| |
|
| | NCAT Legal Bulletin Issue 9 of 2021
|
| 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 features case summaries of recent decisions from the New South Wales Court of Appeal and the Federal Court of Australia, including: - Chief Commissioner of State Revenue v McIntosh Bros Pty Ltd (in liq) [2021] NSWCA 221 - In which the Court of Appeal dismissed the appeal of the Chief Commissioner of State Revenue against a decision of the Tribunal, which had set aside land tax assessments completed by the Commissioner because the land was exempt from land tax pursuant to s 10AA of the Land Tax Management Act 1956 (NSW).
- Nadilo v Eagleton [2021] NSWCA 232 - In which the Court of Appeal allowed an appeal from a decision of the Land and Environment Court. The parties had agreed to consent orders in which the applicant achieved the outcomes that she sought in bringing the proceedings, and so the Court found that it was plainly unjust for the primary judge not to have awarded the applicant her costs.
- Gibson v Director of Public Prosecutions (NSW) (No 2) [2021] NSWCA 218 - In which the Court of Appeal dismissed an application for judicial review by the applicant. The applicant sought review of a decision of the District Court not to refer questions of law to the Court of Criminal Appeal. The Court of Appeal found that there was no jurisdictional error in the judge communicating with the appellant via email from the Local Court Registrar, and if there had been jurisdictional error, relief should be withheld because the questions sought to be referred were not questions of law.
- Athavle v State of New South Wales [2021] FCA 1075 - In which the Federal Court refused an interlocutory application from the appellants, who sought interim injunctive relief from various public health orders and declarations made by the respondents, the State of NSW, the State of Victoria and the Commonwealth. The Court found that the applicants were not entitled to relief from the orders, which had been made by the respondents in response to the COVID-19 pandemic, on the basis of an implied Constitutional freedom of religion.
This issue also provides links to a number of summaries published separately by the NSW Court of Appeal Decisions of Interest Bulletin.
|
| |
New South Wales Court of Appeal
|
| Chief Commissioner of State Revenue v McIntosh Bros Pty Ltd (in liq) [2021] NSWCA 221
16 September 2021 - Meagher, Payne and White JJA
In sum: The Court of Appeal dismissed the appeal of the Chief Commissioner of State Revenue against a decision of the Tribunal, which had set aside land tax assessments completed by the Commissioner because the land was exempt from land tax pursuant to s 10AA of the Land Tax Management Act 1956 (NSW).
Facts: The respondent owned land which was assessed for land tax by the appellant for the calendar years 2014-16. During those years the land was informally divided into two parts: on one side Ron McIntosh and his son Richard conducted a beef cattle operation and Jim Head ran a cattle grazing business; on the other side Ian McIntosh grazed his own cattle and agisted the cattle of third parties (that is, permitting grazing of other cattle in exchange for payment). The respondent claimed the land was exempt from land tax as land used for primary production ([1], [5]-[6]).
The Tribunal set aside the land tax assessments on the basis the land was exempt from land tax under s 10AA of the Land Tax Management Act 1956 (NSW). That exemption applied if the dominant use of the land was for primary production within the meaning of s 10AA(3), and that use had a significant and substantial commercial purpose or character per s 10AA(2)(a), and was engaged in for the purpose of profit per s 10AA(2)(b) ([1], [7]).
Held (granting leave to appeal and dismissing the appeal):
Whether, where land is used for primary production activities by independent users, it is permissible to aggregate those uses for the purposes of determining whether the “dominant use” of the land is for primary production (s 10AA(3)), and that the use of the land satisfies the commerciality and purpose of profit tests (s 10AA(2)).
(i) Section 10AA(3) lists a number of activities in pars (a) to (f) that constitute primary production activities. Where a number of items in a statutory provision are connected by “or”, that word can properly admit of different meanings. One meaning is strictly disjunctive, where each provision is mutually exclusive, but it may have a conjunctive meaning, where “or” is effectively read as “and”. A third approach involves a hybrid of these two meanings, where the meaning is equivalent to the phrase “or, or as well” ([12]-[13]).
(ii) On its proper construction, s 10AA(3) requires all activities that fall within one or more of the sub-paragraphs to be considered in determining whether the dominant use of the land is for primary production. Where the dominant use of the land consists of primary production activities conducted independently by a number of users, in determining whether the commerciality and purpose of profit tests are satisfied that use is to be assessed as a whole and taking into account those independent uses. Neither of those tests requires a single subjective purpose be identified ([14]-[22]).
Whether the Tribunal erred in finding that Richard McIntosh’s cattle operation on the land had a significant commercial purpose by considering its role as part of his broader farming business conducted on other parcels of land.
(iii) In determining whether a primary production use of land satisfies the commerciality test, it is permissible to consider that use within the context of any wider business activity of which it forms part. The Tribunal’s conclusion that Mr Richard McIntosh’s cattle grazing operation on the land had a substantial commercial character did not raise any question of law ([27]-[32]).
Whether the Tribunal erred in finding that the agistment of cattle on Ian McIntosh’s land was a primary production activity as defined in s 10AA(3)(b) of the Act, namely as a use of the land for the maintenance of animals for the purpose of selling them or their produce.
(iv) There was no error of law in the Tribunal’s finding that the dairy farmer who agisted his cattle on the land continued to maintain them, as this finding was supported by evidence. Furthermore, s 10AA(3)(b) is satisfied if the land is being used to maintain livestock. The identity of the person or persons doing that “maintenance” is not relevant ([35]-[40]).
Whether, in determining whether the commerciality and purpose of profit tests were satisfied, the Tribunal took into account that the farming operations generated little profit, did not bear the costs of holding the land, and provided meagre remuneration for the labour involved.
(v) The Tribunal considered each of the relevant matters referred to in relation to this ground, and the Appeal Panel correctly dealt with an argument to the contrary. This ground accordingly raises no question of law ([43]-[48]).
Read the decision on the NSW Caselaw website.
|
| Nadilo v Eagleton [2021] NSWCA 232
23 September 2021 - Meagher and Brereton JJA and Preston CJ of LEC
In sum: The Court of Appeal allowed an appeal from a decision of the Land and Environment Court. The parties had agreed to consent orders in which the applicant achieved the outcomes that she sought in bringing the proceedings, and so the Court found that it was plainly unjust for the primary judge not to have awarded the applicant her costs.
Facts: The applicant complained that air conditioning units and a heat pump installed by the respondent’s on the exterior side wall of their house facing the applicant’s house emitted excessive noise, and brought proceedings in the Land and Environment Court. The applicant alleged breaches of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (Exempt Development SEPP) and of provisions of the Protection of the Environment Operations (Noise Control) Regulation 2017 (Noise Control Regulation). The substantive dispute between the parties was resolved before a final hearing by the respondents enclosing the air conditioning units and replacing the heat pump with a silent hot water heater. Consent orders were therefore made, including that the proceedings be dismissed. The applicant sought an order that the respondents pay her costs. The primary judge rejected the application, made no order as to the costs of the proceedings and ordered the applicant to pay the costs of the motion. The Applicant sought leave to appeal ([2]-[5]).
Held (allowing the appeal):
(i) The guiding principle underlying the exercise of the costs discretion is that costs should be borne in a way that is fair having regard to the responsibility of each party for the incurring of costs by the other ([6]).
(ii) UCPR 42.20 does not establish a presumption but reflects the default position, where proceedings are dismissed, that costs will follow the event. A different order would be justified where, for example, proceedings are dismissed due to a plaintiff having obtained practical extra-curial success ([7]).
(iii) Where one party effectively surrenders to another, as distinct from a compromise, it need not be shown, in order to justify a costs order in favour of the other party, that the surrendering party acted unreasonably before the surrender (per Meagher and Brereton JJA [9], [12]).
(iv) In this case there was no question of compromise; the applicant obtained the substance of the relief sought, namely that the machinery in question be made compliant with the relevant legislation. As the applicant would inevitably have succeeded in relation to the Exempt Development SEPP breach, entitling her to the relief sought, it was irrelevant that she might not have succeeded in relation to the Noise Control Regulation breach. The primary judge erred in declining to make a costs order on the basis that success on the latter point was not guaranteed ([10]-[11], [68]-[70], [91]).
(v) It is an error to undertake a close comparison of outcomes achieved with the terms of the prayer seeking relief. The relevant inquiry must look to the substance, not the form, of the outcomes achieved. The injustice justifying interference with the primary judge’s exercise of the costs discretion is that the applicant was forced to go to court to obtain the relief to which she was entitled and to bear her own costs of doing so ([13], [84], [92]-[93]).
(vi) Establishing that the applicant would inevitably have succeeded is necessary, but insufficient; there needs also to be the extra circumstance that the respondents’ conduct in defending the proceedings up to the time they agreed to the primary judge making consent orders was unreasonable. The primary judge erred in failing to identify and give weight to the respondents’ unreasonable conduct in delaying taking the actions and consenting to the orders that were ultimately taken and made (per Preston CJ of LEC [94], [99]).
Read the decision on the NSW Caselaw website.
|
| Gibson v Director of Public Prosecutions (NSW) (No 2) [2021] NSWCA 218
14 September 2021 - Bell P, Basten and Meagher JJA
In sum: The Court of Appeal dismissed an application for judicial review by the applicant. The applicant sought review of a decision of the District Court not to refer questions of law to the Court of Criminal Appeal. The Court of Appeal found that there was no jurisdictional error in the judge communicating with the appellant via email from the Local Court Registrar, and if there had been jurisdictional error, relief should be withheld because the questions sought to be referred were not questions of law.
Facts: The applicant was convicted in the Local Court of NSW and was resentenced for some of those convictions on appeal at the District Court. The applicant sought to have twelve questions of law referred to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). The District Court judge, via email from the Local Court Registrar, advised that she was functus officio (that is, a valid result had been imposed after a lawful hearing) and she could not reopen the case, and had accordingly declined to state a case in this matter. The applicant sought judicial review of the decision not to refer the purported questions of law ([1]-[13]).
Held (dismissing the summons):
(i) The indirect and informal communication of the “reasons” was not entirely satisfactory. Decisions of judges should generally be formally delivered and recorded so as to avoid potential uncertainty as to the timing of a decision, the reasons for it, and whether those reasons are in fact those of the judge, as opposed to, for example, the Registrar ([18]-[22]).
(ii) In this case, the basis for the judge’s decision is uncertain. Elements of the email suggest that the judge did not misconceive her function in relation to the s 5B referral, and that she in fact exercised her discretion not to refer discursive and argumentative “questions” that may have been interpreted as amounting to a request to reopen the hearing ([22], [25]-[26], [54], [57]-[59]
(iii) If jurisdictional error were established, relief should nevertheless be withheld because the questions sought to be referred were plainly not “questions of law”. Any jurisdictional error may thus be regarded as “immaterial”: see MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 ([27], [29]).
(iv) Alternatively, relief should be withheld in the exercise of the Court’s discretion because of its lack of demonstrated utility ([30]).
(v) A judge to whom a s 5B request is made must consider whether the questions are in fact questions of law, whether they arise in relation to the trial, and whether there is a real question as to the correct answer. Notably, s 5B does not create a right of appeal. In this case the proposed questions were clearly not questions of law and thus relief could be refused in the exercise of the Court’s discretion. The email would not be invalidated by any failure to give reasons as reasons are not required for every decision, though a party would be able to request reasons for such a decision if not given ([27]-[30], [33], [40]-[41], [61]-[62]).
(vi) Any error of law in characterising proposed questions otherwise than as questions of law would be an error within jurisdiction. A decision under s 5B constitutes an adjudication on an appeal for the purposes of s 176 of the District Court Act 1973 (NSW), so that judicial review is limited to jurisdictional error and not available for mere error of law on the face of the record ([44]-[46]).
Read the decision on the NSW Caselaw website.
|
| Federal Court of Australia
|
| Athavle v State of New South Wales [2021] FCA 1075
6 September 2021 - Griffiths J
In sum: The Federal Court refused an interlocutory application from the appellants, who sought interim injunctive relief from various public health orders and declarations made by the respondents, the State of NSW, the State of Victoria and the Commonwealth. The Court found that the applicants were not entitled to relief from the orders, which had been made by the respondents in response to the COVID-19 pandemic, on the basis of an implied Constitutional freedom of religion.
Facts: The applicants sought to celebrate various Jewish religious holidays, and sought declaratory relief that public health orders by NSW and Victoria did not, on their proper construction, interfere with religious observances, relying on the principle of legality and international treaties signed by Australia. They also sought declaratory relief that Commonwealth public health declarations were invalid because the instruments are legally unreasonable to the extent they have interfered with freedom of religion and association and it was claimed that those instruments encroach upon a freedom of religion which is expressed in s 116 of the Constitution or is otherwise implied ([6]).
Held (dismissing the application):
(i) The second and third respondents, Victoria and the Commonwealth, respectively, contended that the submissions relating to an implied Constitutional right of religious freedom were merely colourable and used to fabricate Federal jurisdiction. On the question whether the strength of a claim is a relevant consideration in determining colourability, the fact that a claim is hopeless may be a relevant factor even if it is insufficient by itself to show that the claim is not genuine. Though the case is borderline, it is not colourable ([8]-[9], [11]-[13]).
(ii) Where interlocutory relief is sought in proceedings other than those involving competing private interests, public interest considerations may arise. A relevant consideration in this proceeding is the fact that third party interests, namely those of the public who might be affected by the grant of an interlocutory injunction, are relevant ([76]-[77]).
(iii) The applicants failed to demonstrate that there is a serious question to be tried; if there is, it is very weak. Their reliance on the “principle of legality” in challenging the NSW orders and Victorian directions is misconceived because both those instruments make it abundantly clear that they are intended to encroach upon and restrict what the applicants say is their fundamental right or freedom at common law to practice their religious faiths. The weighing and balancing of competing interests in acting to protect the public from COVID-19, while recognising some limited exceptions from that protection, involves an evaluative judgment with heavy political and policy content. It has been established by the High Court that the principle of legality “can at most have limited application in the construction of legislation which has amongst its objects or purpose the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked” ([78]-[79], [81]).
(iv) Section 116 of the Constitution only binds the Commonwealth, not the States, and so the applicants may only rely on it in relation to the Commonwealth declaration. The provision prohibits the Commonwealth from making any law “for prohibiting the free exercise of any religion”, but the Commonwealth declaration does not do so; in fact, it has no substantive content in its own right nor does it contain any provision which is directed to the free exercise of any religion ([84]-[86]).
(v) The applicants’ reliance on s 116 is inconsistent with the caselaw, which establishes that, in determining whether a law is invalid by reference to s 116, the focus is on the purpose, not the effect, of the law ([87]).
(vi) No authority was cited in support of an implied right of religious freedom either related to, or independent of, s 116. The reference in the Constitution’s Preamble to “Almighty God” has been said to in no way enlarge the meaning and operation of s 116. The asserted implied right would go beyond, and be inconsistent with, the express terms of s 116. Inconsistency would also arise if s 116, which is expressly confined to the Commonwealth, was extended to the States ([88]).
(vii) There is a high threshold to judicial review of subordinate legislation for unreasonableness, which must be “so oppressive or capricious that no reasonable mind can justify it”; the Court should avoid engaging in a merits review of such legislation. The proper test is not one of expediency, but whether there is a power to make the subordinate instrument. The applicants’ case has fallen far short of this high threshold, and invites the Court to determine on the merits complex policy choices ([94]-[96], [100]).
(viii) If disproportionality were considered separately from unreasonableness, the applicants would fail on that ground also. Disproportionality is available only where the provision empowering subordinate legislation to be made is directed to a particular purpose, as opposed to it having a connection with a particular subject matter. The test of reasonable proportionality is whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling legislation. Proportionality analysis does not involve determining policy or fiscal choices which are the province of Parliament ([98]-[99]).
(ix) The powers granted by the enabling legislation are broad; for example, the NSW Health Minister “may take such action” and “may by order give such directions” as the Minister considers necessary. Given the breadth of this provision, the Court was not persuaded that there was a serious question to be tried other than that the NSW order was beyond the ambit of the power of its enabling legislation ([101]).
(x) In making discretionary considerations, the Court considered the potential effect of the relief sought on the rights or interests of third parties or the public in general, as well as the parties involved. The proffered undertaking as to damages did not provide adequate protection of the rights and liabilities of the respondents and third parties, due to the risk that, should the application be granted, members of the public will become infected, some will inevitably require hospitalisation and some might also die ([110]-[111]).
Read the decision on the Federal Court of Australia website.
|
| | | Decisions of Interest Bulletin |
| | Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204
CIVIL PROCEDURE – jurisdiction – declaration that court has no jurisdiction to decide claim – claim for death or injury – carriage by air – occurring entirely within New South Wales – where party brought claim under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) in the Federal Court – where Federal Court lacked jurisdiction to decide claim – claimant brought claim in the Supreme Court under s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – Supreme Court claim brought more than two years after relevant carriage by air – whether order of the Federal Court dismissing claim for want of jurisdiction was a “relevant order” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – whether claim in the Supreme Court was extinguished by s 34 of the Civil Aviation (Carriers’ Liability) Act 1959
CONSTITUTIONAL LAW – Commonwealth and State relations – inconsistency of laws – Supreme Court proceedings pursuant to s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – where those proceedings are linked to incompetent Federal Court proceedings but operate independently of them – where s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) operates to extinguish any claim for damages under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) if not brought within two years after an accident – whether order made under s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) undermined the purpose of s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – order under s 11(2) not a discretionary extension of time to bring a proceeding otherwise out of time
LIMITATION OF ACTIONS – operation of bar – action for compensation for death under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) – where s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) provides that the right to damages is extinguished if a party does not bring an action within two years of an aviation accident – characterisation of statutory bar – whether s 34 is a “limitation law” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – where the law recognises a distinction between the barring of a right of action and its extinguishment
STATUTORY INTERPRETATION – contextual approach – context to be considered in the first order – context understood in a broad sense – including the existing state of the law, legislative purpose, legislative history and extrinsic materials
STATUTORY INTERPRETATION – departure from literal meaning – where literal reading of “relevant order” in s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) does not conform to the legislative purpose – where purpose determined by reference to immediate context and extrinsic materials
STATUTORY INTERPRETATION – legislative purpose – remedial legislation – where statute passed to remedy the effect of the decision of the High Court of Australia in Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 – whether “want of jurisdiction” in s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) refers to the conferral of jurisdiction held to be invalid by the High Court
TRAFFIC LAW AND TRANSPORT – aviation – carriage by air – death or personal injury – intra-state carriage by air occurring entirely within New South Wales – where party brought claim under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) in the Federal Court – where Federal Court lacked jurisdiction to decide claim – claimant brought claim in the Supreme Court under s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – whether order of the Federal Court dismissing claim for want of jurisdiction was a “relevant order” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW)
TRAFFIC LAW AND TRANSPORT – aviation – statutory liability – limitation of actions – characterisation of statutory bar – whether s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) is a “limitation law” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW)
WORDS AND PHRASES – “relevant order” – Federal Courts (State Jurisdiction) Act 1999 (NSW), s 11(1)
WORDS AND PHRASES – “limitation law” – Federal Courts (State Jurisdiction) Act 1999 (NSW), s 11(1) |
| Queensland Bulk Water Supply Authority t/as Seqwater v Rodriguez & Sons Pty Ltd [2021] NSWCA 206
APPEALS – leave to appeal – representative proceedings – interlocutory orders – orders final with respect to the representative party – no finality as to group members claims – challenge to answers to common questions
TORTS – negligence – standard of care – acts or omissions of public authority – exercise of statutory function – statutory protection – application of Wednesbury standard of care – Civil Liability Act 2003 (Qld) s 36
NEGLIGENCE – standard of care – conduct of flood operations – compliance with Flood Operations Manual – construction of Manual written by flood engineers for application by flood engineers – purposive construction – dual purposes of water supply and flood mitigation – concept of flood mitigation – releases not to exceed peak inflows – use of best available rainfall forecasts – degrees of tolerance – scope for professional judgment – role of the senior flood operations engineer in determining strategies
NEGLIGENCE – causation – factual causation – cumulative effect of sequential breaches – series of acts jointly sufficient to cause harm – division of single course of conduct into discrete breaches artificial
TORTS – damage to property – whether liability apportionable – concurrent wrongdoers – whether acting independently of each other – Civil Liability Act 2003 (Qld) s 30
TORTS – damages – prejudgment interest on damages – property damage – awards with respect to cleaning undertaken by volunteers – interest on such awards – interest on subventions in form of charitable relief
COSTS – apportionment of costs – wrongful conduct governed by Queensland law – proceedings brought in New South Wales – Civil Procedure Act 2005 (NSW), s 98 applied |
| Paolucci v Makedyn Pty Ltd [2021] NSWCA 215
CONTRACT – contract to transfer land, subdivide it and reconvey lots to vendor on which were constructed a House and Duplex – developer failed to provide Layout Plans to vendor of House and Duplex – plans ultimately provided – plans gave rise to dispute as to dimensions of “Duplex” – developer in breach of promise to reconvey lots with House and Duplex constructed – common ground that reasonable not to construct Duplex until dispute resolved – whether order for reconveyance of lots as vacant land plus Lord Cairns’ Act damages appropriate – Soames v Edge (1860) Johns 669; 70 ER 588 considered – whether primary judge misapprehended plaintiff’s case – whether anything turns on misapprehension of plaintiff’s case – whether primary judge erred in proper construction of “Duplex” – whether primary judge erred in failing to address availability of contractual limitation of liability
SPECIFIC PERFORMANCE – nature and availability of remedy – relevance of historic breach – need to establish not just for plaintiff to be confined to damages – damages under Supreme Court Act 1970 (NSW), s 68 (Lord Cairns’ Act) – nature and availability of remedy |
| KEPCO Bylong Australia Pty Ltd v Bylong Valley Protection Alliance Inc [2021] NSWCA 216
ADMINISTRATIVE LAW – judicial review – error of law – review of decision of consent authority – construction of State Environmental Planning Policy – whether decision-maker considered conditions aimed at ensuring that greenhouse gas emissions are minimised to the greatest extent practicable
ADMINISTRATIVE LAW – judicial review – error of law – obligation to consider case presented by applicant – minimising scope 3 greenhouse gas emissions of thermal coal – whether refusal of proposal could lead to use of inferior resource with higher emissions
ADMINISTRATIVE LAW – judicial review – error of law – reference in reasons to “no evidence” – where information before decision-maker – whether reasons indicated decision-maker not satisfied that information provided rational basis for finding sought
ENVIRONMENT AND PLANNING – development application – refusal of consent – judicial review – State significant development – coal mine proposal – consent required from Independent Planning Commission – construction of Mining SEPP, cl 14 – conditions of development
STATUTORY INTERPRETATION – “applicable … policies … concerning greenhouse gas emissions” – State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW), cl 14(2) |
| Gibson v Director of Public Prosecutions (NSW) (No 2) [2021] NSWCA 218
ADMINISTRATIVE LAW – Judicial review – where questions sought to be referred by the applicant to the Court of Criminal Appeal were plainly not pure “questions of law” – where any jurisdictional error by the primary judge in finding that she lacked power to refer questions to the Court of Criminal Appeal because she was functus officio was thus immaterial – where relief withheld in the exercise of the Court’s discretion because of its lack of demonstrated utility
CRIMINAL PROCEDURE – Submission of purported questions of law to Court of Criminal Appeal – nature of the power and role of a District Court judge in deciding whether or not to submit a question of law to the Court of Criminal Appeal – contextual considerations surrounding the operation of s 5B of the Criminal Appeal Act 1912 (NSW)
CRIMINAL PROCEDURE – Submission of purported questions of law to Court of Criminal Appeal – where applicant submitted questions informally via email to the Registrar of the Local Court – where no formal order was made by the primary judge dismissing the applicant’s request to state a case to the Court of Criminal Appeal – where no reasons were published by the primary judge for declining the applicant’s request – where applicant was advised of the primary judge’s refusal to state a case via an email from the Registrar of the Local Court
CRIMINAL PROCEDURE – Submission of purported questions of law to Court of Criminal Appeal – where questions sought to be referred to the Court of Criminal Appeal were plainly not pure “questions of law”
JUDGMENTS AND ORDERS – where no formal order was made by the primary judge dismissing the applicant’s request to state a case to the Court of Criminal Appeal – where no reasons were published by the primary judge for declining the applicant’s request – where applicant was advised of the primary judge’s refusal to state a case via an email from the Registrar of the Local Court – general requirement for judgments to be given in open court where practicable to do so – requirement for clarity as to when a judgment has been given – requirement that a judgment reaches the parties |
| Joshan v Pizza Pan Group Pty Ltd [2021] NSWCA 219
CIVIL PROCEDURE – stay of proceedings – under the Service and Execution of Process Act 1992 (Cth) – where District Court of New South Wales was court of issue – whether South Australian court was “the appropriate court” to determine all the matters in dispute between the parties – where the identification of all the matters in issue between the parties is a prerequisite to resolving the question of what is “the appropriate court”
CONSUMER LAW – industry codes – Franchising Code of Conduct – what constitutes a “franchise agreement” – whether a deed of guarantee is a “franchise agreement” as defined in cl 5 of the Code – where the guarantors assumed certain obligations of the franchisee and covenanted to be personally bound by the terms and conditions of the Franchise Agreement pursuant to the deed of guarantee – where the deed of guarantee conferred no right to carry on the business of offering, supplying or distributing goods or services as a franchisee
CONSUMER LAW – industry codes – Franchising Code of Conduct, cl 21(2)(a) – where franchise agreement must not contain a clause that requires a party to the agreement to bring an action or proceedings in relation to a dispute under the agreement in any State or Territory outside that in which the franchised business is based – whether franchise agreement may contain a non-exclusive jurisdiction clause – where the prohibition refers to a clause that “requires” the parties to litigate in a particular forum
EVIDENCE – standard of proof – civil cases – application for stay of proceedings under the Service and Execution of Process Act 1992 (Cth) – whether applicant bears onus of proof – whether standard of proof is on the balance of probabilities – where primary judge applied the standard of a “clear and compelling basis” for the relief sought – whether Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54 was decided correctly
PRIVATE INTERNATIONAL LAW – jurisdiction – non-exercise of jurisdiction – stays under the Service and Execution of Process Act 1992 (Cth) – jurisdiction clauses – non-exclusive jurisdiction clauses – whether excessive reliance placed upon non-exclusive jurisdiction clause in favour of New South Wales – where s 20(4)(d) of the Service and Execution of Process Act 1992 (Cth) requires the court of issue to take into account “any agreement between the parties about the court or place in which the proceeding should be instituted” – whether dictum in Asciano Services Pty Ltd v Australian Rail Track Corp Ltd [2008] NSWSC 652 at [18] was correct
PRIVATE INTERNATIONAL LAW – jurisdiction – non-exercise of jurisdiction – stays under the Service and Execution of Process Act 1992 (Cth) – standard of proof – whether applicant bears onus of proof – whether standard of proof is on the balance of probabilities – where primary judge applied the standard of a “clear and compelling basis” for the relief sought – whether Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54 was decided correctly
PRIVATE INTERNATIONAL LAW – jurisdiction – non-exercise of jurisdiction – stays under the Service and Execution of Process Act 1992 (Cth) – where District Court of New South Wales was court of issue – whether South Australian court was “the appropriate court” to determine all the matters in issue between the parties – where the identification of all the matters in issue between the parties is a prerequisite to resolving the question of what is “the appropriate court”
WORDS AND PHRASES – “franchise agreement” – Competition and Consumer (Industry Codes––Franchising) Regulation 2014 (Cth) sch 1 cl 5 |
| Allianz Australia Insurance Limited v Rawson Homes Pty Ltd [2021] NSWCA 224
CONTRACTS — Construction — Construction of insurance contract — Where policy insured against damage to construction projects — Where houses under construction damaged in hailstorm — Where policy provided for application of “deductible” — Whether “deductible” to be applied in respect of each house under construction, or whether to be applied only once to the total sum to be paid for damage caused by the hailstorm |
| McIntosh v Morris [2021] NSWCA 225
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — General rule that costs follow the event — Proceedings discontinued or dismissed — Whether parties acted reasonably
TORTS — Trespass to land — Continuing trespass — Where subterranean encroachment upon plaintiffs’ land from defendants’ land — Where defendants were not in possession when the encroachment was constructed — Whether defendants liable for trespass committed by predecessor in title — Whether encroaching material affixed to defendants’ land |
| Nadilo v Eagleton [2021] NSWCA 232
COSTS – where Class 4 proceedings in Land and Environment Court dismissed by consent – where on application under UCPR r 42.20(1) primary judge ordered “otherwise” by making no order as to costs – where notwithstanding consent orders applicant clearly successful party – whether manifest error in failing to order respondents pay applicant’s costs of proceedings |
| | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Legal Bulletin should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication.
|
| |
