| | | | | NCAT Legal Bulletin Issue 5 of 2021
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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 features case summaries of recent decisions from the New South Wales Court of Appeal, Federal Court of Australia and the High Court of Australia, including:
- Gautam v Health Care Complaints Commission [2021] NSWCA 85 - In which the Court of Appeal refused leave to appeal and dismissed the appeal of the appellant paediatrician, who had been found guilty of professional misconduct at the Civil and Administrative Tribunal.
- Sidoti v Hardy [2021] NSWCA 105 - In which the Court of Appeal granted leave to appeal and dismissed the appeal of the appellant, who sought to appeal the decision of the Supreme Court which found the respondent had gained possession of a strip of land between properties owned by the respective parties by adverse possession.
- Choi v Commissioner of Police, New South Wales Police [2021] NSWCA 113 - In which the Court of Appeal dismissed the summons of the applicant, who sought leave to appeal from a decision of the NCAT Appeal Panel. The Appeal Panel had refused the applicant leave to appeal from the decision of the Tribunal on grounds other than questions of law, refused her applications to extend time to appeal from interlocutory decisions and otherwise dismissed the appeal. The Court found that there was no merit in the applicant’s application.
- Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63 - In which the Full Court of the Federal Court dismissed an application for judicial review by the applicant, the Minister for Immigration (the Minister), and found that the Minister’s decision to grant the respondent a visa had been tainted by jurisdictional error. The exercise of the statutory power had been conditioned on a state of mind; this state of mind had been formed on the basis of an error of law.
- Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 81 - In which the Full Court of the Federal Court refused the interlocutory application of the appellant, who sought an order that the Court replace his name on the Court file and in the Court’s reasons for judgment with a pseudonym.
- MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17 - In which the High Court dismissed an appeal by the appellant, who sought judicial review of the respondent’s decision to cancel his visa. The appeal concerned the threshold requirement of “materiality”, which is ordinarily required to exist for a breach of an express or implied condition of a conferral of statutory decision-making authority to result in jurisdictional error.
This issue also provides links to a number of summaries published separately by the NSW Court of Appeal Decisions of Interest Bulletin.
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New South Wales Court of Appeal
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| Gautam v Health Care Complaints Commission [2021] NSWCA 85
13 May 2021 - Leeming and Payne JJA, Simpson AJA
In sum: The Court of Appeal refused leave to appeal and dismissed the appeal of the appellant paediatrician, who had been found guilty of professional misconduct at the Civil and Administrative Tribunal.
Facts: The appellant was found guilty by the Tribunal of professional misconduct, and a three-month suspension was imposed on his registration as a medical practitioner. The appellant appealed to the Court of Appeal, alleging that the Tribunal had provided inadequate reasons and misapplied the Briginshaw standard of proof. The respondent cross-appealed in respect of the protective orders, seeking instead cancellation of the appellant’s registration with a two-year non-review period ([27]-[29]).
Held (refusing leave to appeal and dismissing the appeal):
(i) Section 165M of the Health Practitioner Regulation National Law (NSW) (National Law) requires the Tribunal to provide details of decisions, and is mandatory in cases to which it applies; s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) requires written reasons only on request. Although the Tribunal is not a court, there is no difference in substance between the requirements imposed upon it by s 165M and the duty upon a court to give reasons ([53]-[55]).
(ii) Under s 165M, the minimum acceptable standard for reasons will vary, being dependent upon the nature of the case, the nature of the parties’ submissions and the nature of the issues engaged. No complaint can be made on appeal about a failure to give reasons for determining a factual issue where the Tribunal was not asked by either party to make a finding about that issue ([18]-[19], [62], [80]).
(iii) It is insufficient for the Tribunal to simply assert its preference or belief in the evidence adduced by one party rather than another; s 165M requires the Tribunal to resolve issues of fact tendered for resolution by the parties, and to explain, by reference to the relevant facts, the conclusions to which it has come. The Tribunal should then turn to the ultimate facts in issue and explain how its decisions on the issues identified by the parties have assisted it in reaching a conclusion on the ultimate issue. In the present case, the Tribunal adequately detailed its reasoning process in reaching its factual conclusions and its ultimate decision ([63]-[65], [76]).
(iv) The Tribunal had before it two diametrically opposed accounts of evidence, as is often the case in cases of sexual harassment or sexual misconduct, and came to a clear view, preferring one over the other, after extensive cross-examination of the witnesses. It was not necessary, as the appellant submitted, that the complainant’s account be “corroborated”, or that, having addressed the relevant factual issues and accepted the complainant’s account, the Tribunal provide separate reasons for rejecting the appellant’s account ([83]).
(v) The Tribunal specifically referred to, and applied, the correct test: that of Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. The words “comfortably satisfied” can be used to appropriately apply the Briginshaw test, as was done by the Tribunal and has previously been done by the Court of Appeal ([85]-[89]).
(vi) A constructive failure to exercise jurisdiction is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central and critical elements of the case or claim ([105]).
(vii) It is not true that where a practitioner disputes an application for disciplinary proceedings and puts the regulatory body to proof that a proved contravention is necessarily made more serious because of a lack of insight, remorse and understanding, and the appropriate sanction need be more severe. A practitioner’s conduct is not exacerbated by denial of guilt in proceedings ([107]).
Read the decision on the NSW Caselaw website.
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| Sidoti v Hardy [2021] NSWCA 105
26 May 2021 - Basten and Brereton JJA and Simpson AJA
In sum: The Court of Appeal granted leave to appeal and dismissed the appeal of the appellant, who sought to appeal the decision of the Supreme Court which found the respondent had gained possession of a strip of land between properties owned by the respective parties by adverse possession.
Facts: The appellants and respondent are registered proprietors of adjoining parcels of land, between which is a strip of land burdened by a right of way, which was created for the now redundant purposes of enabling access for a nightsoil carter to collect waste from outhouses on the properties, colloquially known as a “dunny lane”. This strip of land (the disputed land) was occupied by the respondent in a manner amounting to adverse possession from at least January 2005. In late 2005 the appellant’s property was brought under the Real Property Act 1900 (NSW) (RP Act) as a qualified and limited folio. In 2018, by which time cautions relating to its qualified title had been removed, the appellants became the registered proprietors, and sought to reclaim the disputed land by constructing a new fence to incorporate the disputed land into their property, pursuant to development consent. The respondent commenced proceedings claiming title to the land, and the primary judge found he had acquired title by adverse possession. The appellants appealed, and the Court granted leave to appeal on the basis that the appeal raised questions of principle with importance to the operation of the Torrens title system in NSW ([1]-[8], [45]-[75]).
Held (Brereton JA and Simpson AJA granting leave to appeal and dismissing the appeal; Basten JA in dissent):
(i) Basten JA (dissenting): Although there is real doubt whether the respondent’s actions, for example, using the disputed land to store garden equipment, and failing to block the appellant’s access, did establish an intention to assert exclusive possession, as opposed to an opportunistic user, the appellants did not challenge the primary judge’s finding in that respect. The appellant’s case on appeal rested upon their entitlement under the RP Act, and the contention that the provisions relied upon by the respondent did not qualify that entitlement ([13]-[14]).
Limitation periods
(ii) Brereton and Basten JJA and Simpson AJA: Apart from the RP Act, title to land may be acquired by adverse possession for a period of 12 years under the Limitation Act 1969 (NSW), although pursuant to s 8(1)(a) nothing in that Act affects the operation of s 45C of the RP Act ([10], [84]-[85], [180]).
Application under s 45D
(iii) Brereton and Basten JJA and Simpson AJA: Prior to the insertion of s 45C, s 45 prohibited title by adverse possession of any title to land under the RP Act; however s 45C(1) provides that no title shall be acquired by adverse possession against a registered proprietor except by an application under s 45D. No avenue provided by s 45D was applicable in the present case for various reasons, including that subs (1)-(2) relate only to possession which commenced after the land was brought under the provisions of the Act by the creation of a limited folio, and the disputed land is not “a whole parcel of land” pursuant to subs (1)(a) ([25], ([85]-[87], [90], [196]-[199]).
The effect of s 28U(2) and s 45C
(iv) Brereton JA and Simpson AJA: However, by s 45C(2), s 45C(1) does not prevent acquisition of title by reason of adverse possession commencing before the creation of a qualified or limited folio. Section 45C(2) preserves common law claims; it does not revive a right previously abolished by the former s 45, because it applies to land, being limited title land, which was, until brought under the RP Act in a qualified or limited portfolio, always amenable to a claim for title by adverse possession. Because the respondent was in possession since before the creation of the limited folio, subs (1) of s 45C did not prevent the respondent’s acquisition of possessory title. The essential question was whether s 45C(2) created an exception to indefeasibility of the appellant’s title ([87]-[88], [204], [209]-[210]).
(v) Brereton JA: The effect of s 28U(2) of the RP Act is that, notwithstanding the general indefeasibility provision in s 42(1), the title of a registered proprietor of land is subject to an adverse interest in land which has been incorrectly included in a limited folio by any wrong description. In the context of the present case, such a “wrong description” exists if the description of the land in the limited folio does not reflect occupation boundaries, with the result that it includes land in which a person other than the registered proprietor has an existing possessory interest, whether that claim is crystallised or inchoate. This exception applies to the respondent, who had such an interest in the land when it was brought under the RP Act in 2005 ([127], [161], [163]).
(vi) Simpson AJA: The s 28U(2) exception to indefeasibility did not apply because there was no “wrong description”. The respondent had not acquired possessory title to the disputed land at the time of the creation of the limited folio in September 2005, having been in possession only since January 2005, or at earliest May 2002, well short of the 12 years stipulated by the Limitation Act ([201]-[202]).
(vii) Basten JA (dissenting): Although s 45C(2) limits the exclusive operation of Pt 6A of the RP Act with respect to possessory applications for qualified or limited folios, that provision does not affect the operation of any other provision of the Act; the principle of indefeasibility of title guaranteed by s 42 remains paramount, qualifications to which should not be readily accepted in the absence of clear legislative intention. Section 28U(2) provides no exception to indefeasibility in the present case because there was no mistake or wrong description in the September 2005 conversion action, the respondent having at that time no interest in the disputed land, and only, as the respondent submits, an inchoate claim ([32]-[33], [35], [37]-[40]).
Read the decision on the NSW Caselaw website.
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| Choi v Commissioner of Police, New South Wales Police [2021] NSWCA 113
31 May 2021 - Macfarlan and McCallum JJA
In sum: The Court of Appeal dismissed the summons of the applicant, who sought leave to appeal from a decision of the NCAT Appeal Panel. The Appeal Panel had refused the applicant leave to appeal from the decision of the Tribunal on grounds other than questions of law, refused her applications to extend time to appeal from interlocutory decisions and otherwise dismissed the appeal. The Court found that there was no merit in the applicant’s application.
Facts: The applicant made an application under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) to which the respondent (the Commissioner) granted partial access, producing several documents in redacted form and otherwise determining that it did not hold the information sought. The applicant brought proceedings at the Tribunal seeking review of that decision, and the Tribunal affirmed the Commissioner’s decision. On appeal to the NCAT Appeal Panel, the applicant was refused leave to appeal on grounds other than questions of law, the applicant’s applications to extend time to appeal from interlocutory decisions were refused and the appeal was otherwise dismissed ([1]-[2], [8]).
Held (dismissing the summons seeking leave to appeal):
(i) The applicant sought to have set aside an interlocutory decision prior to the Tribunal hearing, which acceded to the Commissioner’s request for an extension of time in which to comply with procedural directions. The Court approved the decision of the Appeal Panel to refuse the appeal, on the basis that the decision had caused no prejudice to the applicant, and had in any event been superseded by subsequent orders and the Tribunal’s final decision ([9]).
(ii) The Tribunal was correct to uphold the Registrar’s refusal to issue seven summonses to give evidence at the Tribunal hearing on behalf of the applicant. The summonses lacked a legitimate forensic purpose and instead sought to conduct a “de facto review” of the investigation undertaken by police. Although the applicant claimed that, in challenging the reasonableness of that decision on appeal, a question of law was raised, the questions raised were in reality questions of fact concerning findings as to the applicant’s purpose in seeking the issue of the summonses. The applicant’s submission that the Tribunal’s decision to address the review application with the substantive issues was a “decision” within the meaning of s 5(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) raises a question of law; however it is not one that warrants a grant of leave, given that it lacks merit and the direction has been superseded by the determination of the application on its merits by the Tribunal ([10]-[13]).
(iii) The applicant submitted that, having been appointed a guardian ad litem in previous matters before the Tribunal, the Tribunal had no authority to hear the present matter without appointing a guardian ad litem. While this raises a question of law, it was not raised before the Tribunal or Appeal Panel, and did not warrant a grant of leave ([13]).
(iv) A decision not to adjourn is a discretionary decision, and the Tribunal may have regard to NCAT’s guiding principle under s 36 of the NCAT Act in making such a decision. An applicant cannot submit on appeal that it was not reasonable for the members constituting the Tribunal and Appeal Panel to deal with matters in the absence of any application for the members to recuse themselves ([15]-[16]).
(v) The applicant’s submission that the Commissioner holds information in the relevant police officers’ heads was rejected; the GIPA Act is not a vehicle for seeking answers to questions a person might have in regard to action taken by a government agency, or seeking an explanation by an agency as to why a particular action was taken ([21]).
(vi) The applicant’s submission that the Tribunal erred in refusing to refer the matter to the Minister under s 112 of the GIPA Act was rejected. Section 112 allows the Tribunal to refer a matter to the Minister or Information Commission on its own initiative if it is of the opinion that an officer of an agency has failed to exercise a function conferred under the GIPA Act in good faith. It does not confer on the applicant the right to apply for a matter to be referred to the Minister. Although construction of s 112 is a question of law, the factual findings of the Tribunal do not support any allegation of misconduct by the Commissioner, and accordingly the question is moot ([29]-[30]).
Read the decision on the NSW Caselaw website.
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| Federal Court of Australia
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| Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63
4 May 2021 - Perram, Moshinsky and Thawley JJ
In sum: The Full Court of the Federal Court dismissed an application for judicial review by the applicant, the Minister for Immigration (the Minister), and found that the Minister’s decision to grant the respondent a visa had been tainted by jurisdictional error. The exercise of the statutory power had been conditioned on a state of mind; this state of mind had been formed on the basis of an error of law.
Facts: The respondent entered Australia by boat in April 2013, and was taken to what was thought to be a “proclaimed port” for the purposes of s 5(5) of the Migration Act 1958 (Cth) (the Act). In August 2018 the Court found that the Minister had no power to appoint this location as a “proclaimed port”. This misunderstanding resulted in the respondent being erroneously assumed to be an “unauthorised maritime arrival” (UMA) pursuant to s 5AA of the Act; in the present proceedings it is common ground that, in light of the Court’s 2018 finding, the respondent is not, and has never been, an UMA. In 2014 the then Minister purported to exercise the power under s 195A of the Act to grant one-week temporary safe haven visas (TSHV) and longer term bridging visas to a cohort of persons in immigration detention, including the respondent. Under s 91K, the effect of a TSHV is to bar the holder from validly applying for any other visa. The decision was made on the assumption that all visa recipients, as UMAs, were already barred by s 46A from making valid visa applications while in detention ([1]-[5]).
In July 2018, the respondent’s application for a safe haven enterprise visa (SHEV) was refused by the Minister on account of invalidity, caused by the s 91K bar. The respondent applied for review of that decision by the Administrative Appeals Tribunal (AAT), submitting that he had never held a valid TSHV because the purported grant of that visa by the Minister was tainted by jurisdictional error. The AAT accepted this argument, set aside the Minister’s decision, and proceeded to determine the application on its merits. The AAT found the respondent was owed protection obligations under s 36(2)(a) of the Act and so qualified for a SHEV. The Minister sought judicial review of that decision ([6]-[9]).
Held (dismissing the application):
(i) Where the exercise of a statutory power is conditioned on the formation of a state of mind, the decision-maker may fall into jurisdictional error where the state of mind is formed on the basis of an error of law. It is a condition for a state of mind of “suspicion” or “satisfaction” that it be formed reasonably and on a correct understanding of the law. In exercising the power under s 195A, the only condition expressly stated is that the Minister considers it is in the public interest to do so. The state of mind of “thinking” is analogous to “suspicion” or “satisfaction”; it is therefore an implied condition that the state of mind be formed on the basis of a correct understanding of the law. Not only must s 195A be exercised with observance of the principles of natural justice, the consideration must proceed by reference to correct legal principles, correctly applied ([53]-[56]).
(ii) The Minister’s decision that it was in the public interest to grant the respondent a TSHV was based on the erroneous assumption that the respondent was an UMA, on the basis that the respondent had been taken to a “proclaimed port” under s 5(5); this was a legal error, and fundamental to the Minister’s decision ([51], [57]).
(iii) Further, the Minister may be taken to have proceeded on the incorrect basis that the respondent was already subject to a bar on making an application for a visa by reason of s 46A(1), and the effect of granting a TSHV would merely be to substitute one statutory bar for another ([52], [58]).
(iv) Whether or not an error of law in relation to an administrative decision is jurisdictional will depend on matters including the construction of the relevant power and the circumstances of the exercise of power. In the present case, the seriousness of the errors of law and their close connection to the decision to grant a TSHV mean the errors were jurisdictional ([59]).
Read the decision on the Federal Court of Australia website.
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| Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 81
26 May 2021 - McKerracher, White and Stewart JJ
In sum: The Full Court of the Federal Court refused the interlocutory application of the appellant, who sought an order that the Court replace his name on the Court file and in the Court’s reasons for judgment with a pseudonym.
Facts: The appellant was convicted of various criminal offences, including several unlawful and indecent assaults and a sexually based offence against a minor; consequently the respondent (the Minister) decided to cancel the appellant’s visa. The appellant appealed the visa cancellation and sought judicial review of the Minister’s decision. The appellant sought an interlocutory order from the Court granting him a pseudonym, submitting that this was necessary to protect his reputation and enable him to rebuild his life once he was deported back to England ([1]-[2]).
Held (dismissing the interlocutory application):
(i) The concept of a pseudonym has a particular significance and meaning in the migration context in relation to protection visa applicants under s 91X of the Migration Act 1958 (Cth), however the Court has power to allocate a pseudonym in other circumstances by way of Pt VAA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) ([8]).
(ii) The appellant was required to demonstrate that a non-publication order with respect to his identity was necessary to prevent prejudice to the proper administration of justice. The word “necessary” is a strong word that suggests Parliament was not dealing with trivialities; it is insufficient that the order is merely convenient, reasonable or sensible. Mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears are not sufficient ([10], [13]-[14]).
(iii) A statutory consideration in assessing whether a non-publication order should be made is that the primary objective of the administration of justice is to safeguard the public interest in open justice: FCA Act, s 37AE. The Court is not permitted to undertake balancing exercises, weighing up the interests of open justice versus any potential prejudice. The Court’s discretion is confined to an assessment of whether or not the applicant has satisfied the threshold of demonstrating that an order is necessary to prevent prejudice to the proper administration of justice ([11], [15]).
(iv) Although the appellant’s fears for his ability to settle and secure work in the United Kingdom were not without substance, the appellant’s position could not be considered as any different to that of any other person who is convicted of a criminal offence, which may result in increased difficulty in obtaining employment. The possibility that the appellant’s convictions may become known to the public and impact his life has not in the past, and does not now, provide any basis for departing from the principle of open justice ([16]).
Read the decision on the Federal Court of Australia website.
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| | MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17
19 May 2021 - Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ
In sum: The High Court dismissed an appeal by the appellant, who sought judicial review of the respondent’s decision to cancel his visa. The appeal concerned the threshold requirement of “materiality”, which is ordinarily required to exist for a breach of an express or implied condition of a conferral of statutory decision-making authority to result in jurisdictional error.
Facts: The appellant was refused a refugee visa by the respondent (the Minister). The appellant appealed to the Refugee Review Tribunal, which received relevant documents from the Secretary of the Department of Immigration and Border Protection (the Secretary) pursuant to s 418(3) of the Migration Act 1958 (Cth). Accompanying these documents was a letter notifying the Tribunal under s 438(2)(a) that s 438(1)(b) applied to information contained in specified documents. By way of advice under s 438(2)(b), the letter expressed the view that the information should not be disclosed to the appellant because the information had been “shared by Victoria Police with the Department for investigative purposes only”. Section 438(2)(b) has the effect that the Tribunal has no power to take information covered by the notification into account in making its decision unless it affirmatively exercises the discretion to do so conferred by s 438(3)(a), and has no power to disclose that information to the applicant for review unless it affirmatively exercises the discretion to do so conferred by s 438(3)(b). The notification included court-related documents, including a conviction for an offence of dishonesty. The existence of the notification and the information contained in the documents were not disclosed to the appellant, nor mentioned in the reasons for the Tribunal’s decision in favour of the respondent ([2], [6], [8]-[10], [14], [62]).
The appellant’s appeal to the Federal Circuit Court was dismissed; on appeal to the Federal Court, the appeal was reduced to a single ground: that the Tribunal’s decision had been affected by jurisdictional error in that the Tribunal had failed to comply with the rules of procedural fairness. The parties agreed that the Tribunal had breached an implied rule of procedural fairness, and were at issue only as to the materiality of that breach to the Tribunal’s final decision. The Federal Court found in the respondent’s favour and the appellant appealed to the High Court ([15]-[17]).
Held (dismissing the appeal unanimously):
(i) Kiefel CJ, Gageler, Keane and Gleeson JJ: The counterfactual question submitted by the appellant of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached, cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. The facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence ([23], [38], [68]).
(ii) Kiefel CJ, Gageler, Keane and Gleeson JJ: “Materiality” involves a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence, or non-existence, of a realistic possibility that the decision could have been different was explained to be a question of fact, in respect of which the plaintiff in an application for judicial review on the ground of jurisdictional error bears the onus of proof. The appellant must prove, on the balance of probabilities, the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition ([2], [39]).
(iii) Gordon, Steward and Edelman JJ: Once error is identified by an applicant, the onus of proving that the error is immaterial to the decision that was reached should be on the party who seeks to affirm the decision's validity: namely, the Executive. This reflects a key principle upheld by administrative law: that the Executive must be answerable to the public and be able to justify its actions ([90], [97]-[98], [123]).
(iv) Kiefel CJ, Gageler, Keane and Gleeson JJ: In the present case, there was no basis in the evidence to find, on the balance of probabilities, that the Tribunal did in fact take into account the evidence in the notification. The Tribunal’s breach of one procedural obligation by failing to disclose to the appellant the existence of the notification provides no foundation in the circumstances of the case for inferring that it breached others ([74]-[75]).
Read the decision on the High Court of Australia website.
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| | Decisions of Interest Bulletin
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| | Central Coast Council v Norcross Pictorial Calendars Pty Ltd [2021] NSWCA 75
CONTRACTS – construction – interpretation – joint venture agreement – third party – successor clause – “successor to a party” – whether the expression is wide enough to include nominee – where there was no contemplation work would be carried out by another – where there are no clear words to construe nomination as conferring rights and obligations – where third party acquired its rights as nominee under separate contract
CONTRACTS – construction – interpretation – reflective loss principle – exception – where company has no cause of action – where there is no prospect of double recovery
CONTRACTS – construction – interpretation – indemnities – “in respect of” – “loss” – whether indemnities extend to loss of diminution in value of shares in nominee as a result of nominee incurring costs for rectification |
| Maaz v Fullerton Property Pty Ltd [2021] NSWCA 79
BUILDING AND CONSTRUCTION – payment claim by builder – false statutory declaration in support of payment claim – statement by builder that all subcontractors paid – claim paid by principal – principal liable to unpaid subcontractors – Contracts Debts Act 1997 (NSW), s 5 – proceedings against builder for moneys paid by principal directly to subcontractors
EVIDENCE – admissibility – hearsay – exceptions – business records – where business records of subcontractor tendered to prove unpaid debt – whether authenticity of document may be determined on the basis of inferences drawn from its form, contents or source – whether production on subpoena necessary – provenance and accuracy of the documents not challenged
EVIDENCE – admissibility – business records –records of a party – whether records of third party warrant discretionary exclusion – whether weight sufficient to establish deceit
TORTS – deceit – misleading and deceptive conduct – false statutory declaration in support of payment claim – statement by builder that all subcontractors paid – statement known to be false – claim paid by principal – principal liable to unpaid subcontractors – loss suffered – payments to subcontractors recovered |
| JKL by his tutor Jennifer Thompson v Justice Health and Forensic Mental Health Network [2021] NSWCA 94
COURTS AND TRIBUNALS – Mental Health Review Tribunal – whether Tribunal’s power to transfer forensic patients into a mental health facility includes power to specify when transfer is to occur and to what particular mental health facility a patient is to be transferred to
MENTAL HEALTH – Mental Health Review Tribunal – jurisdiction – whether Mental Health Review Tribunal had power to order the transfer of a forensic patient to a mental health facility “when a bed becomes available” – whether the Tribunal took into account an irrelevant consideration when it had regard to the availability of beds at a specific mental health facility in the course of exercising its power to make a transfer order under s 48 of the Mental Health (Forensic Provisions) Act 1990 (NSW) – where the relevant statutory context supported considerations of “practicability” as being relevant to the exercise of the transfer power under s 48 of the Act
STATUTORY INTERPRETATION – jurisdiction – Mental Health Review Tribunal – whether Mental Health Review Tribunal had power to order the transfer of a forensic patient to a mental health facility “when a bed becomes available” – where the relevant statutory context supported considerations of “practicability” as being relevant to the exercise of the transfer power under s 48 of the Act
STATUTORY INTERPRETATION – jurisdiction – Mental Health Review Tribunal – whether power to transfer a patient to or from a mental health facility includes power to specify when such a transfer should occur – implied incidental power – source of power – extent of implied incidental power |
| Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 2) [2021] NSWCA 93
BUILDING AND CONSTRUCTION – contract – damages – defects – whether the contractor was responsible for defects in materials supplied by a third party – where the relevant contractual warranty was confined to “works required to be performed by the contractor”
BUILDING AND CONSTRUCTION – contract – termination – quantum meruit – whether the contract operated to generate release and waiver of subsequent claims for payment by the contractor – where the contractor had suffered irreversible detriment by incurring liability to pay for materials prior to the principal’s insistence upon strict adherence to the contract
BUILDING AND CONSTRUCTION – contract – variation – implied promise to pay – whether the works constituted “variations” as defined in the contract – where the principal requested that the contractor supply materials that it had originally insisted upon supplying itself – where written approval was sought by the contractor in respect of all other variation works
CONTRACTS – breach of contract – consequences of breach – right to damages – estoppel – promissory estoppel – whether it was unconscionable for the principal to resist payment for the performance of certain works – where the principal was positively encouraging the contractor to complete outstanding works – where such encouragement followed the principal’s purported departure from the assumption that it had approved these works
EQUITY – estoppel – promissory estoppel – general principles and maxims – equity will not permit detriment to be visited upon or remain with the party who has not been sufficiently clearly disabused of the counter-party’s intended departure from the relevant assumption inducing reliance
ESTOPPEL – promissory estoppel – detrimental reliance – whether the principal discharged its duty to inform the contractor labouring under an assumption that the basis for that assumption had “materially changed” – where such material change must be communicated in sufficiently clear terms – where the relevant communication did not expressly refer to or address the topic of the assumption – where the principal was positively encouraging the contractor to complete outstanding works in respect of materials that the principal knew it had originally undertaken to supply itself |
| He v Sun [2021] NSWCA 95
CONTEMPT – criminal contempt – where appellant engaged in conduct found to amount to a contumacious disregard of Court orders – where sentencing judge imposed a sentence of six weeks’ imprisonment – whether sentencing judge failed to consider possibility of suspending sentence for contempt – whether sentencing judge erred in failing to suspend the sentence – whether sentence was manifestly excessive
SENTENCING – criminal contempt – where sentencing judge imposed a sentence of six weeks’ imprisonment – whether sentencing judge erred in failing to suspend the sentence – power to suspend a sentence for criminal contempt in the Supreme Court’s civil jurisdiction – whether sentence was manifestly excessive |
| Housman v Camuglia [2021] NSWCA 106
CONTRACT - damages - claim for consequential loss - construction works caused damage to neighbour’s land - claim for lost rent - trial judge found apartments unlettable in light of damage to stairway - finding based on evidence of landlord and letting agent - no reference in reasons to unchallenged engineering evidence that stairway safe - whether reasons of trial judge inadequate - inutility of inadequate reasons as a ground where appeal is by way of rehearing - whether trial judge misused evidence admitted on limited basis - no error made out
APPEALS - requirement of leave - whether appellants required leave for separate challenge to costs order based on rejection of Calderbank offer in circumstances where there was an appeal as of right - construction of “an appeal from a judgment or order as to costs only” in District Court Act 1973 (NSW), s 127(2)(b) - history of s 127(2)(b) and s 101(2)(c) of Supreme Court Act 1970 (NSW) - history of United Kingdom antecedents - appellants entitled to challenge special costs order as of right
COSTS - Calderbank letter - whether error in finding that appellants had unreasonably rejected offer - significance of factual error in letter - significance of offer being rejected before service of all evidence - no error made out |
| Sidoti v Hardy [2021] NSWCA 105
LAND LAW – Adverse possession – Actual possession – Old system title – Conversion to Torrens title – Limited title – Indefeasibility of title – Exceptions to indefeasibility – Where successful claim at trial in respect of adverse possession of small portion of a ‘dunny lane’ commencing before creation of limited folio – Whether statutory possessory application over Torrens title land able to be made – Alternatively, whether adverse possession claims preserved at common law by reason of possession for any length of time commencing prior to creation of folio – Whether wrong description of parcel or boundaries in circumstances where adverse possessory claim inchoate but not crystallised at time of conversion – Appeal dismissed
LIMITATION OF ACTIONS – Actions to recover land – Adverse possession – Interaction of Limitation Act 1969 (NSW), ss 27 and 65, with Real Property Act 1900 (NSW), s 45C
STATUTORY INTERPRETATION – Interpretation of Real Property Act 1900 (NSW) – Extrinsic materials – Explanatory memoranda and notes – Legislative history – Registrar-General’s guidelines – Second reading speeches
MORTGAGES AND SECURITIES – Mortgages – Duties, rights and remedies of mortgagee – Right to notice of proceedings in which orders might be made affecting mortgagee’s interest – Where no notice given and no application by mortgagee to set aside orders below – Where application may not succeed – Where if successful, ultimate result unlikely to be different – Where impact on value of mortgagee’s security likely de minimis – Absence of notice not decisive of appeal
APPEALS – Leave to appeal – Whether leave required – Monetary threshold – Whether threshold denotes value of whole parcel of land or disputed portion only – Where questions of principle and public importance as to Torrens system also raised – Leave granted |
| MacDonald v Yakiti Pty Ltd & Ors [2021] NSWCA 114
UNCONSCIONABLE CONDUCT — Where appellant excluded from negotiations after admission to hospital — Australian Securities and Investments Commission Act 2001 (Cth), ss 12CA, 12CB — Whether respondents took unconscientious advantage of the appellant’s disabling condition — Australian Securities and Investments Commission Act 2001 (Cth), s 12GM(7) — Whether appellant suffered any compensable loss |
| | 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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