| | | | | NCAT Legal Bulletin Issue 4 of 2019
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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.
The latest issue feature case summaries of recent decisions from the High Court of Australia and the NSW Court of Appeal, including: - Parkes Shire Council v South West Helicopters Pty Limited [2019] HCA 14 that considered the effect of ss28 and 35 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) in limiting the claims that an individual can make for damages in respect of the death of a passenger under common law and statute.
- Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, in which the High Court considered the nature of the Administrative Appeals Tribunal’s (AAT) merits review jurisdiction. The Court held that the AAT may not take into account spent convictions in reviewing a decision by the Australian Securities and Investments Commission to impose a banning order.
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| Parkes Shire Council v South West Helicopters Pty Limited (S140/20148)
[2019] HCA 14
8 May 2019 – Kiefel CJ, Bell, Keane, Gordon and Edelman JJ
In brief: The High Court unanimously (Kiefel CJ, Bell, Keane and Edelman JJ and Gordon J agreeing in a separate judgment) dismissed the appeal. Their Honours held that s35(2) of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (CACL Act) should be construed broadly. The provision prevents a person who has made a claim under s28 of the CACL Act for damages in respect of the death of a passenger from making any other claim under domestic law, including a claim in tort. A claim under s28 of the CACL must be brought within the two year statutory limitation period.
Liability of air carriers The appeal concerned whether the CACL Act precludes a claim under the general law of torts for damages for negligently inflicted psychiatric harm resulting from the death of a passenger during air carriage to which the CACL Act applies ([1]).
The appellant, the Parkes Shire Council, engaged the respondent, South West Helicopters Pty Limited, to assist it to conduct a low-level aerial noxious weed survey by helicopter. On 2 February 2006 a helicopter operated by Mr Thrupp, an employee of the respondent, for the above purpose and carrying Mr Buerckner and Mr Stephenson, two of the appellant’s officers, crashed killing all three passengers ([2]). Mr Stephenson’s widow, daughter and son claimed damages for negligently inflicted psychiatric harm caused by Mr Stephenson’s death against the appellant and the respondent ([3]). They were successful at first instance in the Supreme Court of NSW. The appellant obtained judgment against the respondent as co-tortfeasor under s37(b) of the CACL Act. The respondent successfully appealed to the Court of Appeal ([4]). The appellant unsuccessful appealed to the High Court.
The liability of international air carriers to passengers is the subject of various multilateral conventions. Australia is a party to these, including the Convention for the Unification of Certain Rules Relating to International Carriage by Air (1929) (“the Warsaw Convention”) which is not limited to but both creates and limits the liability of a carrier “for damage sustained in the event of the death” of a passenger, and related conventions and amendments (the Conventions) ([6], [12]). The CACL Act was passed in response to the Warsaw Convention ([13]). Section 28 of the CACL Act provides:
“Subject to this Part, where this Part applies to the carriage of a passenger, the carrier is liable for damage sustained by reason of the death of the passenger or any personal injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking” ([14]).
Claims under s28 of the CACL Act prevent all other claims in relation to the same conduct
Chief Justice Kiefel, Bell, Keane and Edelman JJ held that s28 of the CACL Act entitled the Stephensons to claim damages from the respondent for loss as a result of Mr Stephenson’s death because their claims asserted civil liability of the respondent directly related to the death of a passenger. The Stephensons in pursuing their entitlement under s28 of the CACL Act were precluded from making any other claim under domestic law (such as for negligence in the general law of tort) due to s35(2) of the CACL Act. Section 35(2) provides that “Subject to section 37, the liability under this Part is in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger”. The effect of s35(2) is that where a claim is made under the CACL Act (including for liabilities owed to persons other than passengers) the claimant is precluded from pursuing any other claim in relation to that conduct ([5], [16]-[19], [32]-[36]).
Justice Gordon agreed with the joint judgment that “Where damage is sustained by reason of the death of a passenger in the course of air carriage (including claims by non-passengers for nervous shock flowing from the death of a passenger), the civil liability of an air carrier is imposed exclusively by, and is subject to the conditions and limits of, the Carriers’ Liability Act (Cth)” ([48], [103]).”
Justice Gordon notes that under the Conventions “[t]he matters left to Australian domestic law do not affect the uniform operation of the code in defining international carriers’ liability. Indeed the most important objective in applying the principles of the Conventions to domestic air carriage, it was said was to “deprive the domestic carriers of their present [common law] right to contract out of all liability for damage howsoever caused” ([69]).
Justice Gordon held that the phrase “in respect of” in s35(2) should be construed in the widest sense. It requires “some discernible and rational link or connection” between the basis of the liability being the carriage by air and the passenger’s death ([94]). The damage in s35 is not restricted to that experienced by the deceased passenger, nor is it limited to economic or financial loss ([95]-[96]). Section 35(2) captures liabilities to non-passengers for claims brought under the Compensation to Relatives Act, for loss of consortium, for solatium, claim by an employer for loss of an employee’s services, a Lord Campbell’s Act claim, and a claim for nervous shock under the Civil Liability Act where the central element of each claim is the passenger’s death ([98]). Justice Gordon also held that there is no separate treatment of non-passengers under the CACL Act ([115]ff).
Limitation period for s28 CACL Act claims
The Stephensons’ claim cannot succeed because they did not commence the proceedings to pursue their entitlement under s28 of the CACL Act within the two year time limit in s34 of the CACL Act ([5], [103], [123]-[125]).
Chief Justice Kiefel, Bell, Keane and Edelman JJ dismissed the appeal ([5], [37]) as did Justice Gordon ([126]).
Read the decision on the High Court of Australia website.
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| Frugtniet v Australian Securities and Investments Commission
[2019] HCA 16
15 May 2019 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
In brief: The High Court unanimously held that the Administrative Appeals Tribunal (AAT) may not take into account spent convictions when reviewing a decision by the Australian Securities and Investments Commission (ASIC) to impose a banning order.
ASIC may make a banning order under s80(1)(f) of the National Consumer Credit Protection Act 2009 (Cth) (NCCP Act) against a person if ASIC has reason to believe that the person is not a fit and proper person to engage in “credit activities”. Section 80(2) of the NCCP Act provides that in making a banning order against a person, ASIC must have regard to a number of factors, subject to Part VIIC of the Crimes Act 1914 (Cth). These factors include criminal convictions of the person in the last 10 years.
Section 85ZW in Div. 3, Part VIIC of the Crimes Act provides that despite any other Commonwealth or State law but, subject to Div. 6 Part VIIC, a person with spent convictions does not have to disclose these charges or convictions to a Commonwealth Authority in the circumstances specified in s85ZV. A Commonwealth Authority includes ASIC and the AAT. Division 6 Part VIIC creates exclusions. Section 85ZZH, contained in Div. 6, excludes the operation of Div. 3 (and thus s85ZW) in a range of circumstances. This includes in relation to, “a court or tribunal established under a Commonwealth law, a State law or a Territory law, for the purpose of making a decision, including a decision in relation to sentencing” (s85ZZH(c)).
Section 80(2) of the NCCP Act and s85ZW of the Crimes Act 1914 (Cth) mean that ASIC in considering whether there is reason to believe that the person is not fit and proper, ASIC must not take into account “spent convictions” despite s85ZZH(c) of the Crimes Act. The AAT may review a decision of ASIC to make a banning order under s327 of the NCCP Act. ([1]-[9]).
The appellant has a criminal record including a conviction in the United Kingdom in 1978 of 15 counts of handling stolen goods, forgery and obtaining property by deception and theft, and a finding in Australia in 1997 that he committed an offence of obtaining property by deception in relation to the issuing of airline tickets. These are spent convictions ([11], [43]). In 2014, an ASIC delegate made a banning order against Mr Frugtniet under ss80 of the NCCP Act having found that ASIC had reason to believe that he was not a fit and proper person to engagein credit activities ([42]). Mr Frugtniet applied to the AAT for a review of the delegate’s decision. The AAT affirmed the delegate’s decision ([43]). In reviewing the decision, the AAT considered these spent convictions as being “evidence of dishonest conduct that [was] relevant under policy guidelines” ([12]).
Mr Frugtniet appealed to the Federal Court. The primary judge (Bromberg J of the Federal Court) held that the effect of s85ZZH(c) of the Crimes Act was that the prohibition on considering spent convictions in s85ZW did not apply to the AAT, as a tribunal established under a Commonwealth law, in undertaking merits review. That is, the AAT could consider spent convictions. The Full Court of the Federal Court (Reeves, Farrell and Gleeson JJ) agreed and dismissed the appeal ([13], [44]-[45]).
Contrary to the Courts below, Kiefel CJ, Keane and Nettle JJ held that the AAT may not take into account spent convictions when reviewing a decision by ASIC to impose a banning order ([1] and at [32]). Bell, Gageler, Gordon and Edelman JJ in a separate judgment reached the same conclusion ([34], [54]).
The Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) creates a merits review jurisdiction whereby (subject to alteration by statute) the AAT re-exercises the functions of original administrative decision-makers and decides whether the decision is the correct or preferable decision on the material before the AAT. Yet, the “AAT is not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision” ([14]). The AAT may sometimes take into account evidence that was not before the original decision maker, but only to the extent that it is relevant and does not change the nature of the question to be considered ([15]).
Kiefel CJ, Keane and Nettle JJ noted that it is possible - as the Federal Court below did - to read s80(2) of the NCCP Act with s85ZZH(c) of the Crimes Act as permitting the AAT to have regard to spent convictions. Their Honours rejected the argument that it can be implied from s80(2) of the NCCP Act that the provision’s statutory purpose is to subject the AAT as well as ASIC to the requirements of Part VIIC of the Crimes Act in conducting merits review ([20]). Their Honours continued:
“The likelihood of that construction, however, needs to be assessed against the background of the long-standing principles concerning the function of an administrative review tribunal in the conduct of merits review of administrative decisions, to which reference has been made. Against that background, it is improbable that Parliament would choose a technique of obscure implication in order fundamentally to alter the nature of administrative merits review of a decision made by ASIC under s80 of the NCCP Act, or, equally, to alter the nature of merits review of any other administrative decision to which the provisions of Pt. VIIC of the Crimes Act apply” ([21]).
Their Honours considered the extrinsic material, which did not indicate a parliamentary intent that the AAT was to exercise a function different to that of ASIC in reviewing these decisions ([21]).
Chief Justice Kiefel, Keane and Nettle JJ considered comparable legislative regimes in relation to specialist decision-makers and held that none of the provisions referred to by the respondent “suggests that the absence of an express stipulation that s85ZZH(c) does not apply to the AAT in the conduct of a merits review of ASIC’s decision under s80(2) of the NCCP Act implies a legislative intention that s85ZZH(c) applies to the AAT in the exercise of that function” ([22]-[27]). Section 80(2) of the NCCP Act should not be understood to make s85ZZH(c) of the Crimes Act applicable to the AAT in the review of a decision of ASIC under s80(1) of the NCCP Act. Their Honours considered Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159. Their Honours preferred the majority view that the AAT could not have regard to the applicant’s spent convictions in reviewing a decision of the Commissioner of Police not to issue a firearms licence under s16(1) of the Criminal Records Act where s12(c)(ii) of that same Act prohibited the Commissioner from so having regard ([28]). Their Honours held that this reasoning supported their interpretation in the current case ([32]). “[I]t is not to be supposed that Parliament intended to make such a profound change to the nature of the merits review by a legislative side-wind” ([32]).
Bell, Gageler, Gordon and Edelman JJ noted that s80(2) of the NCCP Act must be read in context, namely that s80 relates solely to ASIC’s power to make a banning order and constraints on that power. The provision does not relate to the AAT’s decision making power ([48]). Section 85ZZH(c) of the Crimes Act does not alter the tribunal’s statutory jurisdiction. It simply provides that Div 3 of Part VIIC of the Crimes Act does not apply to a tribunal created by statute for the purpose of it taking into account information in making a decision ([49]). The AAT when reviewing this decision of ASIC is to stand in the shoes of the decision maker in accordance with ss25 and 43 of the AAT Act unless the jurisdiction is altered by some other statute. This has not occurred here. The powers of the AAT on review are subject to the same constraints as the primary decision maker.
“The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely, a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT” ([51]).
Bell, Gageler, Gordon and Edelman JJ held that if the AAT could consider spent convictions in its review of ASIC’s decision this would “distort” the AAT’s exercise of powers, and in particular create difficulties if the decision under review was remitted to ASIC for redetermination. The Honours noted ([53]):
“The AAT and the primary decision-maker exist within an administrative continuum. The AAT has no jurisdiction to make a decision on the material before it taking into account a consideration which could not have been taken into account by the primary decision-maker in making the decision under review and which could not be taken into account by the primary decision-maker were the AAT to remit the matter to the primary-decision maker for reconsideration.”
Bell, Gageler, Gordon and Edelman JJ allowed the appeal and ordered that the AAT decision be set aside and the matter remitted to the AAT for reconsideration in accordance with law ([55]). Chief Justice Kiefel, Keane and Nettle JJ allowed the appeal and agreed with the orders proposed by Bell, Gageler, Gordon and Edelman JJ ([33]).
Read the decision on the High Court of Australia website.
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| | The NSW Court of Appeal publishes a regular bulletin containing summaries of its latest decisions of interest. Find below links to several such decisions from recent bulletins.
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| Li v Attorney General for New South Wales [2019] NSWCA 95
ADMINISTRATIVE LAW – refusal to direct inquiry under Crimes (Appeal and Review) Act 2001 (NSW), Part 7 – decision by judge of a superior court
ADMINISTRATIVE LAW – judicial review – grounds of review – where decision is substantially similar to a party’s submissions – whether judge failed to consider submissions – whether judge formed the relevant opinion – whether reasons were inadequate – whether justice seen to be done
Read the decision on the NSW Caselaw website.
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| Moubarak by his tutor Coorey v Holt [2019] NSWCA 102
CIVIL PROCEDURE – application for permanent stay of proceedings seeking damages for alleged sexual assaults that occurred in 1973 or 1974 – no applicable limitation period – relevant principles – whether proceedings should be stayed on the basis that defendant, who has dementia, would not receive a fair trial – relevance of delay or passage of time – whether need for explanation for delay – relevance of defendant’s fitness to stand trial and R v Presser [1958] VR 45
LIMITATION OF ACTIONS – civil claim for damages for sexual assaults alleged tohave occurred in 1973 or 1974 – no applicable limitation period – whether proceedings should be permanently stayed
TORTS – claim for compensation for historical sexual assault – alleged assaults occurred in 1973 or 1974 – no applicable limitation period – application for a permanent stay of proceedings – defendant suffers from dementia – defendant unable to give instructions or participate in trial
Read the decision on the NSW Caselaw website.
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| | 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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