| | | | | | | NCAT Legal Bulletin Issue 6 of 2017
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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 covers the period of June to July 2017.
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| Rizeq v Western Australia [2017] HCA 23
21 June 2017 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In brief: The High Court unanimously dismissed an appeal from the Western Australian Court of Appeal. The appellant had been convicted of two offences against s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) by verdicts of guilty of 11 of 12 jurors, in accordance with s 114(2) of the Criminal Procedure Act 2004 (WA).
The appellant, at all relevant times, had been a resident of New South Wales. He appealed to the Court of Appeal, on the basis that the trial involved a matter “between a State and a resident of another State” within the meaning of s 75(iv) of the Constitution and that the District Court was, therefore, exercising federal jurisdiction under s 39(2) of the Judiciary Act 1903 (Cth). The Court of Appeal dismissed the appeal. By grant of special leave, the appellant appealed to the High Court.
The appellant argued that s 6(1)(a) of the Misuse of Drugs Act applied to his trial as a Commonwealth law, and not a law of Western Australia, because s 79 of the Judiciary Act 1903 (Cth) “picked up” and applied that provision as a Commonwealth law. The appellant contended that s 79 operated this way because the District Court was exercising federal jurisdiction in hearing the proceedings. Section 79(1) of the Judiciary Act relevantly provides:
“The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”
Accordingly, the appellant argued that, as a State law, s 6(1)(a) could not apply of its own force in federal jurisdiction. On the basis of this proposition, the appellant argued that his trial was a trial on indictment of offences against a law of the Commonwealth, which, by operation of s 80 of the Constitution, required a unanimous jury verdict for the relevant convictions to be made against him.
As a starting point, the Court observed that (at [4]) s 39(2) of the Judiciary Act “invests State courts with federal jurisdiction”, holding (at [7]) that “the investment of ‘federal jurisdiction’ is not a direction as to the law to be applied. It is the investment of authority for a State court to adjudicate.” The Court then observed (at [8]) that “a legislative grant of federal jurisdiction simply means that authority is given to a court to hear and determine a matter”. After considering the relevant authorities on the construction of s 79(1) of the Judiciary Act (at [8]-[18]), the Court held (at [20]):
“Section 79(1) is not directed to the rights and duties of persons. It is directed to courts exercising federal jurisdiction. Its purpose is to fill a gap in the laws which will regulate matters coming before those courts and to provide those courts with powers necessary for the hearing or determination of those matters. The laws upon which s 79 operates should be understood in this way.”
Applying this statement to s 6(1)(a) of the Misuse of Drugs Act and s 114(2) of the Criminal Procedure Act, the Court held (at [32]) that:
“Section 79 of the Judiciary Act is directed to courts. Its purpose is to fill the gaps created by a lack of Commonwealth law governing when and how a court exercising federal jurisdiction is to hear and determine a matter and the inability of a State law to apply directly to that court whilst exercising federal jurisdiction. In such a case it is necessary that s 79 adopt the State provision and apply it. Section 114(2) of the Criminal Procedure Act is a provision of this kind. Section 6(1)(a) of the MDA is not. Its application was unaffected by the fact that the offence it created was tried in federal jurisdiction. It was not necessary for s 79 of the Judiciary Act to adopt it. Section 6(1)(a) of the MDA applied directly. It follows that s 80 of the Constitution was not engaged.”
The plurality also discussed, at length, the structure of the Constitution (at [44]-[64]) and the constructive context (at [65]-[77]) and history (at [78]-[89]) of s 79(1) of the Judiciary Act. For brevity, this interesting discussion has been omitted from the present summary.
Read the decision on the High Court of Australia website.
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| The Queen v Dickman [2017] HCA 24
21 June 2017 — Kiefel CJ, Bell, Keane, Nettle, Edelman JJ
In brief: The High Court unanimously allowed an appeal from the Victorian Court of Appeal, holding (at [5], [57]) that the Court of Appeal had erred in finding that the primary judge was incorrect in admitting identification evidence under s 137 of the Evidence Act 2008 (Vic). Section 137 of the Evidence Act relevantly states that:
“In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”
After reviewing the totality of the evidence available to the jury in the proceedings at first instance (at [41]-[56]), the Court held (at [57]) that:
“The trial judge's conclusion that the danger of unfair prejudice was minimal and could be adequately addressed by direction was justified. It follows that the admission of the [identification evidence] did not involve error.”
Furthermore, the Court held (at [5], [63]) that, had there been an error in admitting the evidence, there had been no substantial miscarriage of justice on the basis that prosecution case against the respondent was overwhelming and that a conviction would have been inevitable.
Read the decision on the High Court of Australia website.
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| GAX v The Queen [2017] HCA 25
21 June 2017 — Bell, Gageler, Nettle, Gordon, Edelman JJ
In brief: The High Court unanimously allowed an appeal from the Queensland Court of Appeal, holding that the jury’s verdict in the District Court was unreasonable in the circumstances. Accordingly, the Court (at [32]) set aside the appellant’s conviction and entered a verdict of acquittal.
The appellant was tried by jury in the District Court on an indictment containing three counts, being two counts of indecent dealing with a child and the third being aggravated indecent dealing with the same child (at [1]). He was convicted of count three, but was acquitted of counts one and two. The appellant appealed against his conviction to the Court of Appeal, contending that the verdict was unreasonable on the basis that it was inconsistent with the verdicts of not guilty on counts one and two (at [2]).
A majority of the Court of Appeal (Atkinson J, Morrison JA agreeing) rejected the appeal, holding that there was a rational basis for a jury to convict the appellant on count three and concurrently acquitting him on counts one and two (at [2] and [15]). McMurdo P dissented, holding that the available evidence was insufficient to prove the charge beyond reasonable doubt (at [18]).
The High Court held (at [31]) that it was not open to the jury to draw an inference beyond reasonable doubt on count three, as there was a real possible that the complainant’s evidence was a reconstruction and not an actual memory, agreeing with the dissenting judgment of McMurdo P.
Read the decision on the High Court of Australia website.
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| Court of Appeal of New South Wales
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| RinRim Pty Ltd v Deutsche Bank AG [2017] NSWCA 169
12 July 2017 — Beazley P, Payne JA and Sackville AJA
In brief: The Court of Appeal considered whether an appellant was entitled to raise a new argument on appeal that it had not pursued at trial. In doing so, the Court held (at [76]) that (footnotes omitted):
“It is a well established principle that an appellant is not entitled to raise a new argument on appeal if the contention could possibly have been met by evidence at the trial. However, as Leeming JA pointed out in Tal Life Ltd v Shuetrim, an appellant does not have a right to insist that a point be decided on appeal simply because it raises a question of law only or depends on facts established beyond controversy. The question is always whether the appellate court considers it “expedient and in the interests of justice to entertain the point”. One factor to bear in mind is that the parties to litigation, especially those who are well resourced and represented by competent counsel, are ordinarily bound by their forensic choices at trial.”
Furthermore, following Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 646, the Court observed (at [77]) that:
“It is not in the interests of justice to allow a party to fight a case on a factual basis at trial and, having failed because a key witness’ evidence is not accepted, attempt to reconstitute it on appeal.”
Read the decision on the NSW Caselaw website.
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| Federal Court of Australia
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| Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 3) [2017] FCAFC 102
4 July 2017 — Allsop CJ, Rares and McKerracher JJ
In brief: The Full Federal Court considered the kinds of conduct that may give rise to repudiatory breach of contract. Following the statement of the High Court in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 at [49], the Court held (at [70]-[71]) that conduct amounting to a repudiatory breach may be distinguished into two categories:
1) Renunciation. First, there may be conduct amounting to a breach that evinces an intention of the offending party not to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the defaulting party’s contractual obligations.
2) Substantial breach warranting termination. Secondly, there may be a breach of an essential term that itself, or of an innominate term that is of a sufficiently serious nature that it, gives rise to a right to terminate.
In relation to the first category, the Court held (at [71]) that “the intention or the acts of the defaulting party can be distilled as the relevant factor”. Following Byrnes v Jokona Pty Ltd [2002] FCA 41 at [70]-[80], the Court observed (at [70]) that if the nature of the defaulting party’s conduct would be described as serious or substantial, it may be that the party evinces an intention not to be bound and thus amounts to renunciation. Furthermore, the Court stated (at [70]) that (footnotes omitted):
“Another way of examining the matter is to assess the extent and gravity of the breach and determine whether the breach or breaches deprive the party not in default of substantially the whole benefit which it was intended that he, she or it should obtain from the contract.”
In relation to second category, the Court held (at [71]) that, in determining if a breach sufficiently serious as to warrant termination:
“… one looks to the nature and consequences of the breach(es), which may or may not direct attention to acts of the other contracting party.
The necessity, in this category of breach, for the effect of the failure or breach to affect the substance of what was intended to be contracted for is reflected in the damages recoverable upon termination: the loss of the benefit of the whole contract.”
Notwithstanding these distinctions, the Court observed (at [71]):
“However one expresses it, the essential element is that it has so changed or departed from the promised performance of the contract that the party not in default can be seen to have been deprived of substantially the whole of the benefit which it was intended that he, she or it would obtain from the contract.”
Read the decision on the High Court of Australia website.
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| Bis Industries Limited v Dale [2017] FCA 789
17 July 2017 — Rangiah J
In brief: The Federal Court considered the Administrative Appeal Tribunal’s statutory obligation to give reasons for its decisions and, in particular, its duty to respond to substantial issues that are raised before it. Relevantly, s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that:
“Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.”
Section 62(3) of the Civil and Administrative Tribunal Act 2013 (NSW) contains a substantially similar provision:
“(3) A written statement of reasons for the purposes of this section must set out the following:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based…”
It is worth noting that, unlike s 43(2B) of the Administrative Appeals Tribunal Act 1975,
s 62(3) additionally requires the Tribunal to set out in its reasons:
“(b) the Tribunal’s understanding of the applicable law, [and]
(c) the reasoning processes that lead the Tribunal to the conclusions it made.”
In the present case, the Court observed (at [55]-[56]) a failure to respond to a substantial, clearly-articulated argument relying on established facts involves an error of law, holding that:
“[55] In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, the Full Court said at [47]:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
[56] A failure by the Tribunal to respond to a substantial, clearly articulated argument relying on established facts involves an error of law: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63]; Dunstan v Comcare (2011) 125 ALD 362 at [68].”
After considering the Administrative Appeal Tribunal’s reasons below, the Court held (at [57], [60]) that the Tribunal had merely summarised the appellant’s argument, but did not expressly deal with its argument. The Court also held (at [61]) that it was, therefore, necessary to consider the merits of appellant’s argument on the basis that:
“… as Bennett J explained in Australian Postal Corporation v Sellick [2008] FCA 236 at [35]:
“If the particular submission…would not have affected the outcome, failure to advert to it in the reasons does not mean that the matter was not considered and does not give rise to error of law.”
Read the decision on the Federal Court of Australia website.
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| Supreme Court of New South Wales
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| The Owners – Strata Plan No 69140 v Drewe [2017] NSWSC 845
27 June 2017 — Latham J
In brief: The Supreme Court allowed an appeal against a decision of the Tribunal at first instance, holding that the Tribunal had inter alia misconstrued s 140 of the Strata Schemes Management Act 1996 (NSW), resulting in a constructive failure to exercise jurisdiction (at [44]), and failed to provide adequate reasons for its decision (at [45]).
On 20 May 2015, the first defendant applied for an order under s 140(2) of the Strata Schemes Management Act 1996 Act. Section 140(2) relevantly provides that:
“140 Order relating to alterations and repairs to common property and other property …
(2) An Adjudicator may make an order approving of alterations or repairs already made by an owner to common property or any other property of an owners corporation directly affecting the owner’s lot if the Adjudicator considers that the owners corporation unreasonably refused its consent to the alteration or repairs.
…”
In September 2015, an adjudicator dismissed this application. The first defendant appealed the adjudicator’s decision to the Tribunal, in accordance with s 177 of the Strata Schemes Management Act. In August 2016, the Tribunal held that the adjudicator had erred, finding that their decision was unreasonable. In November 2016, the plaintiff applied for judicial review of the Tribunal’s decision, being the subject of the Supreme Court proceedings. The plaintiff also pressed that its application could be dealt with as an appeal, in accordance with s 83 of the Civil and Administrative Tribunal Act 2013 (NSW).
As a starting point, the Court held (at [24]) that it was appropriate to deal with plaintiff’s application as an appeal and granted leave to appeal in accordance with s 83(1) of the NCAT Act, finding that:
“Whilst the value of the unauthorised works might be considered small, the errors in the Tribunal’s application of the relevant statutory provisions significantly undermine the effective control, management and administration of the common property by the plaintiff, which has that statutory duty pursuant to s 61(1) of the Strata Schemes Management Act.”
In relation to the first error established, the Court held (at [32]) that the Tribunal’s reasons (summarised at [21]) demonstrated an erroneous approach to the determination of the appeal:
“The question to be asked and answered was whether the Owners Corporation‘s refusal of consent at the AGM, based on the material then available, was unreasonable, not whether the grounds were objectively reasonable: see Ainsworth v Albrecht [2016] HCA 40; (2016) 338 ALR 1 at [97].”
Furthermore, the Court held (at [32]) that the Tribunal had “failed to engage at all with the accepted test under s 140”, observing (at [28]) that:
“[T]he Tribunal was obliged to confine himself to the decision of the Adjudicator, and the evidence which underpinned that decision, for the purposes of determining whether the Adjudicator had erred: Owners Corporation SP7596 v Risidore [2003] NSWSC 966; 1 STR (NSW) 395 at [17] – [18].”
The Court also held (at [29]) that the Tribunal’s power to admit new evidence on appeal, under s 181(2) of the SSM Act, did not widen its discretion to determine whether the Owners Corporation had unreasonably refused consent, observing that:
“[I]t must be remembered that the discretion under s 181(2) “is to be exercised having regard to its statutory context. It is a weapon provided to facilitate the hearing of an appeal. It was not intended to have the function of converting an appeal into a fresh hearing”: Zouk v The Owners Corporation of Strata Plan 4521 & Anor [2005] NSWSC 845 at [12].”
In relation to the second error established, the Court held (at [45]) that there had been little or no reference to the manner in which the Tribunal resolved questions of fact or law, stating that:
“Rather, the reasons appear to consist of a series of conclusions: Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19; Alchin v Daley [2009] NSWCA 418. In reaching this conclusion, I have taken into account the nature of the Tribunal’s jurisdiction, in particular that the Tribunal is required to be accessible and responsive to the needs of all of its users, and that it resolves the real issues in proceedings justly, quickly, cheaply and with as little formality as possible. Those laudable aims must not however displace the requirements of consistency and transparency.”
Read the decision on the NSW Caselaw website.
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| Taylor v Law Society of New South Wales [2017] NSWSC 948
18 July 2017 — Fullerton J
In brief: The Supreme Court considered the “fit and proper person” test (at [28]-[30]) and, in particular, how it applies in circumstances where a solicitor has misappropriated trust monies (at [31]-[37]).
As a starting point, the Court observed (at [28]-[30]) that:
“[28] In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33; Mason CJ said at [63] of the concept of a person being “fit and proper”:
The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
[29] In the same case Toohey and Gaudron JJ said at [36]:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
[30] The determination as to whether a person is fit and proper in any given context provides a wide scope for discretionary judgment including broad bases for rejection (see Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074 at [23], per Northrop, Miles and French JJ).”
In relation to that test’s application to a solicitor who has misappropriated trust monies, the Court held (at [31]-[32]) that such misconduct:
“[31] … cannot be divorced from the community’s legitimate expectation that a legal practitioner is a person whose honesty is beyond question and someone in whom they can confidently place great faith and trust, including when handling money on their behalf.
[32] “In Kumar v Legal Services Commissioner [2015] NSWCA 161, Leeming JA (with whom Basten JA and Sackville AJA) agreed, stated at [61]:
… Lest there be any doubt about it, even a temporary use by Mr Kumar of his client’s funds without prior approval amounts to serious and deliberate dishonesty. That is precisely the sort of conduct which is antithetical to the trust and confidence which is required by a solicitor with custody of his or her clients’ money.”
Furthermore, the Court observed (at [36]-[37]):
“[36] One of the issues that arises on the evidence in this case is the extent to which the Court can accept the plaintiff’s assertions that her past misconduct will not be repeated (or that there is no risk of any repetition of that conduct) in circumstances where, over the course of successive years between 2012 and 2015, when she was confronted with having misused clients’ funds she repeatedly claimed she would desist from that conduct only to repeat it (sometimes within weeks) when she perceived a need for funds to meet her private or professional needs.
[37] On any view of the authorities of this Court to which I was referred, a solicitor’s improper dealings with trust monies is regarded as an extremely serious matter involving, as it necessarily does, a gross breach of trust and a grave abdication of the solicitor’s legal responsibilities and obligations. Unsurprisingly, such conduct usually leads to a finding that the solicitor is not a fit and proper person to continue to practice. Where a person seeks to be reinstated to practice after a period of disqualification, as is the case here, and when reviewing the circumstances contextual to the misuse of trust funds, one of the questions that inevitably arises in applying the “fit and proper person test” is whether, with the effluxion of time, the Court can be confident that there will be no repetition of the misconduct.”
Read the decision on the NSW Caselaw website.
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