| | | | | | | NCAT Legal Bulletin Issue 4 of 2018
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| The NCAT Legal Bulletin provides case summaries of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
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| Amaca Pty Limited v Latz; Latz v Amaca Pty Ltd [2018] HCA 22
13 June 2018 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
In brief: The High Court dismissed an appeal from the Full Court of the Supreme Court of South Australia by majority (Bell, Gageler, Nettle, Gordon and Edelman JJ), holding that Mr Latz, a retiree dying from malignant mesothelioma caused by the negligence of Amaca Pty Ltd, is entitled to damages for the loss of his superannuation pension, which he would have received during the 16 years calculated as the difference between his pre- and post-illness life expectancy.
A claimant who has suffered negligently caused personal injury has traditionally been seen to recover damages calculated under three heads or types of loss (at [88]):
“(1) certain non-pecuniary losses (even if no actual financial loss is caused and the damage caused by the defendant cannot be measured in money); (2) loss of earning capacity; and (3) actual financial loss.” (footnote omitted)
The Court described the loss of earning capacity as a “capital asset” ([89]), and found that superannuation entitlements amounted to delayed remuneration for work carried out ([104]). In concluding, the Court distinguished a “capital asset”, like superannuation, from the “non-receipt of other forms of benefit”, including the age pension (at [109] and [115]):
“[109] In these appeals, there is a clear and recognised injustice. As a result of Mr Latz's injury, caused by Amaca, he will suffer an economic loss in respect of his superannuation pension. That loss is both certain and able to be measured by reference to the terms of the Superannuation Act – the net present value of the superannuation pension for the remainder of his pre-illness life expectancy, a further 16 years. He should be entitled to recover that loss. … The superannuation pension, unlike the other forms of benefit, is a capital asset and intrinsically connected to earning capacity.
…
[115] The age pension stands in stark contrast. It is not part of remuneration. It is not a capital asset. It is not a result of, or intrinsically connected to, a person's capacity to earn. Nor, contrary to Mr Latz's submission, is it a future income stream to which he has any present or future right or entitlement. … No sum is to be allowed on account of the age pension in the calculation of damages for Mr Latz's personal injuries.” (footnote omitted)
Read the decision on the High Court of Australia website.
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| Rozenblit v Vainer [2018] HCA 23
13 June 2018 - Kiefel CJ, Bell, Keane, Gordon and Edelman JJ
In brief: The High Court unanimously allowed an appeal from the Victorian Court of Appeal, holding that it was not open for the Supreme Court, under r 63.03(3)(a) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), to permit Mr Rozenblit to amend his claim on condition that the proceedings were stayed until he paid costs as previously ordered. The Court could not be satisfied that granting a stay in these circumstances was the “only practical way to ensure justice between the parties” ([53]).
Rule 63.03(3)(a) provides as follows:
“(3) Where the Court makes an interlocutory order for costs, the Court may then or thereafter order that if the party liable to pay the costs fails to do so—
(a) if that party is the plaintiff, the proceeding shall be stayed or dismissed;”.
The leading judgment was delivered by Gordon and Edelman JJ. Their Honours found that ([100]):
“…the question the Court was required to ask itself, and answer, was whether, in the circumstances of the case, there was no other fair and practical way of ensuring justice between the parties than granting a stay of the proceedings.”
In answering this question, the court must “assess the likely conduct of the parties, and any injustice that may arise if the matter were to proceed, rather than solely the past conduct that could be said to fall for condemnation.” ([108]) Further, the court must decide afresh ([111]):
“…whether the conduct of an impecunious party is so extreme as to justify bringing the proceedings to an end, and whether so ending the claim is the only way to do justice between the parties. The effective end of a proceeding is a far more significant consequence for a party than an order that interlocutory costs be paid forthwith.”
Read the decision on the High Court of Australia website.
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| Trkulja v Google LLC [2018] HCA 25
13 June 2018 - Kiefel CJ, Bell, Keane, Nettle and Gordon JJ
In brief: The High Court unanimously allowed an appeal which concerned the appellant’s allegations that Google defamed him by publishing images and web matter which conveyed imputations that he "is a hardened and serious criminal in Melbourne" ([3]). The Court held that the Victorian Court of Appeal erred in concluding that the published matters were incapable of conveying the defamatory imputations as pleaded, and in finding that the proceeding had no real prospect of success ([67]).
Their Honours determined that “[t]he test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of” ([31]):
“… In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience. As Lord Reid observed in Lewis v Daily Telegraph Ltd, "[s]ome are unusually suspicious and some are unusually naive". So also are some unusually well educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole.” (footnotes omitted)
In concluding that the material was capable of being defamatory, the Court noted that “each hit on a website is a separate publication” ([34]). Further, the Court found that ([35]):
“…it is evident for the reasons given by McDonald J [at first instance] that at least some of the search results complained of had the capacity to convey to an ordinary reasonable person viewing the search results that Mr Trkulja was somehow opprobriously associated with the Melbourne criminal underworld, and, therefore, that the search results had the capacity to convey one or more of the defamatory imputations alleged. Whether or not the search results are viewed individually or as a composite does not affect that conclusion.”
Their Honours were critical of the Court of Appeal’s approach, particularly the test applied in assessing whether certain material is defamatory ([52]):
“As has been observed, the test of capacity of a published matter to defame is, in this case, whether any of the search results complained of are capable of conveying any of the defamatory imputations alleged. It is not, as the Court of Appeal stated, whether "any of the defamatory imputations which are pleaded [are] arguably conveyed". To express the test as the Court of Appeal did runs the risk (which appears to have eventuated) of judging the issue according to what the court may think the allegedly defamatory words or images say or depict rather than what a jury could reasonably think they convey.” (footnote omitted)
Read the decision on the High Court of Australia website.
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| DL v The Queen [2018] HCA 26
20 June 2018 - Kiefel CJ, Bell, Keane, Nettle, Edelman JJ
In brief: The High Court dismissed an appeal from Full Court of the South Australian Supreme Court, holding by majority (Kiefel CJ, Keane and Gordon JJ) that the trial judge’s reasons (in a criminal trial by judge alone) were sufficient to identify and disclose the reasoning process leading to his finding that the acts on which the conviction was founded had occurred ([52]).
Absent an express statutory provision, “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied” ([32]).
Douglass v The Queen (2012) 86 ALJR 1086 at [8].
The adequacy of reasons depends on an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing on the elements of the offence, and their significance in the course of the trial ([33]). Although the trial judge did not make conclusions about matters such as the number of instances that the offending occurred, the “simple and obvious logic” of his Honour’s conclusion was that the elements of the offence had been made out ([36]).
In dissent, both Bell and Nettle JJ considered that the trial judge’s reasons were inadequate, noting, among other things, his Honour’s failure to specifically identify which acts of sexual abuse he found proved (at [96] and [141], respectively).
Read the decision on the High Court of Australia website.
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| Minogue v Victoria [2018] HCA 27
20 June 2018 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
In brief: The plaintiff was sentenced to life imprisonment for the murder of a police constable, as the result of a car bombing in Melbourne in 1986. He commenced proceedings in the High Court seeking declarations that recent amendments to the Corrections Act 1986 (Vic), namely ss 74AAA and 127A, did not apply to him or to his application for parole.
Section 74AAA effectively provides that the Parole Board must not grant parole to a prisoner sentenced for the “murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer”.
Section 127A relevantly provides that “[t]o avoid doubt”, s 74AAA applies to a prisoner regardless of whether, before the commencement of those amendments ([11]):
“(i) the prisoner had become eligible for parole; or
(ii) the prisoner had taken any steps to ask the Board to grant the prisoner parole; or
(iii) the Board had begun any consideration of whether the prisoner should be should be [sic] granted parole”.
Kiefel CJ, Bell, Keane, Nettle and Edelman JJ held that s 74AAA could only apply to the plaintiff if he was sentenced on the basis that he knew that, or was reckless as to whether, the murdered person was a police officer. It was noted that “[t]he natural reading of s 74AAA(1) is that the mental element necessary is to be gleaned from what has been said by the court on sentencing.” ([46])
On the interplay of the two provisions in question, the Court noted as follows ([24]):
“Read in context, the opening words of s 127A, "[t]o avoid doubt", signify that the provision is declaratory of the intended operation of s 74AAA and, therefore, that s 127A operates from the date of commencement of s 74AAA. As this Court has observed, it is open to Parliament to enact such a law notwithstanding that it may affect or even render nugatory pending proceedings.” (footnotes omitted)
Giving their reasons separately, Gordon and Gageler JJ agreed with the majority.
Read the decision on the High Court of Australia website.
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| Lane v The Queen [2018] HCA 28
20 June 2018 - Kiefel CJ, Bell, Gageler, Keane and Edelman JJ
In brief: Kiefel CJ, Bell, Keane and Edelman JJ allowed an appeal, holding that the NSW Court of Criminal Appeal erred in concluding that no substantial miscarriage of justice arose from the failure of the trial judge to direct the jury that it must be unanimous as to the actus reus that caused the death of the deceased.
The High Court found that the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW), which authorises the Court of Criminal Appeal to dismiss an appeal against conviction if it considers that no substantial miscarriage of justice has actually occurred ([4]), cannot be applied unless the appellate court is persuaded that the evidence at trial proved the accused’s guilt beyond reasonable doubt. ([38]).
Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at 104 [29]; [2012] HCA 14, French CJ, Gummow, Hayne and Crennan JJ.
Nonetheless, some errors are capable of establishing a substantial miscarriage of justice irrespective of whether conviction was “inevitable” ([38]). While misdirection by a trial judge “always involves an error of law”, it is necessary to consider the nature and effect of the error in order to determine whether or not it will prevent the application of the proviso ([39]).
In the circumstances, without a specific unanimity direction, “[t]he case was left to the jury on the basis that it was open to it to convict the appellant by pooling individual jurors' conclusions of fact on issues in respect of which it was required to be unanimous.” ([42]-[43]) Accordingly, it was found that ([50]):
“[t]o dismiss the appeal as the majority did is to disregard the requirement of a unanimous verdict on the part of the jury and to "substitute trial by an appeal court for trial by jury." Such an error is apt to deny the application of the proviso because it means that it cannot be said that no substantial miscarriage of justice has actually occurred.” (footnote omitted)
Gageler J would also have allowed the appeal, noting that this was “yet another case in which application of the proviso … has proven problematic” ([52]). In particular, his Honour noted that the misdirection of the jury made it “impossible to be confident” that the verdict returned would have been the same had the jury been properly instructed ([63]).
Read the decision on the High Court of Australia's website.
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| | | The Owners - Strata Plan No 66375 v King [2018] NSWCA 170
3 August 2018 - Ward, Leeming and White JJA
In brief: The appellant Owners Corporation brought the proceedings in relation to alleged building defects at a property previously owned by the respondents, Mr and Mrs King.
The primary judge dismissed the appellant’s claim on the basis that the Kings were not “developers”, as defined by s 3A of the Home Building Act 1989 (NSW), because they were not parties to the relevant contract with the builder. His Honour also held that even if the Kings were “developers”, they were not liable for certain “design defects”, because the builder was not liable for those defects.
The appellant argued that the primary judge erred in: (i) failing to draw the inference that the Kings were parties to the building contract, and (ii) in finding that in any event the Kings were not liable for the “design defects”. This latter ground turned on whether s 18C of the Home Building Act only allows claims against the developer that the developer could have against the builder ([237]).
Pursuant to s 18C, “an immediate successor in title to a developer who has done residential building work is “entitled to the benefit of the statutory warranties”, as if the developer “were required to hold a licence and had done the work under a contract with that successor in title…”. ([266]).
Unanimously allowing the appeal in relation to (i), the Court held that the most likely inference was that the Kings formally executed the building contract, and did so in their personal capacities.
As to (ii), the majority (Ward and White JJA) allowed the appeal (Leeming JA dissenting). Ward JA found that a developer’s liability under s 18C is “not predicated upon, nor limited by, the existence of an actual contract between the developer and a particular builder.” ([297], [317]) Provided that the work done by (or on behalf of) the developer is “residential building work”, then, even if it is beyond the scope of the actual contract, it can nonetheless fall within the scope of the notional contract for the purposes of s 18C. ([317]).
Her Honour concluded (at [327]-[328]) that:
“[327] Therefore, I do not accept that the only rights possessed by a successor in title against a developer, pursuant to s 18C, are those rights which the developer had against the builder pursuant to its actual contract with that builder.
[328] The subject of the developer’s notional contract with the immediate successor in title is all of the residential building work in fact done by the developer, … However, the notional contract also includes all of the statutory warranties set out in s 18B, including a warranty that the work will comply with the law. … I conclude that the Kings are liable under the notional contract for breach of the statutory warranty implied by s 18B(c).”
White JA agreed with Ward JA’s conclusion, albeit via a different reasoning process ([389]-[390], [408]-[410]). While Ward JA held that the Kings were liable under s 18C for breach of the statutory warranty implied by s 18B(c) irrespective of the builder’s liability, by contrast White JA found that the Kings were liable because the builder is liable for breach of that warranty.
Read the decision on the NSW Caselaw website.
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