| | | | | | | NCAT Legal Bulletin Issue 6 of 2018
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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 latest issue features case summaries of recent decisions from the High Court of Australia and NSW Court of Appeal, including: - Hossain v Minister for Immigration and Border Protection [2018] HCA 34, which explored the nature and effect of jurisdictional error;
- Nobarani v Mariconte [2018] HCA 36, in which a new trial was granted on the basis that the appellant was denied procedural fairness;
- Pipikos v Trayans [2018] HCA 39, regarding the doctrine of part performance in relation to a contract for the sale of land; and
- The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40, which considered the admissibility of tendency evidence in single complainant sexual offences cases.
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| Hossain v Minister for Immigration and Border Protection [2018] HCA 34
15 August 2018 – Kiefel CJ, Gageler, Keane, Nettle and Edelman JJ
In brief: The High Court dismissed an appeal from the Full Court of the Federal Court, holding that the majority in the Full Court was “wrong to distinguish between a decision involving jurisdictional error and a decision wanting in authority. They are one and the same.” ([26])
The decision under review involved an order of the Federal Circuit Court, setting aside a decision of the Administrative Appeals Tribunal, which had affirmed a decision of the Minister for Immigration and Border Protection to refuse to grant a visa. Relevantly, as it was put in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at 32 [23]; [2015] HCA 51 ([31] and [35]):
“[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act". Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.
…
Here the Tribunal breached that implied condition by misconstruing and misapplying the criterion which related to the timing of the making of the application. The breach, however, could have made no difference to the decision which the Tribunal in fact made to affirm the decision of the delegate.”
That being so, the Tribunal's error “did not rise to the level of a jurisdictional error.” ([37])
The majority (Kiefel CJ, Gageler and Keane JJ) noted that the term “jurisdiction is a verbal coat of too many colors”,30. and expounded, at length, the meaning and implications of “jurisdictional error” ([17]-[31]).
It was found that “the traditional distinction between jurisdictional and non-jurisdictional error cannot be avoided”, and that “jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error” ([22]-[25]):
“Jurisdiction, in the most generic sense…, refers to the scope of the authority that is conferred on a repository. In its application to judicial review of administrative action the taking of which is authorised by statute, it refers to the scope of the authority which a statute confers on a decision-maker to make a decision of a kind to which the statute then attaches legal consequences. …A decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have "such force and effect as is given to it by the law pursuant to which it was made".
Jurisdictional error, in the most generic sense…, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as "involving jurisdictional error" is to describe that decision as having been made outside jurisdiction. …in traditional parlance, the decision is "invalid" or "void".” (footnotes omitted)
Nettle and Edelman JJ would also have dismissed the appeal ([39] and [79]-[80], respectively).
30. Frankfurter J in United States v L A Tucker Truck Lines Inc 344 US 33 at 39 (1952).
Read the decision on the High Court of Australia website.
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| Shrestha v Minister for Immigration and Border Protection Ghimire v Minister for Immigration and Border Protection Acharya v Minister for Immigration and Border Protection [2018] HCA 35
15 August 2018 – Kiefel CJ, Gageler, Keane, Nettle and Edelman JJ
In brief: These three appeals were heard concurrently with Hossain, above. Each fell to be determined in line with that case ([1]):
“that an incorrect understanding and application of the law in making a decision in the purported exercise of decision-making authority conferred by the Migration Act 1958 (Cth) does not constitute a jurisdictional error justifying the grant of relief under or by reference to s 75(v) of the Constitution if a correct understanding and application of the law could not in the circumstances have resulted in the decision that was made being a different decision.”
For the reasons given in Hossain, the majority (Kiefel CJ, Gageler and Keane JJ) dismissed the appeals, finding that “the fact that the postulated legal error could have had no impact on the Tribunal's decisions denied that error the character of a jurisdictional error.” ([10])
The majority observed that “[t]he nature of the postulated legal error lends itself to analogy with cases in which a decision-maker has authority to exercise discretion but is mistaken as to the statutory source of that authority” ([11]):
“The mistake as to the source of authority has consistently been held not to take the exercise of discretion beyond the statutory authority which the decision-maker actually has unless the mistake leads the decision-maker to ignore statutory requirements which might have resulted in the exercise of the discretion being different had they been observed.” (footnotes omitted)
Nettle and Edelman JJ would also have dismissed the appeal, finding that the conclusion that the Tribunal made no error of law, and therefore could not have committed a jurisdictional error, was sufficient to uphold the notice of contention ([35]-[36]).
Read the decision on the High Court of Australia website.
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| Nobarani v Mariconte [2018] HCA 36
15 August 2018 – Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ
In brief: The High Court unanimously allowed an appeal from the NSW Court of Appeal, holding that a new trial should be granted to the appellant on the basis that he was denied procedural fairness in the conduct of a trial involving probate of a will ([50]).
Section 75A(10) of the Supreme Court Act 1970 (NSW) provides that, on appeal, the “Court may make ... any order ... which the nature of the case requires”, including an order for a new trial ([36]). Reviewing the case law in relation to that provision, the Court said ([39]):
“In summary, a power under s 75A(10) to order a new trial arises where a denial of procedural fairness causes some substantial wrong or miscarriage. The denial of procedural fairness will cause a substantial wrong if it deprived the affected person of the possibility of a successful outcome.”
The denial of procedural fairness to the appellant, who was unrepresented, “amounted to a "substantial wrong or miscarriage" in the sense that the appellant was denied the possibility of a successful outcome” ([46]-[47]):
“This conclusion is not based upon reasoning that a litigant in person is entitled to be relieved from rules that would apply to a party who is represented. In this case, no legal representative would reasonably have been refused an adjournment if presented with only three clear business days to prepare for a trial of proceedings to which their client had not yet been joined and in which their client had not been the subject of pre-trial orders for preparing and filing a defence, preparing and filing evidence, issuing subpoenas, and locating and confirming availability of witnesses. As Samuels JA said in a passage that has been relied upon on many occasions:31.
"the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.""
31. Rajski v Scitec Corporation Pty Ltd unreported, NSW Court of Appeal, 16 June 1986 at 27.
Read the decision on the High Court of Australia website.
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| Mighty River International Limited v Hughes; Mighty River International Limited v Mineral Resources Limited [2018] HCA 38
12 September 2018 – Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ
In brief: The High Court dismissed an appeal from the WA Court of Appeal, with a majority (Kiefel CJ and Edelman, and Gageler JJ) holding that a deed of company arrangement, which provided for a moratorium on creditors’ claims, was consistent with Pt 5.3A of the Corporations Act 2001 (Cth) ([57] and [58]).
Part 5.3A “is concerned with "[a]dministration of a company's affairs with a view to executing a deed of company arrangement" ([1]):
“It aims to maximise the chance of survival of the business of an insolvent company, or, if that is not possible, to provide a better return to creditors than would result from an immediate winding up of the company.”
Kiefel CJ and Edelman J held that a deed can incidentally extend time for an administrator's investigations pending variations to the deed ([34]):
“Although an extension of time under s 439A(6) can only be obtained by a court order, … a deed of company arrangement can incidentally extend time for an administrator's investigations pending a subsequent variation to it. The Deed had that incidental effect. Although the s 439A report that was provided to creditors loosely characterised the proposed Deed as "essentially an extension of the Administration Period", that was only its incidental effect. The Deed created and conferred genuine rights and duties.”
Further, the objectives of Pt 5.3A “are not compromised if creditors choose, in a deed of company arrangement, to extend a moratorium beyond the period that they would otherwise have had outside an administration.” ([37])
The terms of the deed were set out as required by s 444A(3); namely, it detailed the property to be available to pay creditors’ claims, and the order in which proceeds of realising the property are to be distributed among creditors bound by the deed ([39]). This provision does not “prescribe some minimum obligation upon the administrator to distribute some property, however little, to creditors” ([43]). Accordingly, a deed of company arrangement, under which no company property is made available for distribution, is nonetheless valid ([41]).
Finally, the deed did not contravene ss 438A, regarding the opinions an administrator must form on creditors’ interests, or 439A(4) on the timing of the meeting following formation of these opinions ([48]). Indeed, the report clearly stated the opinions, backed by relevant investigations and analysis ([49]ff).
Nettle and Gordon JJ, in dissent, would have allowed the appeals and declared that it was not a deed of company arrangement within the meaning of Pt 5.3A ([98]).
Read the decision on the High Court of Australia website.
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| Pipikos v Trayans [2018] HCA 39
12 September 2018 – Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
In brief: The High Court, by majority (Kiefel CJ, Bell, Gageler and Keane JJ), dismissed an appeal from the Supreme Court of SA, holding that considerations of authority and principle combined to require that the doctrine of part performance did not entitle the appellant to specific performance of a contract for the sale of land ([80]).
Under the Law of Property Act 1936 (SA), no action shall be brought on a contract for the sale of land without a written agreement, signed by the party to be charged (s 26(1)). This provision does not “affect the law relating to part performance” (s 26(2)) ([1]-[2]), which was summarised by Isaacs J in Cooney v Burns 32. as being that ([3]):
“a "bargain in fact made, though devoid of an enforceability either at law or in equity, has been so acted upon by partly performing it that for the defendant to recede from it at that stage would be a fraud on the plaintiff." (emphasis in original)”
In Maddison v Alderson,33. the Earl of Selborne LC said that ([4]):
“…"the acts relied upon as part performance must be unequivocally, and in their own nature, referable to some such agreement as that alleged".”
On Lord Selborne's approach, which “is unshaken by the course of authority in this Court” ([44]), the “acts on which the appellant relied were not sufficient to engage the doctrine of part performance” ([77]-[79]):
“Here, neither party performed any act that was unequivocally referable to the … property. There was no giving or taking of possession of that land. There were no other acts indicative of a change in the respective positions of the parties in relation to the land.”
Nettle, Gordon and Edelman JJ agreed with the majority that the appeal should be dismissed.
32. (1922) 30 CLR 216 at 233; [1922] HCA 8. See also at 226 per Knox CJ.
33. (1883) 8 App Cas 467 at 479. See also at 491 per Lord FitzGerald.
Read the decision on the High Court of Australia website.
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| The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40
12 September 2018 – Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)
In brief: The respondent was found guilty and convicted of 18 charges of sexual offences committed against his former foster daughter ([1]). These convictions were quashed by the Victorian Court of Appeal, which ordered a new trial ([2]). The Crown appealed to the High Court on the grounds that the Court of Appeal had erred in several respects, primarily related to admission of certain items of evidence ([40]).
The High Court unanimously allowed the appeal, on all grounds ([102]).
Finding that a recording of the complainant’s evidence, given at a previous trial, was admissible under s 381 of the Criminal Procedure Act 2009 (Vic),34. the High Court noted the complainant’s “strong preference to avoid giving evidence if at all possible” and “the fact that very experienced defence counsel” did not seek leave to cross-examine her ([43]):
“In those circumstances, no error is shown in the trial judge's conclusion that it was in the interests of justice that the recording be admitted. On the facts of this case, there were no interests of justice to be served by its exclusion.”
On the question of whether evidence of charged and uncharged acts was admissible as tendency evidence, under s 97 of the Evidence Act 2008 (Vic),35. the High Court was emphatic ([47]):
“The admissibility of tendency evidence in single complainant sexual offences cases should be as straightforward as possible consistent with the need to ensure that the accused receives a fair trial. With that objective, the Court has resolved to put aside differences of opinion and speak with one voice on the subject.
Henceforth, it should be understood that a complainant's evidence of an accused's uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant ….”
On the probity of tendency evidence, it was noted that ([61]):
“The question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ. Consequently, in an appeal against conviction to an intermediate court of appeal, or on a subsequent appeal to this Court, it is for the court itself to determine whether evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was.” (footnote omitted)
34. Section 381 provides that the court may admit such a recording “if it is in the interests of justice to do so”.
35. Section 97 restricts the admissibility of “Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had”.
Read the decision on the High Court of Australia website.
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| | The Court of Appeal publishes a bulletin containing summaries of its latest decisions of interest. Find below several such decisions from recent bulletins. |
| Roads and Maritime Services v Desane Properties Pty Ltd [2018] NSWCA 196
PUBLIC LAW – compulsory acquisition of property – issue of proposed acquisition notice – whether proposed acquisition notice complied with legislative requirements – Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – whether compliance with procedural requirements an essential pre-condition to the validity of acquisition – whether proposed acquisition notice was non-compliant with form approved by Minister – whether substantial compliance with approved form was sufficient – Interpretation Act 1987 (NSW), s 80(1) – whether approved form was consistent with empowering Act – whether Act required proposed acquisition notice to state the public purpose of acquisition
PUBLIC LAW – compulsory acquisition of property – whether land was sought to be acquired for an improper purpose – Roads Act 1993 (NSW), s 177(1) – whether purpose assessed at time of acquisition or time of notice
STATUTORY INTERPRETATION – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 11, 15, 33, 39, 69
CIVIL PROCEDURE – court of appeal – cross-appeals – whether to grant injunction restraining issue of proposed acquisition notice in circumstances where notice not invalid
Read the decision on the NSW Caselaw website.
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| Técnicas Reunidas SA v Andrew [2018] NSWCA 192
CONTRACT – discharge of contract inferred by agreement – abandonment – no need for express offer and acceptance
SOLICITORS – retainer – firm gave advice to client in building dispute with subcontractor – ICC arbitration commenced six months later – client retained another firm to act in arbitration – no response by client to overtures by first firm to act for it in arbitration – one year later, partners acting for subcontractor in building dispute and in arbitration became partners of first firm – firm retained confidential information of client arising out of its earlier retainer – firm put in place information barriers relating to its earlier involvement – client sought injunction preventing firm from acting for subcontractor in arbitration – whether earlier retainer terminated or abandoned – whether firm had shown no real risk of disclosure of confidential information – whether inherent jurisdiction to protect administration of justice and its appearance supported injunction – primary judge dismissed proceedings – appeal dismissed
Read the decision on the NSW Caselaw website.
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