| | | | | | | NCAT Legal Bulletin Issue 9 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 September 2017.
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| Wilkie v The Commonwealth; Australian Marriage Equality Ltd v Cormann [2017] HCA 40
22 September 2017 — Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
In brief: The High Court, acting in its original jurisdiction, unanimously upheld the validity of s 10 of the Appropriation Act (no 1) 2017-2018 (Cth) (at [95]), the Advance to the Finance Minister Determination (No 1 of 2017-2018) (at [138]), and the Census and Statistics (Statistical Information) Direction 2017 (at [146]-[148]), dismissing both plaintiffs’ proceedings against the defendants.
Relevantly, ss 10 and 12 of the Appropriation Act provided that:
“10 Advances to the Finance Minister
(1) This section applies if the Finance Minister is satisfied that there is an urgent need for expenditure, in the current year, that is not provided for, or is insufficiently provided for, in Schedule 1:
(a) because of an erroneous omission or understatement; or
(b) because the expenditure was unforeseen until after the last day on which it was practicable to provide for it in the Bill for this Act before that Bill was introduced into the House of Representatives.
(2) This Act has effect as if Schedule 1 were amended, in accordance with a determination of the Finance Minister, to make provision for so much (if any) of the expenditure as the Finance Minister determines.
(3) The total of the amounts determined under subsection (2) of this section and subsection 10(2) of the Supply Act (No. 1) 2016‑2017 cannot be more than $295 million.
(4) Subsection (3) of this section prevails over subsection 10(3) of the Supply Act (No. 1) 2016‑2017.
(5) A determination made under subsection (2) is a legislative instrument, but neither section 42 (disallowance) nor Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 applies to the determination.
…
12 Appropriation of the Consolidated Revenue Fund
The Consolidated Revenue Fund is appropriated as necessary for the purposes of this Act, including the operation of this Act as affected by the Public Governance Performance and Accountability Act 2013.”
In substance, the plaintiffs made the following challenges to the Appropriation Act and the determinations made in accordance with that legislation. The plaintiffs argued that:
- Section 10 of the Appropriation Act was invalid, insofar that it transgressed the constitutional limitation set out in ss 81 and 83 of the Australian Constitution (at [72]);
- The Finance Determination was invalid, insofar as it did not meet the preconditions of s 10 of the Appropriation Act (at [96]);
- The Statistics Determination was invalid, insofar as it exceeded the power set out in s 9(1)(b) of the Census and Statistics Act 1905 (Cth).
In relation to the constitutional challenge, the Court considered the relevant constitutional provisions governing appropriations and the enactment of laws for the appropriation of revenue or moneys (at [60]-[65]), holding (at [61]) that (footnotes omitted):
“Sections 81 and 83 together give expression to the foundational principle of representative and responsible government "that no money can be taken out of the consolidated Fund into which the revenues of the State have been paid, excepting under a distinct authorization from Parliament itself".”
The Court rejected the argument that s 10 purported to invalidly confer power on the Finance Minister and supplement the amount appropriated by Parliament, holding that such a construction “was based on a fundamental misconstruction” of the Appropriations Act (at [87]). The Court held (at [88]-[89]) that s 12 of the Appropriations Act appropriated the Consolidated Revenue Fund, not s 10, and that the power of the Finance Minister to make a determination under s 10(2) was a power to allocate the whole or part of the $295 million specified in s 10(3), which had already been appropriated.
In relation to the challenge to the Finance Direction, the Court considered whether the precondition set out in s 10(1) of the Appropriation Act had not been met, namely that the Finance Minister be satisfied there is an “urgent… and unforeseen” need for the expenditure (at [96]). The Court observed (at [98]) that the wording of s 10(1) (footnotes omitted):
“invoke[d] an "established drafting technique" which has for more than a century been "used to make the holding of a particular state of mind by the repository a precondition to the performance of a duty or to the exercise of a power". The particular use of that drafting technique to express the precondition to the application of the Advance to the Finance Minister is of long standing and has been the subject of careful deliberation.”
Following a consideration of the extrinsic materials that informed the drafting of the s 10 of the Appropriation Act, including parliamentary papers, parliamentary debates and parliamentary committee reports (at [98]-[104]), the Court set out, in detail, the satisfaction that the Finance Minister is required to form in order to exercise the power in s 10(1) of that Act (at [109], [110], [111] and [119]). Ultimately, in the present case, the Court held (at [138]) that:
“The process of reasoning disclosed by the Finance Minister involved no error of law. The conclusion he reached through that process of reasoning has not been demonstrated to have been beyond the bounds of legal reasonableness.”
In relation to the challenge to the Statistical Direction, the Court considered whether that direction exceeded the power set out in s 9(1)(b) of the Census and Statistics Act, which relevantly provides that:
“9 Statistical information to be collected
(1) The Statistician:
…
(b) shall, if the Minister so directs by notice in writing, collect such statistical information in relation to the matters so prescribed as is specified in the notice.”
Relevantly, the information to be collected concerned:
“[139] … the proportion of electors who wish to express a view about whether the law should be changed to allow same-sex couples to marry and about the proportion of those electors who are respectively in favour of and against the law being changed to allow same sex couples to marry.”
The Court rejected the argument that the information to be collected was not “statistical information”, holding (at [145]) that the Australian Bureau of Statistics had “collected a wide range of data concerning opinions and beliefs in the administration of the Statistics Act since at least the 1960s”. Accordingly, the Court held (at [146]) that “information about personal opinion or belief, including information as to the proportion of persons holding a particular opinion or belief, is and always has been "statistical information".”
The Court also rejected the remaining arguments that the information to be collected was not “in relation to” the prescribed matters (at [144], [147]), and that there was nothing in the “subject-matter, scope or purpose” of s 9(1)(b) to exclude the collection of information about a target population (at [144]-[148]).
Finally, it is worth noting that the Court held (at [58]) that it would be “inappropriate” to address the defendants’ arguments on whether the plaintiffs had standing, as the plaintiffs’ proceedings had been fully argued and unanimously dismissed.
Read the decision on the High Court of Australia website.
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| Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41
22 September 2017 — Kiefel CJ, Bell, Keane and Gordon JJ
In brief: The High Court unanimously allowed an appeal from the Victorian Court of Appeal, holding that the Court of Appeal had erred in treating the range established by current sentencing practices as decisive of the appeal before it (at [2]). Relevantly, s 5(2) of the Sentencing Act 1991 (Vic) provides that (emphasis added):
“(2) In sentencing an offender a court must have regard to—
(a) the maximum penalty prescribed for the offence; and
(ab) the baseline sentence for the offence; and
(b) current sentencing practices; and
(c) the nature and gravity of the offence; and
(d) the offender's culpability and degree of responsibility for the offence; and
(daaa) whether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated; and
(daa) the impact of the offence on any victim of the offence; and
(da) the personal circumstances of any victim of the offence; and
(db) any injury, loss or damage resulting directly from the offence; and
(e) whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and
(f) the offender's previous character; and
(g) the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.
In the proceedings before the Court of Appeal, the Court held that, but for the constraints of s 5(2)(b), it would have had “no hesitation” to conclude that the sentence imposed on the respondent was manifestly inadequate (at [36]). Gageler and Gordon JJ, in separate reasons, but agreeing with the majority judgment of Kiefel CJ, Bell and Keane JJ, held (at [82]) that:
“Section 5(2)(b) does not in terms provide that current sentencing practices set boundaries on what a court may reasonably impose as a sentence. The court must have regard to current sentencing practices, as well as every other matter listed in s 5(2). Current sentencing practices stand in the same position as every other matter listed in s 5(2). There is nothing to suggest that current sentencing practices should be treated in a conceptually different manner from any of the other listed matters. Of course, an express purpose of the Sentencing Act is to promote consistency of approach in the sentencing of offenders84, to which the requirement in s 5(2)(b) may contribute. But that purpose, which reflects the well-recognised importance of consistency in the application of sentencing principles85, provides no basis for treating s 5(2)(b) as though it were a statutory command to sentence within a "band" derived from current sentencing practices.”
Read the decision on the High Court of Australia website.
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| | McElwaine v The Owners - Strata Plan 75975 [2017] NSWCA 239
20 September 2017 — Basten JA, White JA, Sackville AJA
In brief: The NSW Court of Appeal (White JA, Simpson JA and Sackville AJA agreeing) held that the Strata Schemes Management Act 1996 (NSW) does not exclude a plaintiff from seeking a general law remedy in respect of a defendant breaching a general law duty, due to the effect of s 226 of that Act (at [26]).
In the present case, the appellant was the registered owner of a lot in a strata plan owned by the respondent Owners Corporation (at [5]). The appellant sought damages, in respect of the respondent’s breach of its common law duty of care or common law duty not to create or to abate a nuisance (at [5], [26]).
The provisions of the Strata Schemes Management Act relevant to the Court’s decision were s 62, which set out the duties of an owners corporation to maintain and repair property; s 138, which provided Adjudicators with the power to make orders to settle disputes or rectify complaints; and s 226, which stated that any other rights or remedies of, inter alia, a lot owner or an Owners Corporation are not affected by the Act.
The Court held (at [44]) that an Owners Corporation owed concurrent duties to a lot owner under s 62 of the Strata Schemes Management Act and at common law, stating:
“[An] ordinary incident of legal ownership of real property is the liability that a legal owner may have in negligence if a person is injured as a result of the owner’s failure to take reasonable care in the management of the real property to protect a person against foreseeable and avoidable risk of harm and the legal owner’s duty not to create or continue a nuisance.”
Furthermore, the Court held (at [67]) that there was nothing in the Strata Schemes Management Act that indicated a legislative intention to affect a lot owner’s common law right to sue an Owners Corporation for negligence or nuisance in relation to the latter’s control and management of common property. It observed that:
“[70] Had Parliament intended to abolish common law rights and remedies and to replace them with the statutory remedies available from an adjudicator and the Tribunal, it could be expected to have given an adjudicator and the Tribunal the power to order the payment of damages. The fact that an adjudicator and the Tribunal cannot make an order for the payment of damages indicates that Parliament did not intend the scheme under the SSM Act to exclude a lot owner’s common law right to sue the owner’s corporation for negligence or nuisance in respect of its management or control of the common property. The respondent’s contention to the contrary depends upon the correctness of its contention that the only positive duty of the owners corporation to a lot owner was a statutory duty for which the remedies in Ch 5 of the SSM Act were the exclusive remedies. For the reasons I have given I do not accept that submission.
[71] Section 226 makes the position clear….”
It is worth noting that the Court’s decision in the present case did not disturb its earlier holding in The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270, with the Court stating that:
“[44] Thoo holds that the owners corporation as trustee of the common property does not owe any positive duty, other than a duty imposed by statute, to lot owners as beneficial owners of the common property. It says nothing as to whether the owners corporation as legal owner of the common property owes duties independently of statutory duties to lot owners in their capacity not as beneficial owners of common property, but as legal owners of their lots, in the same way as an owners corporation as legal owner of the common property will owe duties to third parties.”
Read the decision on the NSW Caselaw website.
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| | Victorian Court of Appeal |
| Food and Beverage Australia Ltd v Andrews [2017] VSCA 258
21 September 2017 — Redlich, Santamaria and McLeish JJA
In brief: The Victorian Court of Appeal considered the principles relevant to the appellate review of findings of fact (at [92]-[94]) and the obligation to give adequate reasons for decision (at [204]-[210]).
In relation to the role of an appellate court in reviewing findings of fact, the Court held that:
“[92] The law governing the appellate review of findings of fact made at trial was recently set out by the High Court in Robinson Helicopter Co Inc v McDermott:
A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.
The Court also held that an appellate body must take into account the advantages possessed by a trial judge who has seen or heard witnesses, stating:
[93] In conducting the ‘real review’ required of it, this Court must bear in mind that it has not seen or heard the witnesses and must respect the advantages that this gave the trial judge. However, the Court cannot rely on this consideration as a basis for avoiding conducting the necessary review….
In relation to the obligation of a court to give adequate reasons for its decisions, the Court held that (footnotes omitted):
“[204] This Court recently observed that the provision of a court’s reasons for judgment serves at least four purposes:
(a) the reasons enable the parties to see the extent to which their respective arguments have been understood and addressed, and to perceive the basis for the court’s decision;
(b) the giving of reasons enhances judicial accountability, both in the case itself and more widely;
(c) the publication of reasons enables practitioners, legislators and members of the public to ascertain the state of the law and the basis upon which like cases will probably be decided in the future; and
(d) reasons enable an appellate court to determine whether the decision was affected by appealable error.
…
[207] If the reasons are deficient, such that steps in the reasoning process are not revealed, an appellate court will ordinarily be driven to conclude that there is a substantial risk that the fact-finding task miscarried.”
The Court also observed that a delay in giving judgment can diminish the advantage that a trial judge has over an appellate court, in relation to the evaluation of witnesses’ credibility and, furthermore, may contribute to the infirmity of a decision, holding that (footnotes omitted):
“[208] … Delay in giving judgment can weaken the usual advantage which a trial judge has over an appellate court in evaluating the credit of witnesses, and this must be taken into account on appeal. That problem may be alleviated where the judge has demonstrated in the reasons that the delay did not weaken the trial judge’s advantage (for example, by explaining that contemporaneous notes were relied upon). This may well require the trial judge to deal with the evidence, and especially matters of credit, more extensively than would otherwise be the case.
[209] The problems associated with delay go further. The Full Court of the Federal Court explained in Expectation:
The problem is not restricted to fading memory. A judge who comes to make an inordinately delayed decision will inevitably be subjected to great pressure to complete and publish the judgment. A conscientious judge could not but feel that pressure. It is almost inevitable that there will also be some form of external pressure — whether from the parties, the management of the Court, the press or parliamentarians. That pressure could well unconsciously affect the process of decision-making and the process of giving reasons for decision. The decision that is easiest to make and express will have great psychological attraction. As was recently said by the Western Australian Court of Appeal in Mount Lawley Pty Ltd v Western Australian Planning Commission [(2004) 29 WAR 273], in the course of a valuable review of the significance of delay in the delivery of judgments (at [31]):
… a long delay can give rise to disquiet … because of the suspicion, on the part of the losing party, that the task may have become too much for the trial Judge and that he or she had been unable, in the end, to grapple adequately with the issues.
[210] Notwithstanding these dangers, delay itself is not a ground of appeal. The ground of appeal is the error, or the infirmity of the decision, to which the delay may have contributed.”
Read the decision on the BarNet Jade website.
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| | Valenzuela v Commonwealth Bank of Australia [2017] NSWSC 1243
20 September 2017 - Robb J
In brief: The Supreme Court of New South Wales considered the principles governing unconscionable conduct, in equity, and the requirement to demonstrate the presence of a “special disability” or “special disadvantage” (at [68]-[72]).
In doing so, the Court quoted extensively from the NSW Court of Appeal’s decision in Australia & New Zealand Banking Group v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344 and the High Court’s decision in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14.
In the present case, the plaintiff entered into a deed with the defendant during mediation (at [22]). The plaintiff claimed that the deed was unenforceable, because she had been induced to execute the deed under duress or due to some other unconscionable conduct of the defendant (at [58]-[59]).
As a starting point, the Court considered (at [68]-[69]) the distinction between “unconscionable conduct” and “undue influence”. Following the statement of Mason J in Amadio, which had been applied in Karam, the Court observed (at [68]) that relief on the ground on unconscionable conduct usually refers to:
“… the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage … Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.”
The Court then considered (at [70]-[72]) the requirement that a plaintiff demonstrate the presence of a “special disability” or “special disadvantage” to establish a finding of unconscionable conduct, holding that:
“[70] The Court of Appeal also said at [100], referring to the joint judgment in Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66, that “there is nothing in the joint judgment which suggests that a transaction may be set aside on the basis of unconscionable conduct, absent any special disability, in circumstances where all that can be said is that the victim ‘is by pressure impeded’ from following his or her best interests”.
[71] Deane J gave the following explanation in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 at 474-475 of the nature of special disadvantage and its significance to a finding of unconscionable conduct:
…
The equitable principles relating to relief against unconscionable dealing and the principles relating to undue influence are closely related. The two doctrines are, however, distinct. Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party (see Union Bank of Australia Ltd v Whitelaw [1906] VLR 711 at 720 ; Watkins v Combes (1922) 30 CLR 180 at 193–4 ; Morrison v Coast Finance Ltd (1965) 55 DLR (2d) 710 at 713 ). Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so. The adverse circumstances which may constitute a special disability for the purposes of the principles relating to relief against unconscionable dealing may take a wide variety of forms and are not susceptible to being comprehensively catalogued. In Blomley v Ryan (supra, at 405). Fullagar J listed some examples of such disability: “poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary”. As Fullagar J remarked, the common characteristic of such adverse circumstances “seems to be that they have the effect of placing one party at a serious disadvantage vis-à-vis the other”.
[72] For the purposes of this case, it must be noted that the court will not set aside the Deed of Release on the basis that there was some inequality of bargaining power between the defendants and Ms Valenzuela. It is necessary for Ms Valenzuela to establish that the Deed of Release was a product of unconscionable conduct based on an unconscientious taking advantage of a special disability or special disadvantage from which Ms Valenzuela suffered.”
It is worth noting that the present discussion applies directly to the kind of unconscionable conduct referred to in s 20 of the Australian Consumer Law, being unconscionable conduct “within the meaning of the unwritten law”, but not s 21 of the ACL.
Read the decision on the NSW Caselaw website.
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