| | | | | | | | NCAT Legal Bulletin Issue 6 of 2016
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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.
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| | | Miller v The Queen [2016] HCA 30
24 August 2016
In brief: In this decision, the High Court considered whether to overturn the doctrine known as “extended joint criminal enterprise” (JCE) (or “extended common purpose”) enunciated in McAuliffe v The Queen (1995) 183 CLR 108. This was prompted by the joint UK Supreme Court and Privy Council decision of R v Jogee; Ruddock v The Queen, which held that the common law had taken a "wrong turn" in recognising the doctrine. By a 6:1 majority, the Court decided that the doctrine of extended JCE should remain part of Australia’s common law. However, each appeal was allowed (and the proceedings remitted) on another ground: that the SA CCA had failed to review the sufficiency of the evidence.
Read the decision on the High Court of Australia website.
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| Deal v Father Pius Kodakkathanath [2016] HCA 31
24 August 2016
In brief: The High Court unanimously allowed an appeal from the Victorian Court of Appeal concerning the proper construction of occupational health and safety regulations. The appellant, a school teacher, had been injured when she fell from a step ladder while removing displays from a classroom pin-board ([1]). At trial, the appellant alleged her injury was caused by the respondent’s breach of statutory duty, specifically regs 3.1.1-3.1.3 of the Occupational Health and Safety Regulations 2007 (Vic), but this was not left to the jury ([3]). The Court of Appeal upheld this decision on the basis that the words “associated with” in reg 3.1.2 required a “close connection” ([25]). In allowing the appeal, the High Court held that reg 3.1.2 should be broadly construed (relying on the text, purpose and context), and warned against “approaching the task of statutory construction by reference to what a judge might regard as desirable policy, imputing that to the legislation and then characterising that as the purpose of the legislation” ([37]).
Read the decision on the High Court of Australia website.
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| Sio v The Queen [2016] HCA 32
24 August 2016
In brief: The High Court unanimously allowed an appeal from the NSW Court of Criminal Appeal on jury directions and hearsay evidence.
Read the decision on the High Court of Australia website.
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| NH v Director of Public Prosecutions [2016] HCA 33
31 August 2016
In brief: The High Court unanimously allowed four appeals from the Full Court of the South Australian Supreme Court. The appellants had been acquitted of murder but convicted of manslaughter following a trial by jury. The Full Court, relying on its inherent power, later quashed the verdicts and directed new trials on the charge of murder, after finding that the foreperson had erroneously told the Court that a majority of at least 10 of the jury had reached verdicts of not guilty of murder ([3]). The High Court held that, in circumstances where 1) the verdicts had been delivered in open court and without dissent or action by the other jurors (and hence were presumed to be correctly communicated) and 2) the jury had been discharged, the Court’s inherent power did not extend to the setting aside of perfected judgments of acquittal and conviction ([5]).
Read the decision on the High Court of Australia website.
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| Maritime Union of Australia v Minister for Immigration and Border Protection [2016] HCA 34
31 August 2016
In brief: The High Court unanimously held that a determination made by the Minister for Immigration and Border Protection, under s 9A(6) of the Migration Act 1958 (Cth), was invalid. Section 9A(6) provided “The Minister may, in writing, make a determination for the purposes of the definition of offshore resources activity in subsection (5)." The Minister’s determination excepted from that definition all operations and activities to the extent that they use any vessel or structure that is not an Australian resources installation ([1], [19]). In holding the determination invalid, the Court noted that the Determination purported to deprive s 9A(1) of all content, hence negating the operation of the general rule ([23]) and in effect repealing s 9A(1) ([25]).
Read the decision on the High Court of Australia website.
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| The Queen v Baden-Clay [2016] HCA 35
31 August 2016
In brief: The High Court unanimously allowed an appeal from a decision of the Queensland Court of Appeal (QCA), which set aside the respondent’s conviction on the charge of murder and substituted a verdict of manslaughter. The QCA did so on the basis that the jury’s verdict was unreasonable because “the evidence did not allow the jury to be satisfied beyond reasonable doubt that the respondent intended either to kill her, or to cause her grievous bodily harm” (at [3]). Specifically, the QCA “accepted the respondent's submission, made for the first time on appeal, that the prosecution had not excluded the hypothesis that the respondent had struck his wife in the course of a struggle and that she had died as the result of a fall, or in some other manner, that did not involve a [relevant] intent on his part” ([3]). The High Court held that this hypothesis was not available on the evidence: it was directly contrary to the evidence of the respondent at trial and the way in which the respondent’s counsel conducted the defence (see, eg, [63]).
Read the decision on the High Court of Australia website.
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| Murphy v Electoral Commissioner [2016] HCA 36
5 September 2016 (Reasons)
In brief: The High Court upheld the validity of provisions of the Commonwealth Electoral Act 1918 (Cth) that “prevent the Electoral Commissioner from placing the name of a person on an Electoral Roll for a Division until after the close of the poll for an election for the Division, where the person's claim for enrolment or for transfer to the Roll from the Roll of another Division has been received after 8 pm on the day of the closing of the Rolls.” The plaintiffs, relying on Roach and Rowe, had submitted these provisions created a burden on the Constitutional mandate of popular choice and that this burden was not for a substantial reason. A majority of the Court held that the suspension period — the time from the closing of the Rolls to the close of the poll for an election — did not amount to a burden but, if it did, it was justified by substantial reasons: achieving accuracy, certainty and the efficient conduct of an election (see eg Kiefel J at [69], [73]–[74]; Keane J at [185]; Nettle J at [250]).
Read the decision on the High Court of Australia website.
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| Angas Securities Ltd v Small Business Consortium Lloyds Consortium No. 9056 [2016] NSWCA 182
2 August 2016 - McColl and Leeming JJA, Sackville AJA
Justice Leeming discussed a number of recent High Court decisions on the construction of contracts and specifically the recourse to surrounding circumstances (at [18]–[20]):
[18] The distinction between impermissible regard to the parties’ subjective intentions and expectations and permissible recourse to objective matters known to the parties may be seen in a number of recent decisions of the High Court. Without purporting to be exhaustive, in Byrnes v Kendle [2011] HCA 26; 243 CLR 253, Heydon and Crennan JJ said at [98]:
“A contract means what a reasonable person having all the background knowledge of the ‘surrounding circumstances’ available to the parties would have understood them to be using the language in the contract to mean. But evidence of pre-contractual negotiations between the parties is inadmissible for the purpose of drawing inferences about what the contract meant unless it demonstrates knowledge of ‘surrounding circumstances’. And in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd this Court said:
‘It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.’” [Citations omitted.]
[19] Substantially the same distinction was drawn by French CJ, Nettle and Gordon JJ in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 89 ALJR 990 at [50]:
“Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties' statements and actions reflecting their actual intentions and expectations.”
[20] I note that the references in both of those passages to evidence being “inadmissible” are references not to the evidence being tendered, but to its being used in some particular process of reasoning, a point recently emphasised in D Reynolds, “Construction of contracts after Mount Bruce Mining v Wright Prospecting” (2016) 90 Australian Law Journal 190 at 193.
Read the decision on the NSW Caselaw website.
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| Choo v Zhang [2016] NSWCA 193
5 August 2016 - McColl and Basten JJA; Sackville AJA
Justice Sackville summarised some of the principles governing misleading and deceptive conduct (at [55]–[59]; footnotes omitted):
[55] In a claim based on a contravention of s 18(1) of the ACL, it is necessary to identify the contravening conduct and to determine whether there is a causal connection between the conduct and the loss or damage allegedly suffered by the claimant. That requires a sufficient link to be established between the misleading conduct and errors made by persons exposed to the conduct.
[56] As French CJ pointed out in Campbell v Backoffice Investments Pty Ltd, the question of whether conduct is misleading or deceptive within the meaning of s 18(1) is logically anterior to the question of whether a person has suffered loss or damage thereby. An answer to the first question generally requires consideration of whether the impugned conduct as a whole has a tendency to lead a person into error. Where the conduct involves dealings between individuals, as in the present case, characterisation of the conduct requires objective consideration of the circumstances and context of the impugned conduct, which may include the knowledge of the person to whom the conduct is directed.
[58] It is, however, important to appreciate that whether or not a person contravenes s 18(1) of the ACL is not necessarily answered simply by asking whether the person’s conduct in fact misled someone else, although evidence to that effect might be significant. Misleading conduct may take many forms and is not confined to representations. But in a case where the impugned conduct is said to consist of representations, the question of whether the conduct was misleading or deceptive ordinarily must be determined by what a reasonable person in the position of the representee would have made of the representations, taking into account all relevant circumstances.
[59] It is true that there may be cases which turn on what the representee makes of the representations, whether or not the representee acts reasonably. The majority in Butcher v Lachlan Elder Realty Pty Ltd gave as an example a case where a representor with commercial expertise knows that the representee has limited experience and is acting without professional advice in rushed circumstances. Nonetheless, the impugned conduct viewed as a whole must be capable of leading the representee into error.
Justice Sackville also set out the principles governing the assessment of damages for misleading and deceptive conduct (at [74]-[77]).
Read the decision on the NSW Caselaw website.
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| Moloney v Taylor [2016] NSWCA 199
10 August 2016 - McColl and Simpson JJA; Ball J
In an appeal from decision of NCAT’s Appeal Panel, the Court of Appeal held that the Appeal Panel was correct in concluding that the Tribunal did not have jurisdiction to make the order that it had made under s 34 of the Holiday Parks (Long-term Casual Occupation) Act 2000 (NSW) (the Act), but erred in refusing to remit the claim for compensation in circumstances where another provision of the Act could have founded the compensation order. The Court of Appeal considered the objects of the Civil and Administrative Tribunal Act 2013, the guiding principle in s 36, and s 38(4), which provides:
“The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
The Court of Appeal held (at [30]-[31]; footnotes omitted):
[30] Nevertheless, as is apparent from the provisions of s 36 to which we have referred, a body such as the Tribunal (which expression includes the Appeal Panel) is not expected to conduct its proceedings with the formality of a court of law. Rather, it is required to conduct itself with minimum formality and to reach decisions according to the substantive merits of the case, and not by reference to legal form or technicalities. Further, it is to exercise its powers speedily and economically.
[31] On appeal, the question for the Appeal Panel was whether in substance the Tribunal had made an appealable error and, if so, what orders should be made which would best achieve justice between the parties having regard to that error and the provisions of the Act. That question was not addressed, or not properly addressed, simply by asking the question whether the Tribunal had power to make the orders sought under the provision relied on by the Tribunal.
Read the decision on the NSW Caselaw website.
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| National Australia Bank Limited v Dionys as Trustee for the Angel Family Trust [2016] NSWCA 242
2 September 2016 - Macfarlan JA, Sackville AJA and White J
Justice Sackville noted (at [86]; footnotes omitted) that a party cannot unilaterally introduce new terms to a contract after its conclusion:
[86] … As was pointed out by Brennan J in Oceanic Sun Line Special Shipping Company Inc v Fay, it is too late after a contract has been made for one party to add conditions not incorporated in the original contract. Whether the unilateral attempt to add conditions occurs some time after the agreement has been concluded or only a short time later cannot matter.
Justice Sackville also summarised the principles governing ratification as follows (at [124]–[127]:
[124] The operation of the doctrine of ratification was explained by Isaacs J in Davison v Vickery’s Motors Ltd (In Liq) as follows:
“(1) The general rule is that no person can become a party to a bilateral contract unless he enters into it personally or by an authorized agent.
(2) An exception is recognized where a person ratifies an agreement made by another as for him but without his antecedent authority.
(3) On ratification, and not before, the agreement is as a general rule deemed by a fiction to have been made by his antecedent authority to the person actually making it.”
[125] There are three prerequisites for a valid ratification:
“■ the agent whose act is sought to be ratified must have purported to act for the principal;
■ at the time the agent acted, he or she must have had a competent principal (that is, the principal must have been in existence and capable of being ascertained); and
■ at the time of the ratification, the principal must be legally capable of doing the act which has been ratified.”
[126] Whether the conduct of the principal amounts to ratification is a question of fact, but the party alleging that unauthorised acts have been ratified bears the onus of proving that ratification has taken place. The general principle is that the language or conduct of the principal must be unequivocal. However:
“The positive acts of the alleged principal may, aside from any express words, constitute sufficient evidence of ratification. This may be so where the fair inference to be drawn from a person’s conduct, on an objective basis, is that the person consents to a transaction to which he or she might properly have objected. Put another way, ratification ‘is implied from or involved in acts when you cannot logically analyse the act without imputing such approval to the party whether his mind in fact approved or disapproved or wholly disregarded the question’.”
[127] Within this framework, it may seem surprising that a principal’s failure to act, or his or her mere silence, may constitute ratification of the unauthorised acts of the putative agent. Nonetheless, the authorities recognise that, in certain circumstances, ratification can be inferred from silence or acquiescence. Thus, in City Bank of Sydney v McLaughlin, a case relied on by NAB, Griffith CJ and Barton J explained that:
“In general a man is not bound actively to repudiate or disaffirm an act done in his name but without his authority. But this is not the universal rule. The circumstances may be such that a man is bound by all rules of honesty not to be quiescent, but actively to dissent, when he knows that others have for his benefit put themselves in a position of disadvantage, from which, if he speaks or acts at once, they can extricate themselves, but from which, after a lapse of time, they can no longer escape. Under such circumstances mere inaction is convincing evidence of ratification or adoption.”
Read the decision on the NSW Caselaw website.
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| AQO v Minister for Finance and Services [2016] NSWCA 248
5 September 2016 - McColl, Basten and Ward JJA
Justice Basten outlined (at [120]–[128]; see especially [120]–[121], [127]–[128]; footnotes omitted) the “somewhat labyrinthine provisions” and “extraordinarily complex chain” that provides NCAT’s Appeal Panel with jurisdiction:
[120] The resolution of the issues in this Court does not turn upon the jurisdiction of the Appeal Panel. Nevertheless, counsel for the applicant helpfully sought to outline the somewhat labyrinthine provisions, by which the matter came to be resolved. The jurisdiction of the Appeal Panel is conferred by reference to “an internally appealable decision”. That phrase is defined to mean a decision of the Tribunal over which the Tribunal has “internal appeal jurisdiction.” That phrase is, in turn, defined to mean a decision made by the Tribunal in proceedings for “a general decision” or “administrative review decision”. This language reflects two elements of the jurisdiction of the Tribunal identified as “general jurisdiction” and “administrative review jurisdiction”.
[121] The “administrative review” jurisdiction of the Tribunal is, relevantly, that conferred under the Administrative Decisions Review Act 1997 (NSW), s 9. That provision states that the Tribunal has such jurisdiction over a decision of an administrator “if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision.” The term “enabling legislation” is defined to mean any legislation which provides for applications to be made to the Tribunal.
…
[127] It is true that there is a specific reference to a decision regarding the jurisdiction of the Tribunal in the definition of ancillary decision and it may be inferred that the Appeal Panel thought that the specific reference to jurisdiction determined the issue. However, it appears from the chapeau to the definition of ancillary decision that one must determine that the decision is “other than an interlocutory decision” before coming to specific paragraphs which identify, non-exhaustively, what is meant by the term. If jurisdiction were determined as part of the final determination of a matter by the Tribunal, it might constitute an ancillary decision; however the refusal of a summary dismissal application, albeit based on an alleged absence of jurisdiction, is almost certainly an interlocutory issue, falling within either par (h) or par (i) of the definition of interlocutory decision.
[128] A contrary approach might rely upon what appears to be an internal inconsistency in the chapeau to the definition of ancillary decision, which envisages a decision which is “preliminary to” a final determination but is not an interlocutory decision. It is unfortunate that members of the public, in seeking to resolve disputes before a Tribunal which is meant to facilitate the just, quick and cheap resolution of the real issues in proceedings, and which is required to dispense with formality, are faced with such potentially confusing provisions.
Justice Basten also noted that Ministers should be referred to by way of their office:
[111] In the proceedings in the Tribunal, the Minister was named, rather than referred to by way of his office. Absent some statutory provision to the contrary (and none was drawn to the attention of the Court) that approach was erroneous and the Court directed that the respondent be identified by reference to the office held (being the capacity in which the relevant conduct occurred) and that the applicant file an amended summons to reflect this change. The authorities which state this principle were identified in Sinkovich v Attorney General of New South Wales and need not be repeated.
Read the decision on the NSW Caselaw website.
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| Hoy v Coffs Harbour City Council [2016] NSWCA 257
8 September 2016 - Bathurst CJ, Simpson and Payne JJA
Chief Justice Bathurst summarised the principles of statutory construction as follows (at [52]):
[52] As was stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27, the task of statutory construction must begin with a consideration of the text itself, although the meaning of the text may require consideration of the context, which includes the general purposes and policy of the provision in question: at [47]; see also Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]. Context and purpose are important as the task of the Court is to give the words the meaning the legislature is taken to have intended them to bear. Such purposes can be inferred from the statute itself and, where appropriate, by reference to extrinsic material. However, in making use of such extrinsic material, it must be remembered that such material can only be used as an aid to statutory construction, not for the purpose of identifying the subjective purpose or intention of the legislature: Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [23]-[26]; Project Blue Sky v Australian Broadcasting Authority [1988] HCA 28: 194 CLR 355 at [69]-[71], [78].
Read the decision on the NSW Caselaw website.
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| Federal Court of Australia
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| Macquarie Bank Limited v Arup Pty Limited [2016] FCAFC 117
16 August 2016 - Middleton, Robertson and Gleeson JJ
The Full Federal Court discussed the evolution of the principles governing the waiver of legal professional privilege from the fairness as touchstone approach in Attorney-General (NT) v Maurice (1986) 161 CLR 475 to the “inconsistency” approach stated in Mann v Carnell (1999) 201 CLR 1 (see [24]–[27]). After reviewing these and other more recent authorities, the Full Federal Court stated (at [28]):
[28] In determining whether there has been an implied waiver of privilege, the Court’s focus will be on whether there has been conduct that is inconsistent with the maintenance of confidentiality in the communication over which privilege is asserted. An assessment of whether there has been an implied waiver will be informed by considerations of forensic unfairness.
Read the decision on the Federal Court of Australia website.
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| | Queensland Court of Appeal |
| Watts v Legal Services Commissioner [2016] QCA 224
6 September 2016 - Margaret McMurdo P and Gotterson and Morrison JJA
The Queensland Court of Appeal allowed an appeal from the Queensland Civil and Administrative Tribunal concerning the removal of a legal practitioner from the roll. The Court of Appeal held that the Tribunal’s failure to have regard to a doctor’s assessment of the practitioner’s risk of re-offending amounted to a failure to take into account a material consideration (and hence was an error of the kind described in House v The King).
Read the decision on the AustLII website.
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| | Mueller v Que Capital Pty Ltd (No 2) [2016] WASCA 157
9 September 2016 - Newnes, Murphy and Mitchell JJA
The WA Court of Appeal considered an allegation of actual or apprehended bias in circumstances where the primary judge’s brother had been a partner in an earlier emanation of the law firm which was acting for the plaintiffs at trial. The Court summarised the well-established principles relating to apprehended bias at [30]–[33], before concluding that the connection did not give rise to apprehended bias (at [34]):
[34] The fact that the judge's brother had, some three years prior to the commencement of the trial, been a partner of the predecessor firm of MDS Legal, and that the predecessor firm had, several years before that, drawn two of the instruments in relation to which [the appellant] was sued, provide no logical connection with any feared deviation from impartial decision-making by the judge. It could not be said, for example, that the brother had either a financial or even a reputational interest in the outcome of the litigation. In any event, [the appellant] had the opportunity to object but did not take it and cannot be heard to complain about the matter now.
Read the decision on the AustLII website.
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| | BVT v Office of the Children's Guardian [2016] NSWSC 1169
23 August 2016 - Adamson J
In an appeal from a NCAT decision dismissing BVT’s application for an enabling order (entitling BVT to work with children), Adamson J considered the effect of a plea of guilty (at [55]):
[55] I accept the plaintiff’s submission that these two findings reflected a misapprehension of the effect of the plaintiff’s plea of guilty. A plea of guilty constitutes an admission of only those facts which are essential to the charge: R v O’Neill [1979] 2 NSWLR 582 at 588. The police facts, as set out above, contained a narrative of the facts on which the prosecution relied, many of which were not essential to the charge. Accordingly, the plaintiff’s plea of guilty to the charge does not amount to an admission as to the facts in the police facts. Nor do the witness statements fall within the purview of the effect of the admission constituted by the plea of guilty.
Since “the Tribunal misapprehended the legal effect of the plaintiff’s plea”, Adamson J allowed the appeal, set aside NCAT’s decision and remitted the matter for determination.
Read the decision on the NSW Caselaw website.
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