NCAT Legal Bulletin Issue 5 of 2023 | 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 High Court of Australia, the Court of Appeal of New South Wales, the Court of Appeal of Victoria, and the New South Wales Supreme Court published in September, October and November 2023.
AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors [2023] HCA 26: The High Court, by majority, allowed two appeals from the Full Court of the Federal Court. The Full Court did not have jurisdiction to determine the appeals before it, having incorrectly approached the question of whether it should determine the appeals as a matter of discretion, not jurisdiction. Subsequent events had deprived the primary judge’s orders of any continuing or operative legal effect. As there was no justiciable controversy before the Full Court, there was no “matter” within the meaning of Ch III of the Constitution and the Full Court did not have jurisdiction.
Lang v The Queen [2023] HCA 29: The High Court, by majority, dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland, which had dismissed an appeal by the appellant against his conviction for murder. The various judgments of the Court provided consideration of the common law principles which bore on the issue of admissibility of the expert’s evidence.
Young v Chief Executive Officer (Housing) [2023] HCA 31: The High Court allowed an appeal from a decision of the Court of Appeal of the Supreme Court of the Northern Territory, which had construed s 122(1) of the Residential Tenancies Act 1999 (NT) (RTA) as importing principles of remoteness such that those principles operated to exclude compensation for distress or disappointment arising from non-compliance with a term of the tenancy agreement. Three judges allowed the appeal on the basis that Court of Appeal erred in its construction of s 122. Two judges allowed the appeal on the basis that, in the application of general contract law rules, an object of the term of the tenancy agreement created by s 49(1) of the RTA was to provide the tenant with the peace of mind arising from secure premises, and the right to obtain compensation for breach of that obligation pursuant to s 122 included the disappointment and distress suffered.
Independent Liquor & Gaming Authority v 4 Boys (NSW) Pty Ltd [2023] NSWCA 210: The Court of Appeal granted leave to appeal and allowed an appeal from the Supreme Court, which had found that s 48(1) of the Interpretation Act 1987 (NSW) confers a power to revoke a previous decision made under a statutory power or function. The Court held that s 48(1) does not have the effect of implying into every statutory power or function a power to revoke a previous exercise of that power or function.
Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215: The Court of Appeal considered the principles of constructive failure to exercise jurisdiction and the scope of the duty to consider in the context of s 22(2) of the Building and Construction Industry Security of Payment Act 1999 (NSW). The Court held that there are likely to be few cases in which an applicant for judicial review could establish a breach of the duty to consider the matters set out in that sub-section. A failure to refer to a submission on a centrally important matter, clearly articulated and based on uncontested facts, may demonstrate a failure to consider at all, but this is likely to be a rare case.
GR v Secretary, Department of Communities and Justice [2023] NSWCA 239: The Court of Appeal granted leave to appeal and allowed an appeal from a decision of the Appeal Panel, which had refused leave to appeal from a refusal of a joinder application in the Guardianship Division of the Tribunal. The Court declared that the Appeal Panel erred in not accepting that the Tribunal’s decisions refusing to adjourn the hearing of the joinder application and refusing the joinder application in GR’s absence were legally unreasonable and resulted in a denial of procedural fairness.
Granville Hotel Operations Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCA 248: The Court of Appeal granted leave to appeal but dismissed an appeal from a dismissal of an application for judicial review. The Court, without resolving the issue, assumed that the Interpretation Act 1987 (NSW) is capable of applying to a policy-type ministerial guideline as an “instrument”. In light of s 5(2) of that Act, the Court held that where a non-legislative legal instrument is a practical document not drafted by parliamentary counsel, less may be required to manifest a contrary intention than might be required in other contexts.
Caspersz v Garry & Warren Smith Pty Ltd [2023] VSCA 264: The Victorian Court of Appeal refused leave to appeal from a decision of the President of VCAT to refuse to reconstitute the Tribunal pursuant to s 108 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The power in s 108 was not available, as no hearing of the proceeding had commenced and the proceeding had not been listed before a member – the Tribunal had not been constituted to hear the proceeding and thus could not be “reconstituted”.
The Owners Strata Plan 64757 v Sydney Remedial Builders Pty Ltd [2023] NSWSC 1127: The Supreme Court held that the date of “completion”, as provided for in s 3B(1) of the Home Building Act 1989 (NSW) (HBA), is to be determined by reference to contractual construction, rather than statutory construction. In s 3B(2) and (3), it is the HBA, rather than the contract, which identifies when “practical completion” has occurred.
Trainor v Harness Racing New South Wales & Anor [2023] NSWSC 1278: The Supreme Court considered, but did not determine, the application of the majority’s reasoning in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 as to how recusal applications should be determined in circumstances where the panel is not constituted by judicial officers but by stewards.
| | | AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 6 September 2023 - Kiefel CJ, Gordon, Edelman, Steward, Gleeson JJ
In sum: When the Full Court of the Federal Court determined the appeals before it, the orders of the primary judge had ceased to have any continuing effect and had been rendered moot. There was no controversy over the continuing effect of the primary judge’s orders on the parties’ rights, duties or liabilities, as the Minister’s subsequent determination under the Migration Act 1958 (Cth) had effectively quelled the controversy between the parties and deprived the orders of any operative effect. The Full Court incorrectly approached the question of whether it should hear the appeals as one of discretion, rather than jurisdiction. The Full Court did not have jurisdiction – there was no matter within the meaning of Ch III of the Constitution, as there was no longer a justiciable controversy before the Court. The High Court noted that it was inappropriate for the Commonwealth parties to seek to appeal the orders on the basis of some wider public importance, to seek what was in effect an advisory opinion. An appeal is against orders, not reasons for judgment. As such, the Full Court did not have jurisdiction when it determined the appeals and the High Court allowed the appeals, setting aside the Full Court’s orders.
Catchwords: CONSTITUTIONAL LAW (CTH) – Judicial power of the Commonwealth – Jurisdiction – Appeals – Meaning of "matter" – Where appellant commenced proceedings in Federal Court of Australia seeking mandamus to require Secretary of Department of Home Affairs to remove him from Australia to a regional processing country under s 198AD(2) of Migration Act 1958 (Cth) – Where Federal Court made orders declaring s 198AD(2) of Act applied to appellant, requiring Secretary to perform duty under s 198AD(2) as soon as reasonably practicable, and requiring appellant be detained in immigration detention at a residential address pending removal to a regional processing country – Where Minister for Home Affairs subsequently exercised power under s 198AE(1) of Act to determine duty under s 198AD(2) did not apply to appellant – Where respondents sought to appeal primary judge's orders to Full Court of the Federal Court of Australia – Where at time of appeals primary judge's orders did not have any operative legal effect – Whether there was a "matter" within meaning of Ch III of Constitution at time Full Court made orders determining appeals – Whether there was a justiciable controversy before Full Court – Whether Full Court had jurisdiction to determine appeals.
WORDS AND PHRASES – "advisory opinion", "appellate jurisdiction", "federal jurisdiction", "immediate right, duty or liability", "judicial power of the Commonwealth", "jurisdiction", "justiciable controversy", "matter", "standing".
Held (allowing the appeals): (i) Link to the High Court’s case summary is here. | Lang v The Queen [2023] HCA 29 11 October 2023 - Kiefel CJ, Gageler, Gordon, Edelman, Jagot JJ
In sum: At issue on appeal was the admissibility of certain expert evidence, in particular, whether the expert’s opinion was substantially based on his specialised knowledge. Kiefel CJ and Gageler J provided an elaboration on the common law principles bearing on the admissibility of the expert’s evidence (at [4]-[17]). Note: Further commentary at [221]-[229] per Gordon and Edelman JJ; [428]-[437] per Jagot J.
In some cases, expert evidence can be no more than providing a technical description of events and processes in which the expert was involved. As a result, expert evidence does not need to be opinion evidence, but, subject to limited exceptions, opinion evidence can only be expert evidence. This is justified by the nature of an opinion. The principles stated in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743-744, acknowledged and applied in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at 604, also apply to the determination of the admissibility of an expert opinion at common law. At common law, it remains a condition that the opinion be demonstrated to be based on specialised knowledge or experience beyond the common knowledge and experience attributable to the tribunal of fact. This requirement is not absolute. The uniform evidence legislation provides that it is enough that the opinion be demonstrated to be based substantially on that specialised knowledge. This recognises that specialised knowledge cannot be wholly divorced from common or ordinary knowledge.
The question as to whether a process of reasoning engaged in by an expert is sufficient to demonstrate that his or her opinion is the product of the application of specialised knowledge goes inexorably to the “admissibility” of the opinion as distinct from its “weight”. That question, alongside the question of the extent to which a process of reasoning engaged in by an expert by the application of specialised knowledge is clear and convincing, can also go to the utility or value of the opinion. However, the latter question does not go to the point of admissibility.
Catchwords: CRIMINAL PRACTICE – Appeal – Unreasonable verdict – Independent assessment of evidence – Where appellant charged with and convicted of murder – Where appellant appealed conviction on ground that verdict unreasonable or could not be supported having regard to whole of evidence – Where deceased's injuries were either self-inflicted or caused by appellant – Where only hypothesis consistent with appellant's innocence was deceased's injuries were self-inflicted – Whether reasonable possibility upon whole of evidence that deceased died by suicide.
EVIDENCE – Criminal trial – Admissibility – Expert opinion evidence – Where opinion evidence adduced from forensic pathologist that injuries occasioning death more likely inflicted by another person than self-inflicted – Whether opinion based on expert knowledge – Whether wrong decision of question of law to admit evidence.
WORDS AND PHRASES – "admissibility", "body of knowledge or experience", "expert evidence", "inadmissible", "independent assessment of the evidence", "miscarriage of justice", "opinion", "specialised knowledge", "training, study or experience", "unreasonable verdict", "wholly or substantially".
Held (refusing the appeal): (i) Link to the High Court’s case summary is here. | Young v Chief Executive Officer (Housing) [2023] HCA 31 1 November 2023 - Kiefel CJ, Gageler, Gordon, Edelman, Gleeson JJ
In sum: Kiefel CJ, Gageler and Gleeson JJ held that s 122(1) of the Residential Tenancies Act 1999 (NT) (RTA), which relevantly provides for the award of compensation for loss or damage suffered as a result of failure to comply with the tenancy agreement, does not import common law principles of remoteness. The three judges held that the NT Court of Appeal had erred in confining the measure of damages that could be ordered by reference to that which could be ordered by a court for breach of that term of the tenancy agreement in a common law action for breach of contract. Indeed, s 122 of the RTA leaves any remedy at common law or in equity untouched and provides an additional mechanism by which statutory compensation can be obtained, the measure of which is provided by the RTA itself. In this case, the causal connection required by the word “because” in s 122(1) was readily satisfied by the connection between the landlord’s breach and the distress and disappointment suffered by Ms Young. Ms Young’s feeling of insecurity arising from the landlord’s failure to provide her with a back door for 68 months was the obverse of the security which the landlord was obligated to provide by s 49(1) of the RTA.
Catchwords: RESIDENTIAL TENANCIES – Where s 122(1) of Residential Tenancies Act 1999 (NT) ("Act") relevantly provided Civil and Administrative Tribunal of the Northern Territory ("Tribunal") may order compensation for loss or damage suffered by landlord or tenant under tenancy agreement be paid by other party because other party failed to comply with agreement – Where tenancy agreement between parties prescribed by Act – Where term of tenancy agreement imposed by s 49(1) of Act required landlord to take reasonable steps to provide and maintain locks and other security devices necessary to ensure premises and ancillary property were reasonably secure – Where premises had no back door for 68 months – Whether Tribunal empowered by s 122(1) to order landlord compensate tenant for loss or damage by way of distress and disappointment due to insecurity tenant felt because of landlord's breach of tenancy agreement – Whether s 122 incorporated common law principles of remoteness – Whether common law principles of remoteness precluded tenant from recovering compensation for distress and disappointment unless consequent upon physical inconvenience.
WORDS AND PHRASES – "breach of contract", "causation", "compensation for loss or damage", "damages", "disappointment", "distress", "insecurity", "landlord", "peace of mind", "reasonable steps", "reasonably secure", "remoteness", "residential premises", "residential tenancy", "scope of duty", "security device", "statutory compensation", "tenancy agreement".
Held (allowing the appeal): (i) Link to the High Court’s case summary is here. | Court of Appeal of New South Wales | Independent Liquor & Gaming Authority v 4 Boys (NSW) Pty Ltd [2023] NSWCA 210 7 September 2023 - Meagher and Beech-Jones JJA, Basten AJA
In sum: Section 48(1) of the Interpretation Act 1987 (NSW), which states that “if an Act … confers or imposes a function on any person or body, the function may be exercised … from time to time”, does not have the effect of implying a power of revocation into every statutory power or function to which it applies. Section 48 does not include or confer any power – it informs the construction of the statutory functions to which it applies. The legislative history of the provision indicates it was introduced to displace the application of the common law doctrine that a statutory power is exhausted by its first exercise. There is a difference between a fresh exercise of a power or function which has, or may have, the effect of reversing an earlier exercise of that power or function, and implying into every power or function a power to rescind an earlier exercise of that power or function. Whether the practical effect of the re-exercise of a function or power results in the reversal of an earlier exercise of the same power or function depends on the nature and context of the statutory power and the circumstances of the case. Any re-exercise of the power of approval by the appellant under ss 19(2)(a) or 34(4) of the Gaming Machines Act 2001 (NSW) could not have the effect of revoking or reversing its previous approval.
Catchwords: LICENSING — Gaming Machines Act 2001 (NSW) — gaming machine entitlements (“GMEs”) — gaming machine threshold — application to Independent Liquor & Gaming Authority (“Authority”) to increase gaming machine threshold from 20 to 24 — application accompanied by “Local Impact Assessment” (LIA) — application and LIA approved — subsequent applications to transfer seven GMEs — applications approved and gaming machine threshold increased from 24 to 27 — application to Authority seeking revocation of earlier approval — power to revoke earlier approval of LIA — whether power to revoke earlier approval of increase in threshold — whether power to revoke earlier approval of transfer of GMEs — power of Authority to reduce threshold — whether power to “set” threshold under s 32(1) of Gaming Machines Act could be re-exercised from time to time to permit increase or decrease in threshold.
ADMINISTRATIVE LAW — Interpretation Act 1987 (NSW), s 48(1) — exercise of function from time to time as occasion requires — whether s 48(1) confers power to revoke previous decision made under a statutory power — whether s 48(1) requires every function to which the provision is directed to be interpreted as including power or authority to revoke earlier exercise of that function — effect of re-exercise of function or power may be to reverse or revoke earlier exercise of power — power conferred by s 19(2)(a) of Gaming Machines Act to approve transfer of GMEs does not include power to revoke earlier approval of transfer of GMEs — power conferred by s 34(4) of Gaming Machines Act to approve increase in threshold does not include power to revoke earlier approval of increase in threshold — in the alternative Gaming Machines Act manifests contrary intention to implication of any such powers of revocation.
Held (granting leave to appeal; allowing the appeal): (i) Link to the Court of Appeal’s case summary is here. | Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215 12 September 2023 - Ward ACJ, Payne JA, Basten AJA
In sum: Whilst the distinction may not matter in many cases, there is a distinction in principle between a failure to address a claim, and a failure to consider material which must be considered in order to address a claim or a failure to have regard to material which was said to support the claim and which the statute obliged the decision-maker to consider. The duty to consider operates differentially depending on the context. A party that challenges a decision is not to identify whether the decision-maker’s mental process was an “active intellectual process” or a “proper, genuine and realistic consideration” (those terms being glosses which specify the intensity of consideration) but should identify a basis on which it could be said that consideration did not occur. The failure to identify a particular claim, response or submission in reasons will not in itself demonstrate a failure to consider – reasons are not necessarily (or even usually) a comprehensive statement of all aspects of a decision-maker’s thinking. There are a range of possible explanations for the absence of reference to a particular submission in a set of reasons, only one of which is that the material was not considered. The scope of a decision-maker’s reasons necessarily reflects the practical circumstances in which the decision-maker is operating.
Catchwords: ADMINISTRATIVE LAW – Judicial review – content of obligation “to consider” – whether failure specifically to refer to a matter reveals failure to consider that matter – scope of obligation to consider under Building and Construction Industry Security of Payment Act 1999 (NSW), s 22(2).
BUILDING AND CONSTRUCTION – adjudication – judicial review – whether adjudication affected by jurisdictional error – principles of jurisdictional error under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether jurisdictional error to fail to investigate “true merits” of a payment claim – where adjudicator’s task limited to deciding dispute on restricted materials.
BUILDING AND CONSTRUCTION – adjudication – judicial review – setting aside part of determination – meaning and operation of s 32A of the Building and Construction Industry Security of Payment Act 1999 (NSW) – whether adjudicator entitled to fees after making adjudication affected by jurisdictional error – whether adjudicator’s decision to apportion costs affected by jurisdictional error.
Held (dismissing the appeal; allowing the cross-appeal): (i) Link to the Court of Appeal’s case summary is here. | GR v Secretary, Department of Communities and Justice [2023] NSWCA 239 6 October 2023 - Adamson JA, Basten and Griffiths AJJA
In sum: A substantial practical injustice (within the meaning of Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2023] HCA 6) resulted from the Tribunal’s refusal to adjourn hearing a mother’s joinder application and subsequent purported dealing with her application to be appointed guardian in the substantive hearing. The refusal to adjourn was itself procedurally unfair and legally unreasonable in the Minister for Immigration and Citizenship v Li (2013) 249 CLR 221; [2013] HCA 18 sense.
Facts: On 13 April 2022, an officer of the Department of Communities and Justice filed an application in the Guardianship Division of the Tribunal for the appointment of a guardian and financial manager for AB, to take effect upon his majority. A directions hearing was listed for 9 June 2022. On 8 June 2022, GR (AB’s mother) applied to be joined as a party to the proceedings but sought that the directions hearing be adjourned on the bases that there was a decision pending in the Court of Appeal against orders allocating parental responsibility for AB to the Minister, and that GR would be in a hearing in the Children’s Court on 9 June 2022 and could not appear in the Tribunal. GR was informed by the Tribunal that the directions hearing would proceed on 9 June; GR requested dial-in instructions. On 9 June, GR emailed the Tribunal, informing it she was not contactable because she was on a train back from court and had not been provided with dial-in details. At the directions hearing, the Tribunal telephoned GR, which went to voice message. The Tribunal then dealt with GR’s application for joinder in her absence and refused the application. The substantive hearing as to AB’s guardianship was heard on 20 July 2022. GR participated (although not as a party) and sought an adjournment because she had not been served with the application or supporting evidence. The Tribunal refused the adjournment request but heard GR on her application to be appointed AB’s guardian. The Tribunal appointed the Public Guardian as AB’s guardian and made a financial management order. GR appealed to the Appeal Panel, challenging the guardianship and financial management orders and the refusal of her joinder application. The Appeal Panel rejected GR’s submission that the Tribunal’s joinder decision was a denial of procedural fairness; it refused leave to appeal against the joinder decision and dismissed the appeal.
Held (granting leave to appeal and allowing the appeal in relation to the Appeal Panel’s orders concerning the joinder decision): (i) GR argued that the Appeal Panel fell into jurisdictional error in not finding that she had been denied procedural fairness by the Tribunal. Adamson JA held that because GR had applied to be joined to the proceedings, she had an interest to be heard; the Tribunal had a corresponding duty to accord her procedural fairness before determining her application against her. GR’s application was a significant one with considerable ramifications. The potential for GR to assist the Tribunal to determine AB’s interests could be inferred from the nature of the proceedings and the fact that GR is AB’s mother. Basten AJA noted that the Tribunal had treated GR as not entitled to request an adjournment; to treat GR as lacking “standing” to seek an adjournment of her own application was evidently a denial of an important power of the Tribunal (at [93], [95], [166]).
(ii) Although she was not a necessary party, GR was plainly a proper party to the proceedings. There was no apparent reason why the directions could not have been fixed for a later date when GR was available, where she had provided a good reason for her unavailability and much was at stake in her application – the loss of the additional rights accorded to parties. Further, there was no evidence of any urgency in dealing with GR’s joinder application. The Tribunal’s failure to adjourn the directions hearing to a time at which GR was available was a denial of procedural fairness and was legally unreasonable in the Minister for Immigration and Citizenship v Li (2013) 249 CLR 221; [2013] HCA 18 sense (at [96]-[99], [174], [180], [209]).
(iii) The Tribunal failed to address GR’s concern, which was to have the benefit of the entitlements of a party, including being provided with documents in advance of the hearing, being permitted to participate fully in the hearing, including the opportunity to adduce evidence and with leave require witnesses for cross-examination, and to appeal if necessary. This resulted in a “practical injustice” within the meaning of Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]. In the circumstances, it was inappropriate to reject GR’s joinder application, at least without according her a hearing. The refusal of the adjournment was a manifestly unreasonable decision in the circumstances. When the Tribunal subsequently purported to deal with GR’s application to be appointed as AB’s guardian by rejecting it in the substantive hearing, despite GR not being a party, the practical injustice was amplified (at [98], [100]-[102], [178], [209]).
(iv) The Appeal Panel’s decision, in finding that there was no denial of procedural fairness, was erroneous. Although the Appeal Panel did not have the benefit of reviewing the transcript of the directions hearing, the factors considered by the Appeal Panel as justifying the refusal of the joinder application did not, individually or cumulatively, provide a basis for the refusal of the adjournment application. Its summary dismissal was demonstrative of the substantial practical injustice GR suffered as a consequence of not having been joined to the proceedings and having her application to be appointed as AB’s guardian rejected when she was not a party. The Court granted leave to appeal against the Appeal Panel’s decision pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) and set aside the relevant orders on the ground that they were the result of procedural unfairness to GR. In light of the imminent review of the guardianship order, the matter was not remitted to the Appeal Panel; in the circumstances, the Court made a declaration as to the Appeal Panel’s error (at [103]-[113], [170]-[173], [180]-[183], [210], [212]-[217]). | Granville Hotel Operations Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCA 248 20 October 2023 - Bell CJ, Kirk JA, Griffiths AJA
In sum: The Court of Appeal assumed, without deciding, that the Interpretation Act 1987 (NSW) is capable of applying to the construction of ministerial guidelines as an “instrument”. However, it remains necessary to determine whether a “contrary intention appears in this Act or in the Act or instrument concerned” as provided for in s 5(2) of the Interpretation Act. Relevant considerations include the terms and nature of the provision or clause being construed, and the nature of the document in question. Whilst no assumption could be made that either the Interpretation Act or broader principles of statutory construction were part of the context which the drafter had in mind when producing the document, that does not necessarily mean that the Interpretation Act should be taken not to apply. However, where it is apparent that a non-legislative legal instrument is a practical document not drafted by parliamentary counsel, less may be required to manifest a contrary intention than might be required in other contexts. In this case, no assumption could be made that the drafter in fact had principles of statutory construction in mind when drafting the guideline.
Catchwords: ADMINISTRATIVE LAW – Statutory construction – Relevant considerations – Gaming Machines Act 2001 (NSW) ss 39-40 – Application for reduction of mandatory shutdown period – Whether Authority misconstrued Ministerial Guideline – Whether the term “venues” in the Ministerial Guideline encompassed the singular – Whether Authority was wrong to reject application.
STATUTORY INTERPRETATION — Interpretation Act 1987 (NSW) s 8(c) — Whether the Interpretation Act applies to Ministerial Guideline — Interplay between common law rules on statutory interpretation and drafters of legislative instruments — Courts drawing inferences as to likely intentions of drafters — Whether the plural encompasses the singular. | Mao v Bao [2023] NSWCA 278 21 November 2023 - Ward ACJ, White and Mitchelmore JJA
Catchwords: EQUITY – Set-off – Where the appellant had been ordered to account to the respondent in respect of moneys drawn under a mortgage facility secured over property held for the respondent’s benefit and the respondent had been ordered to re-pay the appellant sums owing under a loan unrelated to the mortgaged property – Whether the two claims were sufficiently closely connected that one could be said to impeach the other in the sense required for an equitable set-off.
EQUITY – Whether Brickenden principle (see Brickenden v London Loan & Savings Co [1934] 3 DLR 465) that prohibits speculation by defaulting fiduciaries as to counterfactuals had the default not occurred has application to the issues raised as to equitable set-off in the present case.
Held (allowing the appeal): (i) Link to the Court of Appeal’s case summary is here. | Court of Appeal of Victoria | Caspersz v Garry & Warren Smith Pty Ltd [2023] VSCA 264 31 October 2023 - Nial JJA
In sum: Section 108 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), which relevantly provides that the President of VCAT may, at any time before the conclusion of a hearing of a proceeding, reconstitute the Tribunal on a party’s application, applies where a member has been allocated to hear the proceeding. Where no hearing of the proceeding has commenced and the proceeding has not been listed before a member, the proceeding has not been constituted for the purpose of a hearing and no issue of reconstitution can arise. In this case, the President had concluded that the applicant had demonstrated a course of conduct “to attempt to avoid his proceeding being heard by anyone who makes an adverse finding against him no matter how meritorious that adverse finding may be”. The power in s 108 is not intended to allow a party to seek to veto or influence the administrative decision to allocate a member to hear and determine a proceeding. To allow otherwise would undermine the independence and impartiality of the Tribunal.
Catchwords: PRACTICE AND PROCEDURE – Refusal to reconstitute Victorian Civil and Administrative Tribunal – Whether reconstitution only available when actual hearing of proceeding on foot – Power to reconstitute not intended to allow party to seek to veto or influence administrative decision to allocate a member to hear and determine proceeding – Power applies where member has been allocated to hear proceeding – No substantive hearing had been allocated to a member – Refusal to reconstitute overtaken by subsequent recusal applications – Recusal applications should be made in usual way and with a proper basis – Application for leave to appeal refused. | Supreme Court of New South Wales | The Owners Strata Plan 64757 v Sydney Remedial Builders Pty Ltd [2023] NSWSC 1127 18 September 2023 - Rees J
In sum: When determining the date of completion of residential building work pursuant to s 3B of the Home Building Act 1989 (NSW), the date of “completion” in s 3B(1) is to be determined by reference to contractual construction rather than statutory construction. The question is whether the building contract clearly identifies when the work can be said to be complete – if so, completion occurs on the date provided by the contract, per s 3B(1). The contract must provide when work is complete: by a date, timeframe, or when the work meets a particular description or has been certified as such. There is no requirement that a contract have a clause entitled “completion” to identify the date, as long as the contractual provisions otherwise make it clear. Where the contract does not provide for when the work is complete, completion occurs on “practical completion” as defined by s 3B(2).
Catchwords: BUILDING AND CONSTRUCTION — builder retained to repair defects caused by original builder — whether proceedings for breach of statutory warranty commenced within 7 years after completion of work — s18E, Home Building Act 1989 (NSW) — date of completion of work — s3B, Home Building Act — legislative history – distinction between completion and practical completion – meaning of “completion” — interaction between s3B(2) and (3).
REFEREE — separate question — whether to adopt report — error of law in application of section 3B — failed to consider when contractor last attended site to carry out work under section 3B(3)(b) — final date on which contractor attended site was earlier than date of practical completion under section 3B(2) — the earliest date applies — proceedings out of time. | Trainor v Harness Racing New South Wales & Anor [2023] NSWSC 1278 27 October 2023 - Nixon J
In sum: The plaintiff (Mr Trainor) failed to establish his contention of apprehended bias by the second defendant, who had gathered information in preparation for an inquiry in relation to a positive drug test returned by one of Mr Trainor’s horses and was also appointed Chairman of the panel of stewards (Panel) for that inquiry. Mr Trainor raised a further argument that the Panel’s decision as to his recusal application was vitiated by an error of law, in that it was determined by the Panel as a whole, rather than in accordance with the principles outlined by the majority in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15: that, at least in the first instance, a recusal application should be dealt with by the member who has been challenged for apprehended bias. The Court did not express a concluded view on the issue, but considered there was force in the defendants’ submissions that: the reasoning of the majority in QYFM invoked the particular professional and ethical obligations of judicial officers and was not applicable to stewards; there are no universally applicable rules for courts and tribunals as to how a recusal application should be determined; and although QYFM concluded that it was not an error for the particular judge (against whom an allegation of apprehended bias was made) to determine the recusal application, that did not entail that it would be an error for all members of the Full Court to have considered that issue.
Catchwords: BIAS – apprehended bias – chair of a panel conducting inquiry had previously investigated the matters the subject of the inquiry – consideration of role of stewards in investigating and determining contraventions of rules – contention of apprehended bias not established.
PRACTICE AND PROCEDURE – whether application to disqualify chair of panel for bias should be determined in the first instance by challenged member alone or by all members of Panel as constituted. | | 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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