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| | | NCAT Legal Bulletin Issue 8 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.
The latest issue featured case summaries of recent decisions from the High Court of Australia and NSW Court of Appeal, including: - Wehbe v Minister for Home Affairs [2018] HCA 50, which involved a claim for relief in respect of a decision of the Minister for Home Affairs refusing to grant a Partner visa;
- McPhillamy v The Queen [2018] HCA 52, regarding the admissibility of tendency evidence in sexual misconduct cases; and
- SAS Trustee Corporation v Miles [2018] HCA 55, which looked at the meaning of the statutory expression “incapacity for work outside the police force”.
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| Wehbe v Minister for Home Affairs [2018] HCA 50
07 November 2018 – Edelman J
In brief: The High Court refused an application for relief in respect of a decision, made by a delegate of the Minister for Home Affairs, refusing to grant the plaintiff a Partner visa.
An “insurmountable obstacle” to the application, which was brought after a series of errors made by the plaintiff’s migration agent, was that the agent’s conduct, though unfortunate, was nonetheless not “fraudulent”, and therefore not sufficient to “taint” the delegate’s decision and enliven the plaintiff’s eligibility for relief ([17] and [21]).
Applying the test of materiality, Edelman J found as follows ([24]):
“Other than in exceptional cases where a substantial miscarriage of justice arises irrespective of the materiality of the error, the question is whether the same result was "inevitable". Ultimately, I do not consider that any misstatement by the agent, even if fraudulent, deprived the plaintiff of the possibility of a successful outcome. The result would inevitably have been the same irrespective of the misstatement by the plaintiff's agent.” (footnotes omitted)
Read the decision on the High Court of Australia website.
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| McPhillamy v The Queen [2018] HCA 52
08 November 2018 – Kiefel CJ, Bell, Keane, Nettle and Edelman JJ
In brief: The High Court unanimously allowed an appeal from the NSW Court of Criminal Appeal, and ordered a new trial, holding that the evidence of “B” and “C”, regarding the appellant's acts of sexual misconduct with them, was not admissible as tendency evidence, under s 97(1)(b) of the Evidence Act 1995 (NSW), on his trial for sexual offences against “A”.
The threshold requirement in s 97(1)(b) is whether the evidence has “significant probative value”, and requires the court “to determine the extent to which the evidence is capable of proving the tendency.” ([26])
Although the evidence of “B” and “C” was capable of establishing that the appellant had a sexual interest in young teenage boys, nonetheless “it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value.” ([27])
Moreover, where the tendency evidence relates to sexual misconduct with someone other than the complainant, “it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together.” ([31])
“The suggested link in this case is the appellant's tendency to act on his sexual interest in young teenage boys who were under his supervision. … The evidence does not suggest that "A" was vulnerable in the way that "B" and "C" were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with "A"'s account that the appellant followed him into a public toilet and molested him.”
Read the decision on the High Court of Australia website.
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| Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions; Donald Galloway (a pseudonym) v Commonwealth Director of Public Prosecutions; Edmund Hodges (a pseudonym) v Commonwealth Director of Public Prosecutions; Rick Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53
08 November 2018 – Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
In brief: The High Court allowed four appeals from the Victorian Court of Appeal, with a majority holding that, in compulsorily examining the appellants prior to their being charged with money laundering offences, the Australian Crime Commission (ACC) had unlawfully violated each appellant's common law right to silence, such that the appellants’ prosecutions should be stayed.
Having each declined to be interviewed by AFP officers, unbeknownst to the appellants, several AFP officers observed their ACC examinations. The majority (Kiefel CJ, Bell and Nettle JJ) found that the purpose of the examinations was, in fact, to assist the AFP by compelling the appellants to answer questions. Accordingly, “the whole exercise was profoundly unlawful.” ([90])
Although not constitutionally entrenched, “the common law right to silence is a fundament of the criminal justice system that applies at all stages of the process to all persons suspected of an offence, whether charged or not yet charged, and also at trial.” ([101])
Even so, a permanent stay of a criminal prosecution is “an extraordinary step”, which will only be justified in “rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute.” ([106])
Accordingly, the majority concluded as follows ([107]):
“To condone such grossly negligent disregard of statutory protections and fundamental rights as occurred in these cases would be to encourage further negligent infractions of the strict statutory requirements of Div 2 of Pt II of the [Australian Crime Commission Act 2002 (Cth)] and thus of the common law right to silence. … To allow the prosecutions of the appellants to proceed in these cases would so much bring the administration of justice into disrepute that the prosecutions should be stayed.”
Whereas Keane and Edelman J agreed that the appeals should be allowed (at [169] and [292]ff, respectively), Gageler and Gordon JJ would have dismissed the appeals (at [113] and [245], respectively).
Read the decision on the High Court of Australia website.
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| Comptroller General of Customs v Zappia [2018] HCA 54
14 November 2018 – Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ
In brief: The High Court unanimously allowed an appeal from the Full Court of the Federal Court, holding that an employee of the holder of a warehouse licence can meet the description of “a person who has, or has been entrusted with, the possession, custody or control of dutiable goods which are subject to customs control” in s 35A(1) of the Customs Act 1901 (Cth).
Section 35A(1) “must be read in light of the statutory purpose of subjecting dutiable goods to customs control, namely, to ensure that customs duty is paid before delivery of those goods into home consumption.” ([28]) As to the precise wording of the provision ([31]):
“The critical reference within the description to "the possession, custody or control" must be read in that context, recognising that none of the terms … has a fixed legal meaning and that the power or authority of a person in relation to a thing connoted by any one or more of those terms in statutory collocation is a question of degree.” (footnote omitted)
As to the subject “person” in s 35A(1), this term is not exclusive: “[s]everal persons may each possess power or authority to the requisite degree within a chain of command or hierarchy of responsibility.” ([37])
Applied to the facts, the Court was satisfied of the following matters ([41]):
“…that [the respondent] was a person who had the possession, custody or control of the stolen goods and who failed to keep those goods safely. The fact that he had authority to direct what was to happen to the goods in the warehouse on a day-to-day basis was sufficient to establish that he had the requisite degree of power or authority in relation to the goods. And the fact that the goods were stolen from the warehouse during a period in which he continued to have that authority was sufficient to establish that he failed to keep the goods safely.”
Read the decision on the High Court of Australia website.
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| SAS Trustee Corporation v Miles [2018] HCA 55
14 November 2018 – Kiefel CJ, Bell, Gageler, Nettle and Edelman JJ
In brief: The High Court unanimously allowed an appeal from the NSW Court of Appeal, regarding the meaning of the expression “incapacity for work outside the police force” in s 10(1A)(b)(ii) of the Police Regulation (Superannuation) Act 1906 (NSW).
Of the two possible interpretations – that it means either (a) incapacity for work outside the police force caused by being hurt on duty, or (b) incapacity for work outside the police force howsoever caused – the Court held that “context and purpose favour the former and it appears consistent with relevant extrinsic materials.” ([1])
In particular, the Court pointed to the “textual and contextual indications in [the surrounding provisions] that the operation of s 10(1A)(b)(ii) is so limited.” ([20])
Most compellingly, the term “incapacity” in s 10(1A)(b)(ii) “appears to have the same meaning as "incapacitated" in the expression "totally incapacitated for work outside the police force" in s 10(1A)(c)”. This provided “strong support” for the conclusion that ([26]):
“…"incapacity" in s 10(1A)(b)(ii) means, as it does in the cognate term in s 10(1A)(c), incapacitated for work outside the police force from the specified infirmity of body or mind which rendered the member incapable of exercising the functions of a police officer and which was caused by being hurt on duty.”
Read the decision on the High Court of Australia website.
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| Alford v Parliamentary Joint Committee on Corporations and Financial Services [2018] HCA 57
22 November 2018 – Gordon J
In brief: The High Court dismissed an application by the plaintiffs, employees of a retail food franchisor, who sought a stay of orders obliging them to appear before a parliamentary inquiry into the operation and effectiveness of the Franchising Code of Conduct.
In order to succeed, the plaintiffs were required to establish that there was a serious question to be tried and that the balance of convenience favoured the grant of the relief sought. Justice Gordon determined that they were unable to meet this threshold ([5]-[7]):
“Given the lack of merit in the plaintiffs' substantive application for certiorari and declaratory relief and, further, given that the issues raised by the plaintiffs should generally be resolved by the Parliament, not the courts, the plaintiffs have failed to establish a prima facie case for relief. … Moreover, even if the plaintiffs had established that there was a serious question to be tried (and they have not), the balance of convenience would not favour granting the interlocutory relief that they seek.”
In concluding, Gordon J noted that the plaintiffs’ claim was feebly premised ([57]):
“Put in different terms, even if the issues raised were justiciable, the plaintiffs' concerns about their attendance before the Committee… were not only ill-defined but hypothetical.”
Read the decision on the High Court of Australia website.
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| | The NSW Court of Appeal publishes a regular bulletin containing summaries of its latest decisions of interest. Find below links to several such decisions from recent bulletins.
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| Scenic Tours Pty Ltd v Moore [2018] NSWCA 238
REPRESENTATIVE PROCEEDINGS – representative proceedings brought by Plaintiff on behalf of passengers (Group Members) who paid for and travelled on European river cruises supplied by the defendant – a number of the cruises were seriously disrupted by high water levels on the rivers – Plaintiff seeks compensation for loss of value and damages for disappointment and distress for himself and Group Members – whether proceedings satisfactorily identified common questions of law or fact CONSUMER PROTECTION – Plaintiff relies on the Defendant’s failure to comply with the Consumer Guarantees in ss 60 and 61 of the Australian Consumer Law (ACL) – whether the “services” to be provided by the Defendant for the purposes of the Consumer Guarantees were co-extensive with the defendant’s contractual obligations – whether services included provision of pre-embarkation information to passengers as to river conditions – whether the services provided by the defendant on the cruises were fit for the particular purpose for which Plaintiff and Group Members acquired them (ACL s 61(1)) – whether the services were not of a nature and quality as could reasonably be expected to achieve the result Plaintiff and Group Members wished the services to achieve (ACL s 61(2)) – whether primary Judge correctly applied the test for assessing compensation for lost value (ACL s 267(3)(b)) DAMAGES – whether Plaintiff and Group Members precluded from claiming damages for disappointment and distress by s 16 of the Civil Liability Act 2002 (NSW) (Civil Liability Act) – effect of s 275 of the ACL in picking up and applying the Civil Liability Act as a surrogate federal law – whether s 16 of the Civil Liability Act capable of applying to claims for non-economic loss where the claims arise from conduct outside Australia
Read the decision on the NSW Caselaw website.
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| Council of the Law Society of New South Wales v Levitt [2018] NSWCA 247
ADMINISTRATIVE LAW – judicial review – application for judicial review of decisions of Council of Law Society of New South Wales determining complaints against a solicitor pursuant to s 537(2) of the Legal Profession Act 2004 (NSW) – where Council resolved it was satisfied there was a reasonable likelihood of Civil and Administrative Tribunal concluding solicitor guilty of professional misconduct – whether requirement to consider s 540 as condition precedent to operation of s 537(2) of the Legal Profession Act 2004 (NSW) ADMINISTRATIVE LAW – judicial review – application for judicial review of decisions of Council of Law Society of New South Wales determining complaints against a solicitor – construction of ss 537(2) and 540 of the Legal Profession Act 2004 (NSW) – whether conclusion by Council it was satisfied there was a reasonable likelihood of Civil and Administrative Tribunal concluding solicitor was guilty of professional misconduct precluded it also being satisfied of finding of reasonable likelihood of Tribunal concluding solicitor was guilty of unsatisfactory professional conduct STATUTORY INTERPRETATION – where Council resolved it was satisfied there was a reasonable likelihood of Tribunal concluding solicitor was guilty of professional misconduct – whether s 537(2) of the Legal Profession Act (NSW) requires Council also to consider whether there is a reasonable likelihood of a finding of unsatisfactory professional conduct WORDS AND PHRASES – “unless” – “reasonable likelihood” – Legal Profession Act 2004 (NSW), s 537, s 540
Read the decision on the NSW Caselaw website.
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