| | | | | | | NCAT Legal Bulletin Issue 4 of 2017
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| The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal. This issue covers the period of April to May 2017.
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| Smith v The Queen; The Queen v Afford [2017] HCA 19
10 May 2017 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In brief: The High Court held, in relation to two appeals, that an accused’s intention to import a substance contrary to s 307.1(1) of the Criminal Code (Cth) could be inferred from the accused’s knowledge or belief that there was a real or significant chance that he or she was importing the substance. In doing so, the Court held (at [63]) that the inferential reasoning posited in Bahri Kural v The Queen (1987) 162 CLR 502; [187] HCA 16 is applicable to s 307.1(1) of the Criminal Code.
Consequently, a majority of the Court (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) dismissed both appeals, finding that the directions of the trial judges were sufficient in the relevant proceedings below. The majority also recommended (at [69]) a course of directions for trial judges to follow in future cases.
Read the decision on the High Court of Australia website.
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| Aubrey v The Queen [2017] HCA 18
10 May 2017 - Kiefel CJ, Bell, Keane, Nettle, Edelman JJ
In brief: The High Court dismissed an appeal from a decision of the NSW Court of Criminal Appeal, holding that the reckless infliction of sexual disease is capable of amounting to the infliction of grievous bodily harm within the meaning of s 35(1)(b) of the Crimes Act 1900 (NSW). In arriving at this conclusion, the Court observed (at [24], [40]) that, “in light of contemporary ideas and understanding, any other result would be productive of considerable inconvenience”, following, inter alia, a decision of the Queen’s Bench in R v Dica [2004] QB 1257.
Furthermore, the Court held (at [29]) that the approach to statutory construction in Australia “allows that, if things not known or understood at the time an Act came into force fall, on a fair construction, within its words, those things should be held to be included.” In support of this proposition, the Court cited the reasoning of Barwick CJ in Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327 at 331 (Menzies J agreeing at 332), which considered whether the word “gas” in English legislation extended to liquefied petroleum gas, which was not produced at the time the relevant statute was enacted. Drawing an analogy to the task before it, the Court noted (at [29]) that “Barwick CJ held that although the connotation of the word "gas" was fixed, its denotation could change with changing technology.”
Read the decision on the High Court of Australia website.
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| Pickering v The Queen [2017] HCA 17
3 May 2017 - Kiefel CJ, Gageler, Nettle, Gordon, Edelman JJ
In brief: The High Court unanimously allowed an appeal from a decision of the Queensland Court of Appeal, holding that a miscarriage of justice had occurred in the trial of the appellant, because the trial judge failed to direct the jury on s 31(1)(c) of the Criminal Code 1899 (Qld). The appellant was tried before a judge and jury on a count of murder. He was acquitted of murder but convicted of manslaughter, which was available as an alternative verdict under the Criminal Code.
Relevantly, s 31(1)(c) of the Criminal Code provides that a person is not criminally responsible for an act if the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person. This provision is limited by s 31(2), which states that the protection does not extend to, inter alia, “an act … which would constitute the crime of murder, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element".
The plurality (Gageler, Gordon and Edelman JJ) held (at [47]) that “the proper construction of s 31 allows for the possibility that a person charged with manslaughter, whose culpability was very low, could be absolved of criminal responsibility under s 31(1)”, as the offence of manslaughter is not included in the words of s 31(2). Kiefel CJ and Nettle J also emphasise the primacy of the statutory words, observing (at [30]) that:
“A legislative choice [had] been made as to which offences will not be subject to the exculpatory provision of s 31(1). The offence of manslaughter is not an offence of murder and is not an offence of which grievous bodily harm is an element. A person charged with manslaughter is not to be denied the benefit of s 31(1)(c) because the injury inflicted in the circumstances there described amounts to grievous bodily harm.”
Accordingly, the Court (at [32], [56]) quashed the appellant’s conviction and ordered that a new trial be held.
Read the decision on the High Court of Australia website.
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| Plaintiff M96A/2016 v Commonwealth of Australia [2017] HCA 16
3 May 2017 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In brief: The High Court unanimously held that ss 186 and 196 of the Migration Act 1958 (Cth) validly authorised the detention of unlawful non-citizens who were brought to Australia from a regional processing country for a temporary purpose. The plurality (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ) held (at [27]) that the plaintiffs’ detention was for a lawful purpose, namely their removal from Australia.
Read the decision on the High Court of Australia website.
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| Talacko v Bennett [2017] HCA 15
3 May 2017 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In brief: The High Court unanimously allowed an appeal from the Supreme Court of Victoria, holding that the meaning of the word “stay”, as it appears in s 15(2) of the Foreign Judgments Act 1991 (Cth), is not necessarily confined to stays imposed by courts, but is capable of including any legal impediment to execution upon the judgment.
Relevantly, s 15(2) of the Foreign Judgments Act 1991 (Cth) provides that “[a]n application may not be made until the expiration of any stay of enforcement of the judgment in question.” Following Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70], the Court held that “the meaning of s 15(2) is to be determined by reference to considerations of text, context and purpose”.
In relation to text of the provision, the plurality (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ, Gageler J and Nettle J agreeing) observed (at [66]) that other “stay” provisions operated without judicial process across Commonwealth legislation and that the use of the word “any” before the word “stay” provided “some, though perhaps not a decisive, indication of a legislative intention to comprehend any legal impediment to execution upon the judgment.”
In relation to the purpose of the provision, the plurality noted (at [68]) that the Explanatory Memorandum for the Foreign Judgments Bill 1991 provided that the Bill was largely modelled on the Foreign Judgments (Reciprocal Enforcement) Ordinance 1954 (ACT), which, in turn, was substantially modelled on the Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK). In the same passage, the Court then turned to the Report of the Foreign Judgments (Reciprocal Enforcement) Committee which, in relation to the relevant precursor provision in the UK Act, stated that the certified copy of a British judgment was “not to be issued if execution has been stayed”.
Read the decision on the High Court of Australia website.
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| | Issa v Australian Alliance Insurance Co Ltd t/as Shannons Insurance [2017] NSWCA 87
2 May 2017 - Beazley ACJ and Basten JA
In brief: The New South Wales Court of Appeal refused an application for leave to appeal, finding that the appellant’s grounds of appeal did not identify any errors of law. The appellant alleged, inter alia, that the primary judge had “erred in failing to find that the [magistrate] had erred in law in concluding that the Applicants had failed to prove on the balance of probabilities that the collision was without intent”.
The Court held (at [7]) that this appeal ground did not identify any error of law. In doing so, the Court acknowledged (at [8]) its earlier statement, in Tolson v Roads and Maritime Services [2014] NSWCA 161 at [53], that:
“[A]n erroneous finding of fact may demonstrate a basic misunderstanding of the case brought by the claimant, so as to demonstrate that the tribunal has failed to address and determine the issues before it and has thus failed to exercise its jurisdiction: State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 at [11]-[12].”
Such a failure to exercise its jurisdiction is an error of law. In the present case, it was held (at [8]) that such an error of law had not been established as the fact-finding of the magistrate below was “logical, persuasive and fully reasoned.”
Read the decision on the NSW Caselaw website.
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| Federal Court of Australia
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| Nyoni v Shire of Kellerberrin [2017] FCAFC 59
13 April 2017 - North, Dowsett and Rares JJ
In brief: The Full Federal Court considered what an appellant must establish to justify an appellate court rejecting as erroneous a finding of fact in a decision below, in circumstances where the primary judge has seen and heard witnesses and made findings based on those witnesses’ credibility.
The Court held (at [8]) that an appellant must demonstrate an error within the principle specified in Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at 558-559 [43], in which a majority of the High Court (French CJ, Bell, Keane, Nettle and Gordon JJ) stated (references omitted):
“If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But 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”.”
Read the decision on the Federal Court of Australia website.
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| | Antova v Bokan (No 2) [2017] NSWSC 556
8 May 2017 - Kunc J
In brief: The Supreme Court of New South Wales considered the circumstances in which a gross sum costs order should be made under s 98(4) of the Civil Procedure Act 2005 (NSW).
Relevantly, s 60(4)(a) of the Civil Administrative Tribunal Act 2013 (NSW) provides that the Tribunal may determine “to what extent costs are to be paid”, empowering it to make a gross sum costs order in appropriate cases, see 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 at [35]-[37]. Furthermore, the Appeal Panel, in 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited, held (at [38]) that:
“Given the similarity in wording between s 60(4)(a) of the NCAT Act and s 98(1)(b) of the [Civil Procedure] Act, the Courts’ decisions concerning gross sum costs orders provide helpful guidance for the Tribunal when determining whether to make a fixed sum costs order, as sought in this case.”
In the present case, the Court referred to (at [12]) the authoritative principles governing the application of s 98(4) as stated by Beazley JA (Giles and Whealy JJA agreeing) in Hamod v State of New South Wales [2011] NSWCA 375 at [813]-[820]. These principles are as follows (references omitted):
“[813] The discretion thereby conferred upon the court is not confined and may be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision.… In Harrison v Schipp, Giles JA considered that the discretion in s 98(4) may be exercised where the assessment of costs would be protracted and expensive and, in particular, if it appeared that a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment.
[814] The courts have typically applied a discount in assessing costs on a gross sum basis.
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[815] The specified gross sum costs procedure is particularly useful in complex cases. The power must be exercised judicially and only after giving the parties an adequate opportunity to make submissions, and that before exercising the power the court should be confident that the approach taken to estimate costs is fair, logical and reasonable.
[817] The exercise of the power conferred by s 98(4) is particularly appropriate where the costs have been incurred in lengthy or complex cases and it is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment. This may arise either from the likely length and complexity of the assessment process.
[817] The power may also be exercised where a party’s conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings.
[818] The assessment of any lump sum to be awarded must represent a review of the successful party's costs by reference to the pleadings and complexity of the issues raised on the pleadings; the interlocutory processes; the preparation for final hearing and the final hearing. In the exercise of its discretion the court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment.
[820] The costs ordered should be based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills).… This may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment.”
Furthermore, in the light of ss 36(1) and (4) of the NCAT Act, which are analogous to ss 56(1), 57(1)(d) and 60 of the Civil Procedure Act, the following factors merit particular consideration:
“[816] … [T]he relative responsibility of the parties for the costs incurred; the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability.”
In relation to any discount that may be applied in making a gross sum costs order, the Court approved (at [13]) the additional observations of Brereton J in Hancock v Rinehart (Lump sum costs) [2015] NSWSC 1640 at [57]-[58]:
“[57] While it is undoubtedly the usual practice of the court when making a lump sum costs order to apply a discount for the reasons mentioned, that does not mean that the Court must apply a percentage discount to the sum sought by the successful party, and the Court “must be astute not to cause an injustice to the successful party” by applying “an arbitrary ‘fail safe’ discount on the costs estimate submitted to the court”. Thus if the court can be confident that there is little risk that the sum includes costs that might be disallowed on assessment, the case for a discount is seriously undermined.
[58] Where a gross sum is assessed on an indemnity basis, and there is no evidence of unreasonableness, it may be inappropriate to apply any discount, although one may nevertheless be appropriate if there is evidence that the successful party “errs on the side of excessiveness [as in excessive use of legal services]”.”
Read the decision on the NSW Caselaw website.
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| Supreme Court of Queensland
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| Guirguis Pty Ltd & Anor v Michel’s Patisserie System Pty Ltd & Ors [2017] QCA 83
9 May 2017 - Fraser and McMurdo JJA and Boddice J
In brief: The Queensland Court of Appeal considered how appellate bodies and primary decision-makers should deal with the credibility of witnesses in reviewing and making findings of fact, respectively. Following Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, the Court observed (at [49]) that appeal courts are generally reluctant to interfere with factual findings of a trial judge, as they assume that the trial judge has fulfilled his or her duty to consider the entirety of the evidence viewed as a whole.
Subsequently, the Court stated (at [50]) that most experienced judges subscribe to the view expressed by Goff LJ in Armagas Ltd v Mundogas SA (The “Ocean Frost”) [1985] 3 WLR 640; [1985] 1 Lloyd’s Rep 1 at 57. Goff LJ, in The “Ocean Frost”, stated that when considering the credibility of witnesses it is essential:
“[A]lways to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities”.
Furthermore, the Court approved (at [50]) of an additional observation of Goff LJ, in the same passage, who stated:
“It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.”
Read the decision on the Supreme Court LIbrary Queensland website.
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| Supreme Court of Western Australia
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| Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
21 April 2017 - Martin CJ, Newnes JA and Beech J
In brief: The Western Australia Court of Appeal considered the proper role that an appellate court should play in reviewing findings of fact by a court or tribunal at first instance, as well as the obligation on Tribunals to give reasons for their decisions.
Following Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, the Court (at [99]) summarised the principles that govern the role of an appellate court in reviewing findings of facts, as developed by the plurality (Gleeson CJ, Gummow and Kirby JJ) in that case. These principles are as follows (references omitted):
(a) all appeals are creatures of statute therefore the ambit of any appeal will turn upon the proper construction of the statute creating the right of appeal;
(b) while on the one hand the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'[82] on the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the records;
(c) these limitations include the disadvantage that the appellate court has when compared with a tribunal at first instance in respect of the evaluation of the credibility of witnesses and of the 'feeling' of a case which cannot be gleaned from the reading of the transcript;
(d) furthermore, an appellate court does not typically get taken to or read all of the evidence taken at trial, with the result that a tribunal at first instance has advantages that derive from considering the entirety of the evidence, and reflecting upon that evidence over a longer interval;
(e) within these constraints an appellate court is obliged to conduct a real review of the trial and is not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses and should make due allowance in this respect';
(f) in general an appellate court is in as good a position as the court at first instance to decide on the proper inference to be drawn from facts which are undisputed or, which having been disputed, are established by the findings of the court;
(g) in deciding the proper inference to be drawn the appellate court will give respect and weight to the conclusion of the court at first instance but once having reached its own conclusion will not shrink from giving effect to it;
(h) the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute;
(i) in some cases incontrovertible facts or uncontested testimony will demonstrate that the conclusions of fact made by the court at first instance are erroneous even when they appear to be, or are stated to be based on credibility findings;
(j) if the decision at trial is glaringly improbable or contrary to compelling inferences the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses;
(k) while appellate deference to the decision of a trial judge can be justified by the advantage of assessing the demeanour of witnesses when giving their evidence, more recently caution has been expressed with respect to the weight properly given to assessments of demeanour as compared to an assessment of credibility based upon objectively established facts, contemporary documents and the apparent logic of events.
Furthermore, following CSR Ltd v Della Maddalena [2006] HCA 1 at [21] and Robinson Helicopter Co Inc v McDermitt [2016] HCA 22 at [43], the Court also observed (at [100]) that:
“Generally speaking, a trial judge's credibility‑based findings will not be reversed on appeal unless it is demonstrated that such findings are flawed by reference to incontrovertible facts or uncontested testimony, or are glaringly improbable or contrary to compelling inferences.”
In relation to a Tribunal’s duty to give reasons for its decisions, the Court held (at [102]-[103]) that a statutory obligation to give reasons should be construed in the context of a line of appellate decisions that considered substantially similar provisions contained within Commonwealth statutes, namely s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 27 of the Administrative Appeals Tribunal Act 1975 (Cth). These decisions include SNF (Australia) Pty Ltd v Jones [2008] WASCA 121; Manonai v Burns [2011] WASCA 165; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480; Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226; Beale v Government Insurance Office (NSW); Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525.
The propositions established in those decisions are as follows (references omitted):
“(a) the primary function of reasons is to allow an appeal court to determine whether the decision involved appellable error and to provide procedural fairness to the litigants who are entitled to know why they have been successful or unsuccessful;
(b) the statement of reasons must explain the actual path of reasoning in sufficient detail to enable a court to see whether the decision is vitiated by error;
(c) reasons need not be lengthy and elaborate, nor do they require a reference to all of the evidence led or to every submission advanced by the parties;
(d) there is no mechanical formula which can be applied to determine whether reasons are adequate in any particular case - much will depend upon the particular circumstances of any individual case;
(e) usually it will be necessary to look at the reasons as a whole, viewed in the context of the evidence;
(f) where one set of evidence is accepted over a conflicting set of significant evidence the trial judge must set out his or her findings as to how it is that one has been accepted over the other;
(g) inadequacy of reasons does not necessarily amount to appellable error - rather, an appeal court will only intervene when the inadequacy is such as to give rise to a miscarriage of justice;
(h) appellable error arising from inadequate reasons does not necessarily result in a new trial - in an appropriate course the appeal court may itself determine the matter.”
The Tribunal’s statutory duty to provide reasons for its decisions is found within s 62(3) of the Civil and Administrative Tribunal Act 2013 (NSW), which provides that:
“(3) A written statement of reasons for the purposes of this section must set out the following:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal’s understanding of the applicable law,
(c) the reasoning processes that lead the Tribunal to the conclusions it made.”
Read the decision on the Supreme Court of Western Australia website.
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