| | | | | | | | NCAT Legal Bulletin Issue 8 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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| Bywater Investments Limited v Commissioner of Taxation [2016] HCA 45
16 November 2016
In brief: The appellant companies claimed that they were not Australian residents for income tax purposes. The primary judge found that the directors of each appellant were resident abroad and met abroad, but that appellants were Australian residents for income tax purposes because the central management and control of each was exercised in Australia. The “real business” of each — share trading — was conducted by an individual in Sydney. The High Court unanimously dismissed the appeals, holding that (at [77]):
“the residence of a company is first and last a question of fact and degree to be answered according to where the central management and control of the company actually abides. As a matter of long-established authority, that is to be determined, not by reference to the constituent documents of the company, but upon a scrutiny of the course of business and trading.”
Read the decision on the High Court of Australia website.
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| Castle v The Queen [2016] HCA 46
16 November 2016
In brief: The High Court unanimously allowed two appeals from a Court of Criminal Appeal (SA) decision, which had dismissed the appellants’ appeals against murder convictions. The CCA identified an error in the primary judge’s approach — exculpatory evidence was left as an admission (in that the primary judge did not direct that, contrary to the prosecutor's submission, the evidence was not capable of being understood as an admission) — but concluded that no substantial miscarriage of justice occurred because the “admission” was unlikely to have had any influence on the verdicts (at [64]). The High Court reasoned that the jury may have convicted on strength of the “admission” and held that (at [65]):
“The question was not whether the circumstantial case was so strong as to overwhelm the weight of an admission, but whether the jury might regard the exculpatory assertion as itself a sufficient basis to entertain a doubt as to the strength of the circumstantial case.”
Read the decision on the High Court of Australia website.
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| Simic v New South Wales Land and Housing Corporation [2016] HCA 47
7 December 2016
In brief: ANZ issued two instruments (unconditional undertakings) to the non-existent New South Wales Land & Housing Department at the request of Nebax. Nebax and the NSW Land and Housing Corporation (the Corporation) had entered into a construction contract and the Corporation required Nebax to provide the undertakings as security. The appellant, a director of Nebax, had given the incorrect details to ANZ. The High Court held that the undertakings could not be construed as being in favour of the Corporation (see [84]-[101]), but the finance applications and the undertakings should be rectified to refer to the Corporation (see [102]-[118]). Rectification was appropriate because it was the actual common intention of the parties that the undertakings should enure to the benefit of the party with which Nebax entered into the construction contract, ie the Corporation (see [105]).
Read the decision on the High Court of Australia website.
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| The Queen v Kilic [2016] HCA 48
7 December 2016
In brief: The High Court unanimously allowed an appeal from the Victorian Court of Appeal on manifestly excessive sentences and current sentencing practices. The CA had quashed sentences imposed by the sentencing judge, holding that there was “such a disparity between the sentence imposed [for the principal offence] and current sentencing practice as illustrated by the authorities relied upon by the parties" that it was apparent that there had "been a breach of the underlying sentencing principle of equal justice” (at [2]). The High Court held that, in doing so, the CA had
“impermissibly treated the sentences imposed in the few cases mentioned as defining the sentencing range and, on that basis, concluded that, because the sentence imposed in this case exceeded the sentences imposed in all but one of the cases referred to, the sentence imposed in this case was beyond the range of available sentences.” (at [24])
Read the decision on the High Court of Australia website.
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| Australian Competition and Consumer Commissioner v Flight Centre Travel Group Limited [2016] HCA 49
14 December 2016
In brief: Flight Centre attempted to induce three international airlines to agree not to discount international airline tickets offered directly to customers. The ACCC contended that this contravened s 45(2)(a)(ii) of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010), which prohibited contracts, arrangements or understandings that have the purpose, or would have or be likely to have the effect, of substantially lessening competition. The issue before the High Court was whether Flight Centre was in competition with the three airlines (see [2], [25]). The High Court (by majority, French CJ dissenting) allowed the appeal, holding that Flight Centre was in competition with each airline in a market for the supply, to customers, of contractual rights to international air carriage (see [26]). This was notwithstanding that Flight Centre was an agent for each of the airlines.
Read the decision on the High Court of Australia website.
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| New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50
14 December 2016
In brief: The appellant claimed, under s 36 of the Aboriginal Land Rights Act 1983 (NSW), two parcels of land in Berrima. Section 36(1) of that Act defines “claimable Crown lands” and s 36(1)(b) excludes land which is lawfully used or occupied. The claim was refused by the Crown Lands Ministers on the basis that the claimed land was "lawfully used and occupied" (see [3]). The High Court held that the expression “lawfully used or occupied” is better understood by separate consideration of the words “used” and “occupied” (at [14]) and that the claimed land was lawfully occupied by reference to the activities taking place on it.
Read the decision on the High Court of Australia website.
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| | Davis v NSW Land and Housing Corporation [2016] NSWCA 325
25 November 2015 - McColl, Meagher and Leeming JJA
Davis was the sole tenant of residential premises under a residential tenancy agreement (RTA) with the respondent Corporation. A police search of the premises located drug supply paraphernalia apparently belonging to Davis’s husband, another occupant of the premises. The Corporation applied to NCAT seeking an order terminating the RTA pursuant to s 91 of the Residential Tenancies Act. The Tribunal terminated the RTA and Davis’s appeal to the Appeal Panel was unsuccessful. The Appeal Panel’s decision was upheld by the Supreme Court, which, in turn, was upheld by this CA decision.
Justice McColl considered the nature of an appeal from NCAT’s Appeal Panel to the Supreme Court (at [76]-[79], footnotes omitted):
76 Three points should be noted about an appeal to the Supreme Court “on a question of law” such as that for which s 83(1) of the NCAT Act provides.
77 First, on such appeal, the existence of a question of law is not merely a qualifying condition to the right of appeal, but the question of law alone is the subject matter of the appeal. The Supreme Court cannot engage in a “review of the merits” of the decision.
78 Secondly, such an appeal is in the nature of a judicial review in which it is necessary to examine for legal error what has been done in the Appeal Panel. That will almost inevitably require consideration of the Tribunal’s findings to determine whether the Appeal Panel’s conclusion on the question of law identified in respect of the Tribunal’s reasons was open.
79 Thirdly, on such an appeal, in certain circumstances, a new issue, not raised before the Tribunal, may be raised. In considering whether to permit that course in the exercise of the court’s discretion, the court will take into account Coulton v Holcombe considerations. It will also take into account considerations specific to the limited nature of an appeal from the Tribunal on a question of law, for example that referred to by Gummow J in Federal Commissioner of Taxation v Raptis, “that there is difficulty in finding an ‘error of law’ in the failure in the Tribunal to make a finding first urged in this Court.”
Justice McColl also considered (in obiter) the proper construction of s 91 of the Residential Tenancies Act (at [98]-[112]). Section 91(1)(a) provides:
91 Use of premises for illegal purposes
(1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted:
(a) the use of the residential premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985,
Her Honour said (at [100]):
100 The text of s 91(1)(a) supports the proposition that the “use” of the premises or property to which the provision refers must be for an unlawful purpose. This construction follows from the ordinary meaning of the provision, which requires the “use” to be one “for the purposes” of matters which fall within the Drug Misuse and Trafficking Act, suggesting those matters are the focus of the use to which the provision applies. All the verbs referred to after the phrase “for the purposes of” constitute offences under that legislation. [68] This construction is also supported by the use, in s 91(1)(b), of the phrase “for any other unlawful purpose”, indicating that the purpose referred to in s 91(1)(a) must also be an “unlawful” one.
Although Meagher and Leeming JJA agreed with McColl’s orders and reasoning with respect to the disposition of ground 2, their Honours did not express any view on the matters of construction (at [117]).
Read the decision on the NSW Caselaw website.
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| Agricultural Societies Council of NSW v Christie [2016] NSWCA 331
1 December 2016 - Meagher, Ward and Leeming JJA
The Court of Appeal considered whether a decision of the appellant, Agricultural Societies Council of NSW, to suspend a horse trainer (the respondent) from competition was amenable to a public or private law remedy. The respondent sought interlocutory injunctive relief and a final order quashing the decision but did not rely on any contractual or other private law right as the basis for the Court’s jurisdiction. The Court held (from headnote):
The basis for the exercise of the Court’s power to grant relief in the nature of certiorari arises where the decision maker is exercising a public, relevantly statutory, function. The applicant was not exercising any statutory power or function and its decision was not amenable to judicial review: [42]-[49], [87]-[94].
The Court’s power to grant a remedy such as a declaration or injunction in relation to the decision of a private tribunal is founded upon the exercise of contractual or other private law rights recognised at law or in equity. No such rights were relied on to justify the Court’s intervention: [35], [40]-[41].
Read the decision on the NSW Caselaw website.
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| Jamal v Commissioner of Police (NSW) [2016] NSWCA 345
8 December 2016 - Basten and Payne JJA
The Court of Appeal directed the applicant to provide a “medical certificate giving a full account of his condition and prognosis and indicating whether he would be able to attend [a hearing]”. The Court described the medical certificate as follows (at [5]) and considered that it provided “unsatisfactory basis for a further adjournment for a number of reasons” (at [6]):
5 The applicant provided a letter from a doctor with a practice in Concord stating that Mr Jamal has had “a flare up of his known degenerative cervical and lumbar disc disease and his long term rheumatoid arthritis.” It stated that he had had “a recent fall requiring hospital attention on 29/11/16.” He was said to be “in constant pain, poor dexterity and has poor mobility.” The doctor further opined that Mr Jamal needed “some time to get his symptoms under control and hence is not fit to attend court for the next month.”
6 This certificate provided an unsatisfactory basis for a further adjournment for a number of reasons. The term “flare up” was imprecise; there was no indication as to the normal state of health; no indication as to any results of his admission to hospital (if it occurred) on 29 November; no indication that he was on medication and no indication as to the likelihood of a change in his fitness to attend court in the future.
More generally, the Court said the following of adjournment applications on medical grounds:
10 It would not be satisfactory if an applicant who is unwilling or unable to obtain representation (in this case it may be assumed that Mr Jamal is unable to obtain representation) were able to obtain indefinite adjournments on the basis that he or she is not fit to attend court and cannot provide any firm indication as to when he or she will be fit, and does not consent to an application for leave to appeal being dealt with on the papers.
Read the decision on the NSW Caselaw website.
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| Federal Court of Australia
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| Luck v University of Southern Queensland [2016] FCFAC 167
5 December 2016 - Collier, Jessup and Katzmann JJ
The appellant, Ms Luck, sought an adjournment of the hearing of her appeal to the Full Federal Court, which was refused. She subsequently did not appear at the hearing and the Court proceeded to hear the appeal in her absence. Her “reasons for seeking an adjournment ranged from her wish to prepare for other appeals to the Full Court, to alleged settlement negotiations with the University, to her mental and physical condition” (at [25]). The Court noted five reasons for refusing the adjournment and hearing the appeal:
1. The appellant had ample time to prepare for the hearing of the appeal;
2. The reasons given for an adjournment (noted above) were unpersuasive because there was no evidence as to settlement negotiations;
3. An adjournment would not promote the overarching purpose of the civil practice and procedure provisions of the FCA Act and Rules of Court;
4. An adjournment would be prejudicial to the interests of the respondent; and
5. An adjournment would have been inconsistent with the public interest in the expeditious determination of bankruptcy proceedings.
Read the decision on the Federal Court of Australia website.
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| | Bellbird Ridge Pty Ltd as trustee for Bellbird Ridge Unit Trust v Chief Commissioner of State Revenue [2016] NSWSC 1637
23 November 2016 - White J
Bellbird Ridge sought review of decisions of the Chief Commissioner of State Revenue to issue assessments of land tax. Bellbird Ridge argued that its land was exempt from land tax because it was land used for primary production pursuant to s 10AA of the Land Tax Management Act 1956 (NSW) (the Act). At all material times, the land was used by a Mr Bailey for the grazing and breeding of cattle under an agistment agreement with Bellbird Ridge. Justice White considered both the proposed residential development of the land and Mr Bailey’s cattle operations in detail, and held that in none of the land tax years from 2012-2015 did the primary production use of the land have a substantial commercial purpose or character. His Honour’s decision provides guidance as to what is “a significant and substantial commercial purpose or character” under s 10AA(2)(a) of the Act:
71 In Maraya, Gzell J said that in the context of s 10AA(2)(a) “significant” connoted something of importance or something of consequence, a key element, or something that was vital or critical (at [83]) and that “substantial” meant an ample or considerable amount, quantity or size (at [88]). This has been accepted in subsequent cases. Thus, in Vartuli (on appeal) Gleeson JA, with whom Meagher and Ward JJA agreed, observed (at [151]) that “substantial” had to be given its ordinary meaning of considerable or large, and “significant” had to be given its ordinary meaning of something of consequence.
72 It is necessary to consider the intensity of the operation, the size and quality of the herd, the size and carrying capacity of the land and the resources, whether of time, labour or expenditure put into the development and maintenance of the operation (Maraya per Gzell J at [91]). This approach was upheld in the Court of Appeal (Maraya Holdings Pty Ltd v Chief Commissioner of State Revenue [2013] NSWCA 408; (2013) 97 ATR 818 at [55] and [60]); see Vartuli at [103].
73 In Vartuli I also concluded that it was implicit in the Court of Appeal’s reasoning in Maraya that a “commercial purpose” and a “commercial character” for the purpose of s 10AA(2)(a) means not only that the use of the land for primary production has the purpose of obtaining revenue, but the use must have at least a profit-making potential (at [105] and [109]). I said (at [129]) that for the use of the land to have a significant and substantial commercial purpose or character, the use must have a character such that it generates, or can reasonably be expected to generate, profit that contributes in a real and not trifling way to the user’s income, or purpose of generating such profit.
Read the decision on the NSW Caselaw website.
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| GLMC Properties 2 Pty Ltd v Hassarati & Co Pty Ltd [2016] NSWSC 1642
25 November 2016 - Garling J
Justice Garling surveyed the authorities on errors of law and fact (at [15]-[29]) in context of considering an appeal from the Local Court under ss 39(1) and 40(1) of the Local Court Act.
15 In order to understand and properly apply the provisions of s 39 of the Local Court Act in these proceedings, it is necessary to consider what constitutes an error of law as opposed to an error of fact.
16 This differential concept is of long-standing and the subject of binding authority. It is necessary, in light of the limited appellate jurisdiction of this Court under the Local Court Act, to identify what an error of fact is, and what an error of law is, as a matter of principle. What follows is drawn from previous decisions which I have delivered on this issue.
17 It is appropriate to commence by observing that, as a matter of statutory interpretation, the plain intention of the Local Court Act is not to permit a general review of the fact-finding process carried out in the Local Court: CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338 at [89] per Basten JA.
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21 It is now beyond argument that a wrong finding of fact does not in itself amount to an error of law: Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at [14] per Brennan J; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [88]-[89].
22 Even an erroneous finding of fact which is perverse, in the sense that it is contrary to the overwhelming weight of the evidence, is not an error of law: Azzopardi v Tasman UEB (1985) 4 NSWLR 139 at 155 per Glass JA.
23 The fact that the reasoning process by which a finding of fact is reached is demonstrably unsound or illogical does not mean that an error of law has been established. Nor does a faulty or illogical inference of fact constitute an error of law: R v District Court: Ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 654 per Menzies J.
Read the decision on the NSW Caselaw website.
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| Bernard Wilfred King v Robert Lawrence Adams and 14 Others [2016] NSWSC 1798
14 December 2016 - Sackar J
Justice Sackar’s decision provides useful statements of the legal principles on fiduciary relationships ([28]-[44]), joint ventures ([45]-[49]), the relationship between contract and fiduciary duties (at [55]-[57]), intention to contract ([58]-[64]), the existence of an oral contract ([65]-[69]), implying terms of an oral contract ([70]-[72]), and other areas.
Read the decision on the NSW Caselaw website.
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