| | | | | | | NCAT Legal Bulletin Issue 7 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 July to August 2017.
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| Commissioner of Taxation v Jayasinghe [2017] HCA 26
9 August 2017 - Kiefel CJ, Gageler, Keane, Gordon, Edelman JJ
In brief: The High Court unanimously allowed an appeal from the Full Federal Court, holding that the respondent was not entitled to exemption from taxation, as he was not a person who held an “office” in an international organisation within the meaning of s 6(1)(d)(i) of the International Organisations (Privileges and Immunities) Act 1963 (Cth), and, that the Commissioner of Taxation was not bound to exempt the respondent from taxation under the relevant provisions of the Taxation Administration Act 1953 (Cth) and Taxation Determination TD 92/153.
In construing s 6(1)(d)(i), the plurality (Kiefel CJ, Keane, Gordon and Edelman JJ) observed that “the word "office", although a general word, must not be read in isolation; it must be read in context”, citing Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1925) 35 CLR 449 at 455; [1925] HCA 5; Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213; [1976] HCA 36; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; [1985] HCA 48; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]; [1998] HCA 28; Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 at 28 [57]; [2015] HCA 14.
This involves, as the plurality’s reasons disclose, an analysis of the whole of the statutory provision the word appears in (at [34]); its relationship with surrounding statutory provisions (at [35]); and the relevance, if any, of any related extrinsic materials (at [40]).
Read the decision on the High Court of Australia website.
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| IL v The Queen [2017] HCA 27
9 August 2017 — Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In brief: The High Court, by majority (Gageler J and Gordon J dissenting), allowed an appeal from the New South Wales Court of Criminal Appeal, ordering that the decision below should be set aside and the appeal to that court dismissed (at [1], [91]).
The present appeal concerned the construction of s 18(1) of the Crimes Act 1900 (NSW), in circumstances where the appellant had been charged with “felony” or “constructive” murder, or alternatively, “manslaughter”, because the act which caused the deceased’s death was committed in the course of the joint criminal enterprise for an offence punishable by life imprisonment (at [3], [42]).
In their joint reasons allowing the appeal, Kiefel CJ, Keane and Edelman JJ held (at [25]) that s 18(1) of the Crimes Act is not engaged if a person kills himself or herself. It is worth noting that their Honours also engaged in an interesting discussion on the origins of s 18 of the Crimes Act, reviewing over 200 years of case law and commentary, concerning the distinction between killing another person and self-killing (at [7]-[21]).
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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| Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd [2017] NSWCA 184
28 July 2017 — Gleeson JA, Leeming JA, Sackville AJA
In brief: The Court of Appeal discussed (at [6]-[14]) the general law principle of retrospectivity, in relation to contracts. As a starting point, the Leeming JA (Gleeson JA agreeing) held (at [6]) that:
“[I]t is one thing for private parties to agree that their legal relations are to be taken to have been conducted on a particular basis, and for that agreement to have retrospective effect as between themselves. It is an entirely different thing for parties by their private agreement to alter with retrospective effect their relations with a third party. True it is that some general law doctrines have retrospective effect, but even so, the law is astute to have regard to the prejudice which such operation may have on third parties.”
In accordance with the authorities, the Court observed that, although parties to an agreement are generally entitled to alter retrospectively their rights between themselves, courts have resisted the retrospective alteration of the position of third parties, holding (at [7]-[9]) that:
“[7] McDougall J illustrated the distinction in Gilsan v Optus [No 2] [2005] NSWSC 38 at [6] (an appeal was allowed in part: [2006] NSWCA 171, but not in respect of this statement of principle):
“In principle, it should be open to parties to a contract to agree upon the date (including in the past) from which their legal relations commence to have effect, and in principle it should be open to the courts to enforce that agreement. Indeed, Gilsan did not submit otherwise. However, Gilsan submitted that an agreement made with retrospective effect between Optus and AT&T could not affect rights that Gilsan had against Optus that had accrued before the agreement was made.”
[8] To similar effect, Finn J said in South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 1541; 177 ALR 611 at [372]:
“Where partners agree that their partnership is deemed to have begun on a date earlier than the actual date at which they commence to carry on business, that agreement while binding on the parties inter se will not render the partners liable to third parties in respect of claims attributable to the period prior to the actual commencement date: see Lindley and Banks, §7-24. As Rowlatt J said in Waddington v O’Callaghan (1931) 16 TC 187 at 197: ‘You cannot alter the past in that way’.”
[9] Perhaps the clearest example is Rowe v Federal Commissioner of Taxation (1982) 13 ATR 110, where the husband and wife who were conducting a farming partnership entered into a deed on 16 May 1975 which purported to assign to a company the partners’ interests in the capital, assets and future profits of the partnership retrospectively with effect from 1 July 1974. The joint judgment of Deane, Fisher and Davies JJ confirmed that the income from the farming business was derived by the partners until May 1975, notwithstanding the partners’ agreement as between themselves that it was derived by the company from 1 July 1974. Their Honours said at 113:
“The Deed of Assignment plainly proceeded on the basis that the relevant property was effectively assigned as at and from 1 July 1974 and that the previously existing partnership between the taxpayers had come to an end on 30 June 1974. Whatever may have been the consequences as between the parties, this was a position which could not retrospectively be brought about either as regards third parties or for the purposes of taxation law.”"
Furthermore, the Court observed (at [10]) that, because this principle arises by operation of a general law doctrine, the protection against retrospective alteration afforded to third parties also applies to claims brought in equity, holding that (at [10]-[13]):
“[10] In Gilsan, McDougall J addressed the retrospective operation of rectification in equity, observing that a contract is rectified with retrospective effect, but because that is so, relief might be withheld where it might affect accrued rights of third parties, citing Coolibah Pastoral Co v The Commonwealth (1967) 11 FLR 173 at 190.
[11] There are other instances where courts have resisted the retrospective alteration of the position of third parties. One example was given by Hodgson JA, with whom Meagher JA agreed, in Citibank Ltd v Papandony [2002] NSWCA 375 at [68], dealing with rescission for fraudulent misrepresentation:
“If a subsequent rescission could have this effect, it would mean that, if A transfers property to B pursuant to a contract induced by B’s fraudulent misrepresentation, and B transfers some of this property in turn to C, a bona fide purchaser for value, and A subsequently rescinds the contract (being content to recover from B such property as B then retained), C might retrospectively become guilty of conversion. I do not accept that this could be so.”
[12] That passage was cited approvingly by Allsop P and Handley AJA in Perpetual Trustees Australia Ltd v Heperu Pty Ltd (2009) 76 NSWLR 195; [2009] NSWCA 84 at [79], and their Honours added at [80]:
“Like Hodgson JA, we have difficulty in understanding how a party with title when it acts can be guilty of conversion by reason of a later avoidance of his title at general law.”
[13] The same point was made by Chesterman JA, with the agreement of Martin J, in Westpac Banking Corporation v Hughes [2012] 1 Qd R 581; [2011] QCA 42 at [91]-[94].”
Sackville AJA (Gleeson JA and Leeming JA agreeing) considered, in detail, the construction of the phrase “discretionary trust” as contained in s 72 of the Payroll Tax Act 2007 (NSW) and how it operates alongside the principle of retrospectivity outlined above, in his reasons for decision (at [109]-[150]).
Read the decision on the NSW Caselaw website.
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| Chen v Health Care Complaints Commission [2017] NSWCA 186
31 July 2017 — Basten JA, Leeming JA, Payne JA
In brief: The Court of Appeal (Payne JA, Basten JA and Leeming JA) dismissed an appeal from the Occupational Division of the Tribunal. In doing so, the Court considered whether: - the Tribunal failed to apply an implied “probably permanently unfit” test, when it cancelled the appellant’s registration under s 149C of the Health Practitioner Regulation National Law (NSW) 2009 (NSW); and
- the Tribunal failed to take into account a relevant consideration, being evidence concerning the appellant’s current practice of medicine and the steps she had taken towards her rehabilitation.
In relation to the first appeal ground, the Court held (at [75]) that there was “no occasion to imply a “probably permanently unfit” limitation to the cancellation power in s 149C of the National Law.” Relevantly, s 149C provides:
“149C Tribunal may suspend or cancel registration in certain cases [NSW]
- The Tribunal may suspend a registered health practitioner’s registration for a specified period or cancel the registered health practitioner’s registration if the Tribunal is satisfied -
(a) the practitioner is not competent to practise the practitioner’s profession; or
(b) the practitioner is guilty of professional misconduct; or
(c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner’s profession; or
(d) the practitioner is not a suitable person for registration in the practitioner’s profession.”
The Court observed (at [59]) that the relevant starting point in construing this provision was to examine the governing statutory regime, being the National Law, holding that:
“The appellant’s case in support of such a condition on the cancellation power in s 149C relied heavily on statements drawn from cases dealing with applications under earlier iterations of the laws relating to medical professionals and under the various laws relating to the admission and regulation of legal professionals. When, as here, there is an explicit and detailed statutory scheme, a construction which commences by reference to constraints derived from cases decided under other regimes is contrary to well established principle: Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) (2001) 207 CLR 72 at [14]-[19] per Gaudron, Gummow, Hayne and Callinan JJ. As the Court observed at [19], “[t]he relevant statutory provision must govern”."
Furthermore, the Court cautioned against the reliance on case authorities concerning the tests for unsatisfactory professional conduct and professional misconduct under the Legal Professional Uniform Law (NSW) 2014 (NSW) and applying them to the relevant tests under the National Law, holding that:
“[61] The appellant’s submissions tended to assume that the test in the Legal Profession Uniform Law (NSW) and the National Law were relevantly similar. The definitions of unsatisfactory professional conduct and professional misconduct in the respective statutes, however, bear little relationship to each other….
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[65] To the extent that the appellant relies on what was submitted to be a relevant similarity between the National Law and the Legal Profession Uniform Law, it is sufficient to observe that the regulation of legal practitioners continues to be based upon the test of “good fame and character”, unlike the position under the National Law for medical practitioners where there is no such requirement: see ss 16 and 17 of the Legal Profession Uniform Law and r 10 of the Legal Profession Uniform Law Admission Rules (NSW).
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[67] The statutory language in the National Law does not involve any element of moral turpitude. Unlike the cases relied upon by the appellant here, which all involve some degree of moral culpability, there is no occasion to imply a test of “probably permanently unfit” to reflect an assessment of the character of the practitioner.”
In a separate, concurring judgment, Basten JA (Payne JA and Leeming JA agreeing) similarly observed (at [4]) that:
“[O]ne should be cautious in relying upon cases concerned with legal practitioners when dealing with the regulation of the medical profession. First, the institutional structures within which the respective professions operate are, and have been historically, different in significant respects. Secondly, the functions exercised by each profession differ significantly. To take merely an obvious example, an important purpose of regulating lawyers is to ensure that they deal properly with clients’ property and money. With respect to doctors, a significant purpose is to protect the physical integrity of patients.”
Basten JA’s reasons (at [4]-[20]) also traced the historical development of legislation regulating medical professionals, from the Medical Act 1858 (UK) to the National Law. For brevity, this interesting discussion has been omitted from the present summary.
In relation to the second appeal ground, the Court held (at [118]) that, although the Tribunal failed to take into account a letter concerning the appellant’s rehabilitation, the omission did not disclose an error of law as the letter did not amount to “substantial or consequential evidence in the case” (at [114]). As a starting point, the Court considered the authorities relevant to the error of law alleged, holding that:
“[103] In Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [65], this Court (per Basten JA with whom McColl and Simpson JJA agreed) accepted as correct the reasoning of Robertson J in SZRKT which held, inter alia, that to ignore or overlook apparently credible and relevant information, which might support an essential step in the reasoning process if the claim were to be upheld, may itself constitute a constructive failure to exercise the function conferred on the Tribunal.
[104] SZRKT has been approved by the Full Court of the Federal Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [70] and in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [47]-[54] and is consistent with the decision of the High Court in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1: see the discussion of this topic in Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) at [4.770].
[105] In Torbey Investments at [66] the Court also sounded a note of caution about the extent of the principle explained in SZRKT:
“Without departing from that reasoning, it is appropriate to strike a note of caution. A tribunal, like a court, is not obliged to refer to all the material before it which may be thought by a party, or even by the reviewing court, to constitute relevant evidence. Evidence is often repetitive and will be of variable reliability. Hundreds of pages of evidence may need to be reduced to a clear and succinct statement of written reasons. Comprehensiveness is a relative concept and must be balanced against other relevant values.””
In the present case, the Court held (at [112]) that the letter was not substantial or consequential for the following reasons:
“(1) The letter (set out at [94] above) simply contained bald generalisations. Dr Fang’s letter did not provide corroborative material of the appellant’s assertions that “she has learned from her past mistakes and no longer practices medicine in the manner which has given rise to these proceedings”.
(2) The letter related only to a very limited aspect of the appellant’s work at Campsie, with 10 patients.
(3) Dr Fang’s letter does not identify any particular records he reviewed or describe the expertise he applied in reviewing those records under the standard he described before baldly expressing the view that those records were compliant.
(4) Dr Fang’s letter does not expose any reasoning process.
(5) The fact that Dr Fang expressed bald generalisations about the appellant’s current compliance at Campsie was of no real consequence in this case.”
Read the decision on the NSW Caselaw website. |
| Kamm v State of New South Wales (No 4) [2017] NSWCA 189
1 August 2017 — Bathurst CJ, Beazley P, Payne JA
In brief: The Court of Appeal (Beazley P, Bathurst CJ and Payne JA agreeing) provided a succinct summary of the authorities on the standard of legal unreasonableness required to disclose an error of law, holding (at [67]-[70]) that:
“[68] The appellant also contended that his Honour’s decision was void as being unreasonable in the sense discussed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.
[69] In Li, the plurality, Hayne, Kiefel and Bell JJ, were of the opinion that the standard of unreasonableness is not limited to an irrational or bizarre decision, in other words, a decision so unreasonable that no reasonable person could have arrived at it: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 per Lord Greene MR. Their Honours, at [67], considered that the question to which the standard of reasonableness is addressed is whether the statutory power has been abused. In their Honours’ view, Lord Greene MR’s formulation in Wednesbury can be taken as recognition of the fact that an inference of unreasonableness may be objectively drawn in some cases, even where a particular error in reasoning cannot be identified.
[70] Their Honours explained, at [68], the application of Wednesbury unreasonableness in the same terms as the last category of House v The King (1936) 55 CLR 499 error, that is, that an inference of unreasonableness may be objectively drawn even where a particular error cannot be discerned, a principle that their Honours noted informed the reasoning of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360.
[71] Their Honours, at [72]-[74], identified other specific errors in decision-making that they considered may also be encompassed by unreasonableness. These included when the decision-maker, by reference to the scope and purpose of the statute, had committed a particular error in reasoning; had given disproportionate weight to some factor; or reasoned illogically or irrationally. Their Honours ultimately concluded, at [76], that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.”
Read the decision on the NSW Caselaw website.
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| Federal Court of Australia
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| Civil Aviation Safety Authority v Bellamy [2017] FCA 829
28 July 2017 — Tracey J
In brief: The Federal Court allowed an appeal against a decision of the Administrative Appeals Tribunal, holding that the AAT had erred in setting aside a decision of the Civil Aviation Safety Authority (CASA). That decision concerned the cancellation of the respondent’s private pilot’s license on the grounds that he was “not a fit and proper person” under reg 269(1)(d) of the Civil Aviation Regulations 1988 (Cth). Reg 269(1)(d) relevantly provides that:
“(1) Subject to this regulation, CASA may, by notice in writing served on the holder of an approval, authority, certificate or licence (an authorisation ), vary, suspend or cancel the authorisation if CASA is satisfied that one or more of the following grounds exists, namely:
…
(d) that the holder of the authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation…”
In overturning the AAT’s decision, the Court discussed, inter alia, the relevance of a criminal conviction in determining whether a person is a “fit and proper person” (at [40]-[49]) and the Court’s discretion to remit a matter to a differently constituted Tribunal (at [54]-[61]).
In relation to the first point, the Court held (at [43]) that, where a conviction is not the foundation of an exercise of power, as in the present case (citations omitted):
“[A]n administrative decision-maker may consider the facts on which the conviction is based.... Nevertheless, a conviction provides strong prima facie evidence of the facts upon which it is founded. A “heavy onus” falls on any person who seeks, in the Tribunal, to challenge such facts….”
It is worth noting that the “fit and proper person” test appears in suspension and cancellation provisions of various New South Wales licensing regimes, including ss 56 and 57 of the Home Building Act 1989 (NSW) and s 24 of the Firearms Act 1996 (NSW).
In relation to the second point, the Court held (at [56]) that the power to remit a matter to a differently constituted Tribunal turned on the facts of each case, observing that:
“[56] In Comcare v Broadhurst (2011) 192 FCR 497 at 515–517; [2011] FCAFC 39 at [88]–[95] Flick J and I considered the authorities relating to the exercise of the Court’s discretion to direct that, upon remittal, the matter be heard and determined by a different member. At 516–517 [94] we said that:
[t]he manner in which that power should be exercised, however, is to be resolved by reference to the facts and circumstances of each individual appeal. The power … should not be more confined than that. The exercise of the power should not be approached with any inclination that it should “usually” be exercised in one manner rather than another. Whether any specific direction or order should be made by this Court on appeal as to the constitution of the Tribunal, or whether the constitution of the Tribunal should be left for determination by the President, should not be constrained by any pre-determined formulae or by any attempt to characterise those factors where one order rather than another may be more appropriate.
See also Hollis v Comcare [2017] FCA 558 at [34] (Katzmann J).
[57] In Seltsam, Mason P (at [13], with whom Ipp JA agreed) contemplated a case where the interests of justice required a rehearing before a different tribunal member. While the particular case involved credibility-based findings, Mason P also indicated that the interests of justice may require a rehearing even where the credit of witnesses was not in issue. Such an order may be warranted where the appearance of justice might be compromised by a concern relating to prejudgment. Such a concern might exist even in the absence of a factual basis for suggesting that the original decision-maker might harbour a disposition in favour of the party who was originally successful: see at [14]. His Honour accepted that the power should be exercised with caution: at [15].”
Read the decision on the Federal Court of Australia website.
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| Australian Competition and Consumer Commission v We Buy Houses Pty Ltd [2017] FCA 915
11 August 2017 — Gleeson J
In brief: The Federal Court held that the respondents had contravened provisions of the Australian Consumer Law relating to misleading or deceptive conduct (s 18, ACL), false or misleading representations about goods or services (s 29, ACL), misleading conduct as to the nature of services (s 34, ACL) and misleading representations about certain business activities (s 37, ACL).
The Court’s reasons provide a useful summary of the legal principles governing those claims in respect of the requisite standard of proof (at [44]); how pleaded representations are to be analysed (at [50]-[59]); how the law treats representations in advertising ([60]-[63]), whether a representation constitutes a “puffery” and is, therefore, not actionable (at [64]-[68]); and how the law treats representations that are “half-truths” (at [69]-[72]).
In respect of the requisite standard of proof, the Court held (at [44]) that (citations omitted):
“The allegations made against the respondents are serious and must be proved on the balance of probabilities, taking into account the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matters alleged”
In respect of how representations are to be analysed, the Court held (at [53]) that “there are two matters to be decided”:
“[F]irstly, whether the pleaded representation is conveyed by the particular events complained of, and if so, whether the representation conveyed is false, misleading or deceptive or likely to mislead or deceive: Australian Competition and Consumer Commission v Telstra Corporation Ltd [2007] FCA 1904; (2007) 244 ALR 470 (“ACCC v Telstra”) at [14]-[15].”
Furthermore, the Court observed (at [45]-[49]) that, in the present case, “representations” included “representations as to future matters”, under s 4(1)(a) of the ACL, and “testimonials”, under s 29(1)(e) of the ACL, noting that:
“[46] Section 4 provides that in the case of a representation with respect to a future matter, unless evidence is adduced to the contrary, the person making the representation is taken not to have had reasonable grounds for making it, with the result that the representation will be taken to be misleading. Additionally, the person will not be taken to have reasonable grounds merely because such evidence is adduced. The fact that a person may believe in a particular state of affairs does not necessarily mean that there are reasonable grounds for that belief: Cummings v Lewis (1993) 41 FCR 559 at 565 per Sheppard and Neaves JJ.
[47] Section 29(2) provides, for the purposes of applying s 29(1), in relation to a proceeding concerning a representation of a kind referred to in s 29(1)(e) or (f), the representation is taken to be misleading unless evidence is adduced to the contrary.”
The following principles relevant to whether a representation is false, misleading or deceptive, or likely to mislead or deceive have been summarised from the Court’s reasons (at [54]-[58]): - In determining whether a statement is false or misleading, it is necessary to consider the context within which the statement was made: Hadgkiss v CFMEU [2008] FCAFC 22; Reasons at [54];
- Whether or not conduct is misleading or deceptive is a question of fact to be determined objectively and upon the basis of the impugned conduct being viewed as a whole and in its full context: Specsavers Pty Ltd v Luxottica Retail Australia Pty Ltd [2013] FCA 648 at [49]; Reasons at [55];
- A representation will be false, misleading or deceptive or likely to mislead or deceive if it if it has a tendency to lead into error, or if it induces or is capable of inducing error: Reasons at [56];
- Whether a representation is false, misleading or deceptive or likely to mislead or deceive is ‘quintessentially’ a question of fact, which should not be complicated or over-intellectualised: Australian Competition and Consumer Commission v Telstra Corporation Ltd [2004] FCA 987; (2004) 208 ALR 459 at [49] (Gyles J); Reasons at [57];
- The question is whether a not insignificant number of reasonable persons within the class have been misled or deceived or are likely to be misled or deceived by the conduct, whether in fact or by inference: ACCC v Dateline Imports at [30]; Reasons at [58];
- The question of what is the natural and ordinary meaning conveyed by a publication or conduct is to be ascertained by the Court applying an objective test of what ordinary or reasonable readers or consumers in the class would have understood as the meaning: ACCC v Dateline Imports at [31]; Reasons at [58]
- It follows that where the alleged contravention of s 52 of the TPA involves the making of a representation to the public or a class of the public, it is necessary for the Court to consider what ordinary persons in the class to which the representation is made would understand by the representation, and whether a not insignificant number of such persons would have that understanding: ACCC v Dateline Imports at [32]; Reasons at [58]
In respect of how the law treats representations in advertising, the Court held that:
“[60] Where representations are directed to members of the public at large, the representations must be judged by their effect on “ordinary” or “reasonable” members of the class: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 634; (2014) 317 ALR 73 (“Coles”) at [43] ... The ordinary or reasonable person likely to be affected by advertising directed to the public at large or sections of the public may be intelligent or not, may be well educated or not, will not likely undertake “an intellectualised process of analysis … and will be likely affected by an intuitive sense of attraction rather than by any process of analytical or logical choice”: Coles at [43].
[61] In assessing advertising material, the ‘dominant message’ of the material will be of crucial importance: Coles at [42], citing TPGat [45]. Where advertising material uses simple phrases and words evoking attractive notions, but without necessarily precise meaning, ambiguity or reasonably available different meanings may well arise. If one or more of the reasonably available different meanings is misleading, the conduct may well be misleading or deceptive, or false and misleading: Coles at [47].
[62] As stated by Lee J in Australian Competition and Consumer Commission v Target Australia Pty Ltd [2001] FCA 1326; [2001] ATPR 41-840 at [15], “... it is often the case that the first impression will be the lasting impression”.
[63] It is not necessary to prove the conduct in question has misled anyone. The question whether conduct is misleading or deceptive is to be assessed by reference to the reaction of the hypothetical representative member of the class to whom the representation is directed: .au Domain Administration Ltd v Domain Name Australia Pty Ltd (2004) 207 ALR 521 at [25] and [26].”
In respect of the whether a representation constitutes a puffery and is therefore not actionable, the Court held that (citations omitted):
“[64] Whether a representation constitutes puffery or marketing exaggeration and, consequently, is not actionable turns on the particular facts considered in light of the ordinary incidents and character of commercial behaviour.… A claim will not be regarded as puffery if there is a definitive statement as to a characteristic or consequence of the claim.
[65] By corollary, a characteristic often attributed to puffery is that it is “incapable of being proved to be correct or incorrect”…
[66] In Jainran at [117], Bryson AJ gave as examples of puffery statements such as “The greatest show on earth”, “the best car in its class on the market today”, “leading a new wave of talent” and “we’ve already been getting interest in this property”.
[67] In Kaye, at [123], Kenny J held that representations to the effect that Mr Kaye could turn or make ordinary Australians into property millionaires by following his strategies; and that he would demonstrate this claim, were not puffery in the context in which they were made.
[68] In Stuart Alexander and Co (Interstate) Pty Ltd v Blenders Pty Ltd (unreported, Lockhart J, 25 September 1981), Lockhart J said, in considering comparative television advertising for coffee:
I think a robust approach is called for when determining whether television commercials of this kind are false, misleading or deceptive. The public is accustomed to the puffing of products in advertising. Although the class of persons likely to see this commercial is wide, it is inappropriate to make distinctions that are too fine and precise.”
In respect of how the law treats half-truths, the Court held that:
“[69] Half-truths may be misleading by the insufficiency of information that permits a reasonably open but erroneous conclusion to be drawn: Coles at [46], citing Fraser v NRMA Holdings Ltd [1994] FCA 1397; (1994) 124 ALR 548 at 563 and Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc [1992] FCA 630; (1992) 38 FCR 1 at 50.
[70] Even information that is literally true can be misleading or deceptive: National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] FCAFC 90; (2004) 49 ACSR 369 at [49].
[71] In Fraser v NRMA Holdings Ltd (1995) 55 FCR 452, at 467 the Full Federal Court stated:
Whilst s 52 does not by its terms impose an independent duty of disclosure which would require a corporation or its directors to give any particular information to members … where information for that purpose is promulgated, unless the information given constitutes a full and fair disclosure of all facts which are material to enable the members to make a properly informed decision, the combination of what is said and what is left unsaid may, depending on the full circumstances, be likely to mislead or deceive the membership.
[72] In Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342 at [388], White J stated:
The principles relevant to this part of ASIC's claim are settled. Many of the principles were discussed in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357, in particular, at [16]-[21] (French CJ and Kiefel J). I take the applicable principles to be as follows:
- Conduct involving silence or omission may, in some circumstances, constitute misleading or deceptive conduct;
- In considering whether conduct is misleading or deceptive, silence is to be assessed as a circumstance like any other;
- Mere silence without more is unlikely to constitute misleading or deceptive conduct. However, remaining silent will be misleading or deceptive if the circumstances are such as to give rise to a reasonable expectation that if some relevant fact does exist, it will be disclosed;
- A reasonable expectation that a fact, if it exists, will be disclosed will arise when either the law or equity imposes a duty of disclosure, but is not limited to those circumstances. It is not possible to be definitive of all the circumstances in which a reasonable expectation of disclosure may arise but they may include circumstances in which a statement conveying a half truth only is made, circumstances in which the representor has undertaken a duty to advise, circumstances in which a representation with continuing effect, although correct at the time it was made, has subsequently become incorrect, and circumstances in which the representor has made an implied representation;
..."
Read the decision on the Federal Court of Australia website. |
| Nigam v Minister for Immigration and Border Protection [2017] FCAFC 127
16 August 2017 — Siopis, Griffiths and Charlesworth JJ
In brief: The Full Federal Court refused to grant leave to an appellant, who sought to raise arguments on appeal that were not relied upon during the proceedings at first instance (at [36]). In doing so, the Court considered the relevant authorities concerning whether or not leave should be granted to an appellant seeking to raise new arguments on appeal:
“[31] In University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68 the High Court said (at ALR 71):
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
[32] The same considerations apply on an appeal to the Full Court of this Court: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543. The Court has a discretion to allow the introduction of the new grounds if it be “expedient and in the interests of justice” to do so: Gomez at [18] (Hill, O’Loughlin and Tamberlin JJ); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ).
[33] In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 Lander J refused leave to an appellant to introduce new grounds on an appeal notwithstanding that the opposing party would not have been prejudiced by the grant. His Honour said (at [30]):
… There are good reasons why this Court should not be made de facto the Court of original jurisdiction when sitting on appeal. Otherwise its role as an intermediate Court of Appeal will be undermined. The High Court should not be burdened by applications for leave to appeal from decisions of this Court which have not been reviewed.”
Read the decision on the Federal Court of Australia website.
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