ratio of the High Court’s decision in Guss v Veenhuizen that the Chorley principle [that a solicitor acting in person may recover professional costs], applies in Australia” (at [27]) but went on to consider, but not determine, whether the applicable NSW costs provisions were “materially different” to those in Guss v Veenuizen. In the absence of a contradictor, the Court awarded the self-represented solicitor costs.
Read the decision on the NSW Caselaw website.
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| Learmont v Commissioner of Police [2016] NSWCA 137
22 June 2016 - Beazley P, Ward JA and Sackville AJA
Justice Ward, with whom Beazley P and Sackville AJA agreed, summarised some of the principles relating to unreasonableness in considering a submission that the failure to make a finding was unreasonable in the sense identified by the High Court in Minister for Immigration and Citizenship v SZDMS [2010] HCA 16; (2010) 240 CLR 611:
[92] The threshold for irrationality and unreasonableness is a high one in that it was made clear in SZMDS that a court should not lightly interfere with administrative decision-making (per Crennan and Bell JJ at [122]).
[94] It is rare that it is possible to isolate unreasonableness as an independent ground of judicial review (separate from, for example, taking into account irrelevant considerations, or ignoring relevant considerations). Disagreement, or even a strong sense of disagreement, with a decision, does not amount to unreasonableness. So much is apparent from the joint judgment of Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 in which their Honours noted (at 626) that statements of disagreement with a decision expressed in the language of unreasonableness might amount to no more than “emphatic ways of saying that the reasoning is wrong, [in which case] they may have no particular legal consequence”.
Read the decision on the NSW Caselaw website.
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| Bobolas v Waverley Council [2016] NSWCA 139
23 June 2016 - McColl and Simpson JJA, Sackville AJA
Justice McColl upheld the rejection of the appellant’s medical certificates, stating (at [221]):
[221] A medical certificate relied upon to demonstrate a litigant is unable to attend court must address the “critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing.” [176]
In rejecting the appellants’ claims that their status as unrepresented litigants “should afford them different treatment in the proceedings to that accorded … to represented litigants generally” and that the LEC had “breached a duty of care to them”, McColl JA stated (at [246]–[247]):
[246] There is no “special” duty of care owed to unrepresented litigants. Rather, to the extent there is an obligation, sometimes described as a “duty”, but not a “duty of care” it is framed in terms of the right to a fair trial.
[247] Courts have an overriding duty to ensure that a trial is fair, which entails ensuring that the trial is conducted fairly and in accordance with law. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented. However, the court’s duty is not solely to the unrepresented litigant. Rather, the obligation is to ensure a fair trial for all parties. While a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial, the application of that principle will vary depending upon the circumstances of the case. In particular, the duty of a trial judge does not extend to advising the accused as to how his or her rights should be exercised, nor to giving judicial advice to, or conducting the case on behalf of, the unrepresented litigant. The judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. The judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.
Read the decision on the NSW Caselaw website.
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| | Federal Court of Australia
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| Singh v Minister for Immigration and Border Protection [2016] FCA 574
19 May 2016 - Bromwich J
Justice Bromwich refused an adjournment application, holding (at [17]) that a generic medical certificate…
[17] … is an insufficient and unacceptable means by which a scheduled hearing before this Court should be adjourned arises from clear authority from the New South Wales Court of Appeal in similar circumstances in AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [3] – [6]. AHB indicates that, in considering an application to adjourn the hearing of an appeal, an appeal court will not ordinarily act on a “formulaic document” but rather will usually require an explanation on oath from the medical practitioner of the illness and the reasons for the applicant’s inability to attend Court. That is especially so when a matter had been fixed for hearing some considerable time ago and its presence in the list has prevented other matters being listed for hearing.
Note: the same approach has been adopted by the Appeal Panel in cases such as Hagh v Kong [2014] NSWCATAP 47.
Read the decision on the Federal Court of Australia website.
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| Abbey Laboratories Pty Ltd v Australian Pesticides and Veterinary Medicines Authority [2016] FCA 704
10 June 2016 - Rares J
Justice Rares summarised some of the principles relating to the interaction of obligation to afford procedural fairness and the public interest in protecting confidential information (at [58]–[60]):
[58] Ordinarily, administrative decision-makers can, and must, perform their statutory functions and at the same time afford procedural fairness conscious that they cannot reveal to third parties any matter the disclosure of which is protected or prohibited by the legal principles governing public interest immunity or confidential information.
[59] The law in this respect was explained in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 97-100 [20]-[29]. There Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ held that, where a decision-maker has information that is adverse to the interests of a person who will be affected by an administrative decision, the decision-maker must draw the person’s attention to it, but need not do so in a way that destroys or impairs any confidentiality in respect of the information. Their Honours held that where an Act regulated a decision-maker’s task, the content of the obligation to accord procedural fairness had to be identified, having regard to the scope and objects of the Act as a whole.
[60] They said that a decision-maker had to accommodate the public interest in protecting confidential material (in that case, the identity of an informer) with the obligation to afford procedural fairness to a visa applicant by disclosing what the substance of the adverse information was and asking for a response (225 CLR at 100 [29]). They said that “[t]he application of principles of procedural fairness in a particular case must always be moulded to the particular circumstances of that case” (225 CLR at 99 [25]), citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 13-14 [37] per Gleeson CJ, 16 [48] per McHugh and Gummow JJ (see too Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 98 [152] per Hayne, Crennan, Kiefel and Bell JJ; Eastman v Director of Public Prosecutions (No 2) (2014) 9 ACTLR 178 at 231-232 [165]-169] per Rares and Wigney JJ and Cowdroy AJ; Minister for Immigration and Citizenship v Maman (2012) 286 ALR 680 at 691-692 [37]-[38] per Flick and Foster JJ and the cases there cited, 703-704 [91]-[92] per Katzmann J). Indeed as Gleeson CJ said in Lam 214 CLR at 14 [37]:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. (emphasis added [by Rares J]).
Read the decision on the Federal Court of Australia website.
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| In the Matter of Equititrust Ltd (In Liq) (Receiver Appointed) (Receivers and Managers Appointed) (No 3) [2016] FCA 738
23 June 2016 - Markovic J
Justice Markovic quoted, with approval, the summary of the principles relating to legal professional privilege in AWB Ltd v Cole (No 5) (2006) 155 FCR 30 at [44] (Young J), the principles relating to shared or similar interest privilege in Farrow Mortgage Services Pty Ltd (in liquidation) v Webb (1996) 39 NSWLR 601 (Farrow) at 608 (Sheller JA) and the principles applying to a claim for common interest privilege in Farrow at 609.
These summaries can be found at [11]–[16] of Markovic J’s judgment.
Read the decision on the Federal Court of Australia website.
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| Fewin Pty Ltd v Burke (No 2) [2016] FCA 739
23 June 2016 - Markovic J
Justice Markovic summarised some of the authorities on the ordering of costs on an indemnity basis (at [4]–[5]):
[4] The usual rule is that an order for costs is made on a party and party basis. However, the Court has recognised that an order for indemnity costs can be made in an appropriate case. That is where it can be shown that there is a reason to depart from the ordinary rule: see Colgate Palmolive Co v Cussens Pty Ltd (1993) 46 FCR 225 at 233 (Colgate Palmolive) (Shepherd J); Silverfox Co Pty Ltd v Lenard’s Pty Ltd (No 3) (2004) 214 ALR 621 at [26] (Mansfield J).
[5] In Colgate Palmolive Shepherd J observed at 234 that in determining whether to make an award of costs on an indemnity basis “[t]he question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis”. At 233, after observing that the categories of cases in which the discretion to award indemnity costs are not closed, his Honour set out some of the circumstances where an exercise of the discretion had been warranted including where allegations of fraud had been made, knowing them to be false or irrelevant; where there was evidence of particular conduct which caused loss of time to the court or the parties; where proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law; where allegations that ought not to have been made are made or proceedings are unduly prolonged by groundless contentions or where there is an imprudent refusal of an offer of compromise.
Read the decision on the Federal Court of Australia website.
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| | | ALYK (H.K) Limited v Caprock Commodities Trading Pty Limited and China Construction Bank Corporation [2016] NSWSC 764
10 June 2016 - Black J
Justice Black brought together some of the well-established principles of contractual construction (at [12]):
[12] That approach [the objective approach in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52] was confirmed in Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd [2014] HCA 7; (2014) 306 ALR 25 at [35] where French CJ, Hayne, Crennan and Kiefel JJ observed that (citations omitted):
"[T]his Court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding 'of the genesis of the transaction, the background, the context [and] the market in which the parties are operating'.”
I have had regard to the High Court’s review of the principles of construction in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 325 ALR 188 (at [46]–[52], [59]) and I proceed on the basis that construction should commence with the language used by the parties, although the Court may also have regard to objective surrounding circumstances.
Read the decision on the NSW Caselaw website.
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| | NSW Civil and Administrative Tribunal
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| Yang v NSW Land and Housing Corporation [2016] NSWCATCD 37
27 April 2016 - G J Sarginson
Member Sarginson discussed the authorities on betterment at [52] to [63]. These included the Court of Appeal case of Hyder Consulting (Aust) Pty Ltd v Wlh Wilmemsen Agency Pty Ltd [2001] NSWCA 313 and a number of Tribunal authorities. The Member concluded that the assessment of damages for the replacement of water damaged goods should take into account the depreciation for the age of the goods (at [65]):
[65] I am satisfied that it is appropriate to assess damages to the tenant taking into account depreciation for the age of the goods that were water damaged and require replacement. I do not regard the principle enunciated by Sheller JA at para [54] of Hyder Consulting as applicable in this case. The value of the tenant’s belongings depreciated over the period she owned the belongings. Unlike the plaintiffs in Hyder Consulting and Tzaneros Investments, the tenant has the ability to purchase second hand goods to replace the items that were water damaged. The authorities of the Tribunal referred to above support the approach that the depreciated value of the goods (either by way of the current second hand value of the goods less depreciation, or the cost of new goods less depreciation) should be the touchstone for assessing replacement cost, not the full cost of new items (notwithstanding the tenant’s evidence she obtained the “cheapest quotes” for such items).
Read the decision on the NSW Caselaw website.
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