| | | | | | | | NCAT Legal Bulletin Issue 7 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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| Prince Alfred College Incorporated v ADC [2016] HCA 37
5 October 2016
In brief: The High Court unanimously allowed an appeal from the Full Court of the South Australian Supreme Court concerning the granting of an extension of time under the Limitation of Actions Act 1936 (SA). In 1962, the respondent, a 12 year old boarder at Prince Alfred College (PAC), was sexually abused by Bain, a housemaster. In 1997, the respondent decided not to sue PAC and accepted its offer to pay his medical and legal expenses to date and his son’s school fees. In 2008, the respondent commenced proceedings against PAC. The primary judge did not grant an extension of time. The High Court held that the Full Court erred in granting an extension of time under s 48(3) of the Limitation of Actions Act, which (relevantly) allows a court to extend time if it is satisfied that facts material to the plaintiff's action were not ascertained until after that time and the action is instituted within 12 months after those facts were ascertained and that it is just in all the circumstances. The Full Court’s error arose from its treatment of the following factors: the absence of witnesses ([101]), the loss of relevant evidence ([85], [102]–[104]) and PAC’s arrangements with respondent in 1997 ([106]). At [105], the High Court said:
Where a trial is conducted long after the events which gave rise to the dispute, the risk that the trial will be a mere simulacrum of the process of doing justice becomes greater with the passage of time. The onus is upon the party claiming an extension of time to show that a fair trial may be had now, notwithstanding that passage of time. That onus is not discharged by saying that the putative defendant should have been more astute to conserve its own interests by anticipating litigation that did not eventuate until many years after the expiration of the limitation period.
The High Court also considered the issue of vicarious liability (at [38]-[85]), but did not determine it in circumstances where it should not have been decided by the primary judge and revisited by the Full Court due to “real deficiencies in the available evidence” ([115], [119]). Nevertheless, the High Court provided guidance on vicarious liability of employers for wrongful or criminal acts of employees and said (at [81]):
Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the "occasion" for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.
Read the decision on the High Court of Australia website.
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| Lyons v Queensland [2016] HCA 38
5 October 2016
In brief: The High Court dismissed an appeal from the Queensland Court of Appeal on anti-discrimination law. The issue was whether a district court registrar had unlawfully discriminated against the appellant, a profoundly deaf person, by excluding her from a jury panel because she requires the services of an Australian Sign Language (Auslan) interpreter ([1]). The High Court held that, absent specific legislative provision, Queensland law does not permit an Auslan interpreter to be present during the jury's deliberations ([37]). Consequently, the appellant was ineligible for jury service and “not qualified to serve as a juror”. Under the Jury Act 1995 (Qld), the registrar was required to exclude the appellant from the jury panel and the exercise of this power did not constitute unlawful discrimination ([38]). In a separate judgment, Gageler J considered how the two statutory imperatives (the prohibition against discrimination and the definition of persons not eligible for jury service) are to be reconciled. Rather than approach the question as one of inconsistency, Gageler J said (at [52]):
The better answer is that to act in the administration of the Jury Act solely to give effect to the definition in s 4(3)(l) is not to discriminate against the person to whom the definition applies either by way of direct discrimination or by way of indirect discrimination. Leaving the satisfaction of other elements of those two types of discrimination entirely to one side, the act cannot be direct discrimination because the sole reason for it is to give effect to the definition and the act cannot be indirect discrimination because (assuming the act to involve the imposition of a term) a term that does no more than give effect to the definition cannot be unreasonable.
Read the decision on the High Court of Australia website.
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| Cunningham v Commonwealth [2016] HCA 39
12 October 2016
In brief: The High Court unanimously held that amendments to the Parliamentary Contributory Superannuation Act 1948 (Cth) and the Remuneration Tribunal Act 1973 (Cth), and certain Determinations made by the Remuneration Tribunal, did not constitute an acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution. Further, a majority of the Court reached the same conclusion with respect to the enactment of, and amendments to, the Members of Parliament (Life Gold Pass) Act 2002 (Cth).
Read the decision on the High Court of Australia website.
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| Ainsworth v Albrecht [2016] HCA 40
12 October 2016
In brief: The High Court unanimously allowed an appeal from the Queensland Court of Appeal concerning the dispute resolution scheme created by the Body Corporate and Community Management Act 1997 (Q). That scheme allowed an adjudicator to order that a proposal be approved, notwithstanding dissent by a lot owner, if the opposition to the proposal was unreasonable in the circumstances. The High Court held that the adjudicator and the Court of Appeal erred in asking the wrong question (whether the Body Corporate’s decision was reasonable instead of whether the opposition by lot owners was unreasonable), and in finding that opposition to the proposal was unreasonable. The lot owners’ opposition to the proposal was not unreasonable where the proposal would have the effect of “appropriating part of the common property to the exclusive use of the owner of another lot, for no return to the body corporate or the other lot owners; altering the features of the common property which it exhibited at the time an objecting lot owner acquired his or her lot; and potentially creating a risk of interference with the tranquillity or privacy of an objecting lot owner” (at [55]).
Read the decision on the High Court of Australia website.
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| Blank v Commissioner of Taxation [2016] HCA 42
9 November 2016
In brief: The High Court unanimously dismissed an appeal from the Full Federal Court and held that certain payments were income according to ordinary concepts and therefore assessable income under the Income Tax Assessment Act 1997 (Cth). The lump sum payments were paid in instalments to the appellant by Glencore, after notice of termination of his employment, pursuant to an incentive profit participation agreement. That agreement stated the payments were “deferred compensation” and “in consideration of the services to be rendered” by the appellant as an employee of Glencore.
Read the decision on the High Court of Australia website.
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| Comcare v Martin [2016] HCA 43
9 November 2016
In brief: The High Court unanimously allowed an appeal from the Full Federal Court concerning “the causal connection required to meet the exclusion from the Safety, Rehabilitation and Compensation Act 1988 (Cth) … of an injury suffered by an employee ‘as a result of’ reasonable administrative action” (at [1]). In the Full Federal Court, Murphy J construed “as a result of” as requiring the application of a “common sense” approach to causation. The High Court restated its earlier doubts as to “whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm” (at [42]) and held that the phrase “as a result of” in s 5A(1) referred to the test of causation spelt out in s 5B(1) of the Safety, Rehabilitation and Compensation Act. More generally, the High Court stated that (at [42]):
The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose.
Read the decision on the High Court of Australia website.
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| Timbercorp Finance Pty Ltd (in liquidation) v Collins; Timbercorp Finance Pty Ltd (in liquidation) v Tomes [2016] HCA 44
9 November 2016
In brief: The appellant, Timbercorp Finance, provided loans to investors in managed investment schemes operated by its parent company, Timbercorp. Each company was a member of the Timbercorp Group, which was placed in liquidation in June 2009. A group proceeding was commenced against members of the Timbercorp Group and the respondent to each High Court appeal did not opt out. The group proceedings were unsuccessful. Timbercorp Finance subsequently commenced proceedings against the two respondents and contended that they should be estopped from pursuing defences because they could and should have raised them in the group proceedings. The High Court unanimously dismissed the two appeals, holding that the principles from Anshun did not preclude the respondents from raising the issues. The High Court rejected the submission that an Anshun estoppel is made out by reference to similarities between the matters raised in the two proceedings, holding instead that ([56]):
An Anshun estoppel is not based upon degrees of similarity, which may be a matter of impression. It was made clear in Anshun that there could be no estoppel "unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it" (emphasis added). It was further explained:
"Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding."
Read the decision on the High Court of Australia website.
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| | | Bankstown Trotting Recreational Club Ltd v Chisholm [2016] NSWCA 274
5 October 2016 - Bathurst CH, Beazley P and Sackville AJA
President Beazley considered the authorities on the principle of non-derogation from grant at [82] to [89]. The following principles emerged (quoted from the decision’s headnote):
It is well established that a grantor must not derogate from grant. The principle of non-derogation from grant operates such that a lessor may not take away the means of enjoying that which has been granted.
The principle of non-derogation from grant, in relation to leasehold interests, is appropriately conceptualised as an implied covenant or agreement by the lessor not to do anything to disturb or derogate from the lessee’s entitlements under the lease. The scope of this covenant will always depend on the scope and terms of the relevant grant.
The grant by a lessor of an interest in land, such as an easement for parking burdening the leased land and contrary to the lessee’s entitlement to exclusive use of that land, will constitute a derogation from grant.
Read the decision on the NSW Caselaw website.
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| Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277
11 October 2016 - Beazley ACJ, Gleeson and Payne JJA
The proceedings raised the question of the proper construction of the Local Court’s power under s 24(4) of the Local Court Act 2007 (NSW) to deal with contempt of that court. The provision is substantially the same as s 73 of the NCAT Act. Justice Gleeson said (at [77]-[78]):
The primary judge did not err in concluding that the Local Court must afford procedural fairness to Ms Dangerfield, as the proposed contemnor, before exercising the power of referral under s 24(4) of the Local Court Act.
It is only necessary to add, as Brennan J observed in Kioa v West (at 626), that once “it is established that the exercise of a power is conditioned on the observance of the principles of natural justice, the content of the principles to be observed is determined in the light of the particular circumstances.” In a case such as the present, procedural fairness required that the magistrate inform Ms Dangerfield, as the proposed contemnor, about the two options available to his Honour, either to exercise the summary jurisdiction of the Local Court to deal with the matter of contempt or refer the matter to the Supreme Court, and invite submissions on which of those courses should have been taken. For the opportunity of making submissions to be meaningful in the circumstances of this case, involving an indigenous woman with no legal background, a reasonable and fair procedure would also involve the opportunity to obtain legal advice.
Read the decision on the NSW Caselaw website.
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| Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290
24 October 2016 - McColl, Macfarlan and Leeming JJA
Justice McColl considered the various types of appeals in the context of construing s 17 of the Crimes (Appeal and Review) Act 2001 (NSW) (at [59]–[61]; footnotes omitted):
An “appeal” is always a creature of statute. The words “appeal” and “rehearing” may be used in a number of senses. Further, the word “rehearing” has been used in statutes, or employed in construing statutes, to indicate, in differing senses, the nature of the task to be performed by an appellate court. The variable usage of these terms is such that the precise nature of the statutory remedy of appeal afforded to a dissatisfied litigant, and the procedures attendant upon it, will ultimately depend upon the provisions of the statute creating the right of appeal. However the context of the term, the history of the legislation and the surrounding circumstances will also be relevant.
Broadly speaking, there is a recognised distinction between first, appeals in the strict sense – in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given, secondly, appeals de novo – where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error (appeal de novo), and, thirdly, appeals by way of rehearing – where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error and, in some cases, has power to receive additional evidence (error based appeal). In the latter case, although the appeal is described as being “by way of rehearing”, it does not “call for a fresh hearing or hearing de novo [and] the court does not hear the witnesses again.”
One of the indicia of a rehearing function is the conferral of a discretion on an appellate body to admit further evidence. Such a power is of a remedial nature conferred “to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures.”
Read the decision on the NSW Caselaw website.
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| Bechara trading as Bechara and Company v Bates [2016] NSWCA 294
1 November 2016 - Beazley P; Meagher JA; Payne JA
The NSW Court of Appeal considered whether the Chorley exception to the principle that self-represented parties cannot recover legal costs applies to self-represented barristers, such that they may claim for their own professional time spent in preparing and conducting proceedings. The Chorley exception provides that a self-represented solicitor may claim professional costs. The Court noted that there is “no authority of the High Court or an intermediate Court of Appeal as to whether the Chorley exception applies to a self-represented barrister” (at [30]) and considered varying first instance authority (at [32]-[35]). The Court considered whether the present costs regime is materially different to that considered by the High Court in Guss v Veenhuizen (at [51]-[64]) but, in the absence of a contradictor, the Court did not “finally determine the important questions of construction” ([66]). The Court took Ms Bechara to have conceded the point by not putting on submissions and awarded the barrister costs.
Read the decision on the High Court of Australia website.
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| | Victorian Court of Appeal
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| Pham v Legal Services Commissioner [2016] VSCA 256
25 October 2016 - Redlich and Kaye JJA and Cavanough AJA
Mr Pham, a lawyer, made a statutory declaration that he had worked, on average, 17.5 hours per day, 7 days per week, for about 7.5 months in support of his application to the Legal Services Board to have the supervisory condition removed from his practising certificate. The Board refused the application and the Legal Services Commissioner brought disciplinary proceedings against Mr Pham. The VCAT found that the first charge had been established and suspended Mr Pham’s practising certificate and imposed other conditions relating to his return to practice. This decision was upheld on appeal to the Supreme Court. The Court of Appeal considered the meaning of “professional misconduct” at [77]-[84], which it summarised as follows (at [85]):
First, in order that the conduct, alleged against the applicant, constitute ‘misconduct’, it must be conduct that would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency. Secondly, to constitute ‘professional misconduct’, as alleged in the first charge brought by the Commissioner, the conduct of the applicant, as found by the Tribunal, must have been sufficiently closely connected with legal practice by the applicant, notwithstanding that it did not take place in the course of that practice.
The Court of Appeal also rejected Mr Pham’s contention that the principles of procedural fairness preclude a Tribunal form dealing with the issue of penalty before it has made a conclusion on the question of liability (at [166]):
The foregoing review of the additional authorities including those referred to by Cavanough AJA does not, in our view, affect the proposition established by the authorities to which we have referred, namely, that there is no universal rule that the principles of procedural fairness require, in each case, that a ‘two stage process’ be adopted, whereby the issue of the guilt must be determined before submissions are made in relation to the question of penalty or disposition. Rather, as our discussion of the cases demonstrates, the question is whether in a particular case the person, who has been the subject of disciplinary proceedings, has been afforded a reasonable and fair opportunity to address the issue of penalty or disposition. As we have noted, in a number of cases, particularly where the allegations against the person are numerous or complex or where there may be multiple bases for finding guilt, that requirement may only be satisfied where a two stage procedure is adopted. This was not such a case. Contrary to the submissions made by the applicant in this case, there is no established principle of law requiring that, in each case, such a procedure must be adopted.
However, the Court of Appeal did indicate that (at [167]):
… such a combined procedure is generally undesirable. It compels a party to advance arguments upon the assumption that facts that are in dispute have been found against them and thus makes it difficult for the party to advance all that can be said in mitigation. It may, in certain circumstances … work a real injustice if it is difficult to anticipate the basis upon which adverse findings are likely to be made.
Read the decision on the BarNet Jade website.
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| | Federal Court of Australia
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| Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97
19 July 2016 - Dowsett, Tracey and Bromberg JJ
The Full Federal Court summarised the legal principles governing a grant of leave to appeal from an interlocutory decision (at [13]-[17]), quoting Ashby v Slipper [2016] FCAFC 63:
The test for granting leave to appeal from an interlocutory judgment comprises two questions:
(1) whether, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and
(2) whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
The Court also discussed the principles governing the staying of civil proceedings in circumstances where criminal proceedings are pending (at [18]-[27]) and extracted the following principles from Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46:
(i) where both civil and criminal proceedings are pending, a stay of the civil proceeding will be ordered where “the interests of justice require such an order”: Zhao (HC) at [36];
(ii) a court will not grant a stay of a civil proceeding merely because related charges have been brought against an accused and criminal proceedings are pending: Zhao (HC) at [35];
(iii) to warrant a stay of the civil proceeding, “it must be apparent” that the accused “is at risk of prejudice in the conduct of his or her defence in the criminal trial”: Zhao (HC) at [35];
(iv) the risk of prejudice must be real and, in considering what the interests of justice require, that risk is to be weighed against the prejudice that a stay of the civil proceeding would occasion: Zhao (HC) at [47] and [50].
Read the decision on the BarNet Jade website.
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| Walker v Sell [2016] FCA 1259
27 October 2016 - Bromwich J
The appellant purchased a car from the respondent for $135,000. Both purchaser and vendor believed that the car was a genuine 1970 GTHO model Ford Falcon Sedan. This was proved false; the car was a different Ford worth only $25,000. Justice Bromwich held that the “the private sale of the car by [the respondent] was not in trade or commerce because it was not done in the course of a business activity or arising in a business context” (at [76]; emphasis added). From this it followed that neither s 18 nor s 56 of the ACL applied. Nonetheless, the Court considered whether s 18 of the Victorian Goods Act applied.
The decision provides guidance on the meaning of “sale of goods by description” as it appears in s 18 of the Victorian Goods Act (and in s 18 of the Sale of Goods Act 1923 (NSW)) (at [106]-[107]):
What emerges from Harlingdon is that emphasis must be placed on the word “by” in the phrase “sale of goods by description” in the English provision equivalent to s 18 of the Goods Act to indicate that the goods in question were being sold principally, if not entirely, by reference to its description rather than by reference to the individual item itself. The description must, objectively, be relied upon to a sufficient degree, and be so influential, that it is an essential term. It must be “within the reasonable contemplation of the parties that the buyer is relying on the description” for it to be a sale by description. That will most readily and indeed invariably be the case when the goods are not seen by the purchaser.
When the goods have in fact been seen by the purchaser and even more so when the circumstances provide for a reasonable opportunity for examination in order to ascertain that the goods are indeed what they are referred to as being in the sale process, a careful consideration of the facts and circumstances of the sale is required, including as to what was said, both orally and in writing. Objective reliance is likely to be the critical fact, if not determinative, in an asserted sale by description case in which there was a reasonable opportunity for inspection prior to the purchase transaction being concluded and title passing. Applied to the facts in this case, the live question is whether Mr Walker has discharged the onus of showing objective reliance by him on Mr Sell’s statement as to what the model of the car really was.
Read the decision on the BarNet Jade website.
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| | | Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2016] NSWSC 1309
16 September 2016 - Black J
Justice Black summarised some useful legal principles governing the law of contempt including (at [23]):
The relevant legal principles are well established and did not appear to be substantially in contest… a person who is not personally bound by a court order or an undertaking to the court will be guilty of contempt if, with knowledge of the order or undertaking, he or she causes that order or undertaking to be thwarted, on the basis that he or she knowingly impeded or interfered with the administration of justice: CCOM Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524 at 530–531; Reid v Howard (1993) 31 NSWLR 298 at 308–309; Zhu v Treasurer of the State of New South Wales [2004] HCA 56; (2004) 218 CLR 530 at 571–572; Sigalla v TZ Ltd [2011] NSWCA 334 at [14]–[17]; Baker v Paul [2013] NSWCA 426 at [20].
Read the decision on the NSW Caselaw website.
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