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| | NCAT Legal Bulletin Issue 11 of 2020
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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 features case summaries of recent decisions from the New South Wales Court of Appeal, Supreme Court of Western Australia and the Federal Court of Australia, including:
- Taylor v Council of the Law Society of New South Wales [2020] NSWCA 273 – in which the Court of Appeal allowed an appeal from Ms Erica Taylor, from a decision at NCAT that the Tribunal had jurisdiction to deal with a disciplinary action regarding her professional conduct as a lawyer.
- Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284 – in which the NSW Court of Appeal allowed an appeal from Mr Graham John Vickery, from a decision at NCAT that the Tribunal did not have the power to order damages for a breach of the owners corporation’s obligation to maintain the common property of a strata scheme, under s 106 of the Strata Schemes Management Act 2015 (NSW).
- Meat Carter Pty Ltd v Steven Melides [2020] NSWCA 307 – in which the NSW Court of Appeal allowed an appeal regarding workers compensation for an employee who became ill whilst working in the appellant’s abattoir. The appellant, Meat Carter Pty Ltd, appealed against orders made by the Presidential member of the Worker’s Compensation Commission, who found the respondent, Melides, was entitled to payment at the special rate for workers with the highest needs, specified in s 38A of the Workers Compensation Act 1987 (NSW) (the 1987 Act).
- Ward v Commissioner for Consumer Protection [2020] WASC 420 – in which the Supreme Court of Western Australia refused the appeal of Ms Joanne Ward to review the decision of the State Administrative Tribunal to uphold the refusal of the Commissioner for Consumer Protection to grant a real estate agent and business agent’s licence, pursuant to s 27 of the Real Estate and Business Agents Act 1978 (WA).
- Portframe Enterprises AFT Gnaraloo Station Trust v State of Western Australia [2020] FCA 1622 – in which the Federal Court made a summary dismissal, as requested by an interlocutory application by the three respondents, the State of WA, the Minister for Lands and Nganhurra Thanardi Garrbu Aboriginal Corporation RNTBC. The applicant, Portframe Enterprises, sought to be included in an Indigenous Land Use Agreement that the three respondents were party to. The respondents contended that the applicant had no reasonable prospect of successfully prosecuting the proceeding and/or that no reasonable cause of action was disclosed.
This issue also provides links to a number of summaries published separately by the NSW Court of Appeal Decisions of Interest Bulletin.
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New South Wales Court of Appeal
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| Taylor v Council of the Law Society of New South Wales [2020] NSWCA 273
3 November 2020 - Macfarlan, McCallum JJA, Simpson AJA
In sum: The Court of Appeal of New South Wales allowed an appeal from Ms Erica Taylor, from a decision at NCAT that the Tribunal had jurisdiction to deal with a disciplinary action regarding her professional conduct as a lawyer.
Facts: Ms Erica Taylor, the appellant, conducted a practice as a sole practitioner under the name “lexicon: legal”. In 2015 the Council of the Law Society of NSW appointed a trust account investigator to report on lexicon: legal’s affairs which revealed defalcations in the management of its trust account. Ms Taylor disclosed that she had made personal use of funds in the trust account. On 30 June 2015 the Professional Conduct Committee of the Law Society passed certain resolutions that Ms Taylor wilfully breached the Legal Profession Act 2004 (NSW) (LPA) (now repealed) and misappropriated trust funds. On 18 August 2016 the Council resolved that Ms Taylor was not a fit and proper person to hold a practising certificate.
Section 552 of the LPA created a statutory time limit of six months from the date on which the Council decided that there was a reasonable likelihood that the legal practitioner would be found by NCAT to have engaged in unsatisfactory professional conduct or professional misconduct. The Committee made a resolution in these terms on 15 November 2018. Additionally, s 495 of the LPA required a complaint about the conduct of a legal practitioner to have been duly made to enliven NCAT’s jurisdiction to deal with a disciplinary application. Such an application was brought by the Council against Ms Taylor under s 551 of the LPA in NCAT on 14 May 2019. Contrary to Ms Taylor’s submissions, NCAT held that it had jurisdiction. Ms Taylor brought an appeal against that decision.
Held (allowing the appeal):
(i) A minute of a resolution passed orally at a meeting does not meet the requirement of s 504(2) of the LPA that a complaint about an Australian legal practitioner “must be in writing”. The absence of a written complaint would be sufficient to justify setting aside the orders of NCAT ([2], [90]).
(ii) The purpose of a complaint under the Pt 4.2 of the LPA serves a role analogous to the formulation of a charge for the purposes of criminal proceedings. The terms in which the complaint is formulated are required to be understood by a variety of people for the purpose of performing a variety of functions. A complaint for the purposes of Pt 4.2 of the Legal Profession Act 2004 should similarly be framed, if not with the specificity of an indictment, then at least in terms that enable any person reading the complaint to know its parameters for any purpose for which it is required to be considered. The passing of an oral resolution at a meeting, the accurate recording of which is left to the keeper of the minutes, does not meet that requirement. The passing of a resolution may be a necessary first step for a Council. However, in my view, in order to complete the process of making a complaint in accordance with s 504, the Council was required to proceed to make a document (not a minute of the meeting) which would stand as the complaint for the many purposes for which it might be required under the Act ([3], [5]-[6]).
(iii) The futurity of the language of the 30 June 2015 resolution indicated an intention to make a complaint at a later time. No complaint within the meaning of s 495 was made prior to 1 July 2015. NCAT did not have jurisdiction to deal with the Council’s disciplinary application. The 30 June 2015 resolution of the Council was no more than a cursory statement of the conclusions that the Council anticipated would be drawn. It did not sufficiently describe the conduct the subject of the Council’s allegations and therefore did not meet the requirements of s 504(3)(c) of the LPA ([67]-[68], [87], [71]).
(iv) The 18 August 2016 resolution was not a decision for the purposes of s 552(6) of the LPA, and therefore NCAT was not deprived of jurisdiction by reason of the expiration of the limitation period in s 552(1). This decision was reached on 15 November 2018. The proceedings were commenced prior to the expiration of the permitted period ([92], [93]-[95]).
Read the decision on the NSW Caselaw website.
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| Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284
11 November 2020 - Basten, Leeming, White JJA
In sum: The Court of Appeal of New South Wales allowed an appeal from Mr Graham John Vickery, from a decision at NCAT that there was no power to order damages for a breach of s 106 of the Strata Schemes Management Act 2015 (NSW).
Facts: The appellant, Mr Graham John Vickery (Mr Vickery), was the owner of an apartment in a strata scheme, who claimed that the respondent (the Owners Corporation) breached its obligation to maintain the common property, resulting in his apartment leaking with water. Pursuant to s 106(1) of the Strata Schemes Management Act 2015 (NSW) (the SSMA), the Owners Corporation was required to maintain common property of a strata scheme and keep it in a state of good and serviceable repair. Section 106(5) of the SSMA provides that a lot owner may recover from the Owners Corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of the section. Section 232 of the SSMA provides that the NSW Civil and Administrative Tribunal (NCAT) may “make an order to settle a complaint or dispute”.
Mr Vickery commenced proceedings in NCAT, claiming $97,000 damages for lost rent as a result of the leak. The Owners Corporation agreed that it had breached its obligation, that the breach had caused loss to Mr Vickery, and the amount of that loss. The sole issue in the appeal was whether the language of s 232 of the SSMA, providing that NCAT may “make an order to settle a complaint or dispute”, included an order for payment of damages. An Appeal Panel of NCAT held that there was no power to order damages for breach of s 106. Mr Vickery appealed to the Court of Appeal.
Held (Basten and White JJA allowing the appeal and remitting to the NCAT Appeal Panel, Leeming JA dissenting):
(i) Pursuant to the SSMA, the principal responsibility for management of a strata scheme is vested in the owners corporation, which has responsibility for maintaining and repairing the common property of the strata scheme. The owners corporation is the owner of the common property. More specifically, the owners corporation is required to maintain the common property and keep it in a state of good and serviceable repair. Where a breach of that obligation causes loss to a lot owner, that person may bring an action for damages against the owners corporation. Whether or not NCAT can order the payment of damages is a matter of how s 232 is construed. Section 232(1) of the SSMA enables NCAT to “make an order to settle a complaint or dispute about any of the following.” Whether or not this includes damages under s 106 is the central question of this matter (Basten JA at [1]-[2], [4]-[7]).
(ii) The respondent argued that s 232(1) should be read down so as to exclude the particular s 106 dispute. They argued that a claim for damages under s 106(5) required, for its successful resolution in favour of a lot owner, an order for payment of money. The respondent argued was an inappropriate form of order for NCAT to make without an express enabling provision. The Owners Corporation argued that the numerous money-ordering powers under the SSMA expressly conferred powers on NCAT, but none related to s 106(5). However, there are two possible constructions to the provision. Firstly, as the respondent contends, they must be construed as necessary to confer power to order payments of money on NCAT, rather than such a power being vested solely in a court. Alternatively each provision confers a stand-alone power to order payment of money in circumstances where no body would otherwise have such a power. On that approach, the sections involve the primary conferral of power, not a consequential allocation of power to NCAT, which would otherwise by default have vested in a court. Given the provisions of the Tribunal Act, which seek to avoid concurrent proceedings in the Tribunal and a court, it is to be expected that compensation or other money orders will be available in the Tribunal ([29], [31]).
(iii) The legislative history of strata management is relevant. At all stages the language found in the chapeau to s 232(1) has been understood as sufficiently broad to encompass an order for the payment of damages. The language of s 232(1) finds its origin in s 105 of the Strata Titles Act 1973 (NSW) (1973 Act), conferring power on a Strata Titles Commissioner appointed under that Act to settle disputes and rectify complaints. However, it is significant that when in 1984, subs (1A) was added, permitting the Commissioner to make an order for payment of “damages not exceeding $500” no amendment was made to the language of settling a dispute or rectifying a complaint. If an order for payment of damages fell within the language of s 106(1), it is not easy to construe the same language in the 2015 Act as not adequate to include an order for payment of damages. The only substantive change has been to delete the reference to “rectifying complaints”, [20] a change which is either neutral or supportive of the proposed construction, by removing language less easily seen (if standing alone) to include ordering payment of damages. In the absence of an express prohibition in s 232 in relation to the powers of the Tribunal, it would be wrong in principle to construe the unchanged language as subject to an implied limitation which has not existed in its past emanations. There is little doubt that the legislation has been amended from time to time, without attempting to ensure that any infelicity created in the language used elsewhere in the legislation has been considered and rectified. The better course is to construe the operative provisions in their own terms and give effect to them accordingly ([38], [47], [51]).
(iv) It is important to take into consideration the fact that the SSMA was enacted after the Tribunal Act had come into force. The jurisdiction and powers conferred by s 232 significantly expanded the powers of NCAT, as compared to the adjudicators under the 1996 Act. Further, unlike its predecessors, s 232 dealt with the issues surrounding potential jurisdictional overlap between NCAT under that section and other proceedings relating to the same dispute. In addition, cl 5 of Sch 4 of the Tribunal Act confers exclusive jurisdiction on NCAT where, when an application is made to NCAT, “no issue arising under the application” is then before a court. Conversely, where an issue is before a court at the time of an application to NCAT, NCAT has no jurisdiction to determine the issue ([53]-[58]).
(v) The decision of the Appeal Panel at NCAT should be set aside, and the matter remitted to the Appeal Panel for the Owners Corporation’s appeal to be dealt with according to law ([62]).
Dissenting Judgement of Leeming JA
(vi) NCAT did have power to make orders resolving a complaint about failure to maintain the common property, and NCAT is able to make orders which include monetary payments for compensation. However the appeal should be dismissed, because there was no power to hear and determine Mr Vickery’s action for breach of statutory duty (Leeming JA, dissenting, at [67]).
(vii) It is common ground that NCAT can make orders resolving a dispute under s 106(1), and it is clear that Mr Vickery contends, and the Owners Corporation denies, that those orders can include damages. But there is an important distinction between a dispute concerning the Owners Corporation’s failure to maintain common property, and a cause of action sounding in damages for breach of statutory duty. The right of the appellant to recover damages for breach of statutory duty pursuant to s 106(5) of the Act is a right at common law, commonly known as the tort of breach of statutory duty (Leeming JA, dissenting, at [76], [80]).
(viii) Section 232 of the Act does not authorise NCAT to order damages for breach of statutory duty. The language of “settle” a “complaint” or “dispute”, and the breadth of the power, speaks of dispute resolution by means other than by payment of damages. This is supported by statutory precursors to s 232, which expressly provided a power to order damages, limited in monetary value, and by the lack of jurisdictional limit accompanying s 232 (Leeming JA, dissenting, at [141]-[142], [144]-[145], [147]).
(ix) The uncertainty of the legislation regarding NCAT’s power to award damages should be resolved by legislative amendment, as these aspects will probably affect hundreds or thousands of lot owners dealing with owners corporations (Leeming JA, dissenting, at [66]).
Read the decision on the NSW Caselaw website.
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| Meat Carter Pty Ltd v Steven Melides [2020] NSWCA 307
25 November 2020 - Macfarlan, Gleeson, White JJA
In sum: The Court of Appeal allowed an appeal from the appellant, Meat Carter Pty Ltd, against orders made by the Presidential member of the Worker’s Compensation Commission, who found the respondent, Melides, was entitled to payment at the special rate specified in s 38A of the Workers Compensation Act 1987 (NSW) (the 1987 Act).
Facts: Steven Melides (the respondent), was employed by Meat Carter Pty Ltd (the appellant) as a casual delivery driver. He contracted Q fever on 14 August 2014 in the course of his employment at the appellant’s Scone abattoir and subsequently developed a consequential psychological condition. He was awarded weekly compensation from 14 December 2015 ([5]-[6]).
On 9 June 2017 a medical assessment certificate was issued, pursuant to s 325 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act). The respondent was assessed as having an impairment that was permanent as the result of his injury (as defined) and that the degree of permanent impairment (described as whole person impairment) was 60 per cent. The respondent’s workers compensation payments had been regulated by ss 36, 37 and 38 of the 1987 Act. As a consequence of the medical certificate, the respondent claimed higher payments of weekly compensation pursuant to s 38A of the 1987 Act, which provides that if a worker with highest needs’ weekly payment of compensation under ss 36, 37 or 38 falls below a prescribed amount that amount is to be treated as the prescribed amount. A “worker with the highest needs” is defined in s 32A of the 1987 Act.
The compensation payments the respondent was entitled to under s 38A were higher than those he had received prior to the issue of the medical certificate on 9 June 2017. The appellant’s insurer made the payments, as adjusted from 8 July 2017, in addition to a supplementary payment to adjust the respondent’s benefits as from 9 June 2017 ([12]).
The dispute centred on whether the respondent was entitled to retrospectively increased payments from 29 October 2014 to 9 June 2017. The Arbitrator initially denied this, before the Acting Deputy President ordered the higher s 38A rate was payable from the time of injury ([13]-[17]).
The appellant appealed under s 353(1) of the 1998 Act.
Held (allowing the appeal):
(i) Section 38A does not provide for the substitution of amounts calculated pursuant to the section for amounts payable under ss 36, 37 or 38 prior to the injured worker being a “worker with highest needs”. The respondent came within the definition of “worker with highest needs” because and only because his degree of permanent impairment had been assessed for the purpose of Div 4 to be more than 30 per cent. Prior to 9 June 2017 there was no assessment. Prior to that date the respondent was not a worker with highest needs within the meaning of s 38A ([34]-[35]).
(ii) Sections 36, 37 and 38 require different determinations that might need to be made at different times and potentially on a week-by-week basis, depending upon the injured worker’s capacity for work. Therefore, it followed that unless the injured worker were a worker with the highest needs as defined in s 32A, they were not entitled to higher amounts of weekly compensation payments under s 38A unless and until, and only when, the injured worker satisfied the definition of a worker with the highest needs. While s 32A, as a definition section, does not give rise to any entitlements for compensation, the definition is to be read into s 38A ([42]-[44], [47]).
(iii) The Court rejected the respondent’s contention that payments should commence, if not from the date of the injury, then from the date on which an approved medical specialist advised the respondent’s solicitor that an assessment of the requisite impairment would be appropriate. The Court found that opinion was not a medical assessment for the purposes of the Act ([57]-[58]).
Read the decision on the NSW Caselaw website.
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| Supreme Court of Western Australia
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| Ward v Commissioner for Consumer Protection [2020] WASC 420
25 November 2020 - Le Miere J
In sum: The Supreme Court refused the appeal of Ms Joanne Ward to review the decision of the State Administrative Tribunal to uphold the refusal of the Commissioner for Consumer Protection to grant a real estate agent and business agent’s licence pursuant to s 27 of the Real Estate and Business Agents Act 1978 (WA).
Facts: The appellant, Ms Joanne Ward (Ms Ward), applied for a real estate agent and business agent’s licence, and was denied by the Commissioner for Consumer Protection, the respondent. Ms Ward applied to the State Administrative Tribunal for review of the respondent’s decision ([1]).
In January 2020 the Tribunal affirmed the decision of the respondent. The Tribunal stated that it was not satisfied that Ms Ward had sufficient practical experience for the issue of a licence, pursuant to ss 27(1)(b) and 27(2), and sch 1 cl 1(a) of the Real Estate and Business Agents Act 1978 (WA) (REBA Act). Section 27(1) requires an applicant for a licence must be a “fit and proper person,” and s 27(2) says that to be found to be a “fit and proper” person the applicant must be qualified in accordance with Sch 1. Clause 1(a) of Sch 1 requires “sufficient practical experience in negotiating transactions to enable [her] to carry on the business of an agent satisfactorily.” Clause 2(a) defines this as having had, during the two years immediately preceding the application for the licence, “lawfully and satisfactorily performed the functions of a sales representative on behalf of a person who lawfully carried out the functions of an agent, during that period or on behalf of a firm which did so” ([2], [5]-[6], [9]-[11]).
The appellant seeks leave to appeal the Tribunal’s decision on the ground that it erred in fact and in law in finding that the appellant did not meet that requirement ([3], [32]).
Held (refusing leave to appeal and dismissing the appeal):
(i) The appellant’s contention that the Tribunal impermissibly substituted the word “for” with “during” in cl 2 was accepted. However the Court found this misuse of the word should not be read as the Tribunal suggesting the applicant is required to, in effect, perform the functions of a sales representative for every hour of every day for two years immediately preceding the person’s application for a licence ([36], [42]).
(ii) The general requirement of sufficient practical experience in Sch 1, cl 1(a) is not confined to the specific requirements of Sch 1, cl 2(a). In other words, an applicant who is unable to satisfy the deeming provision in cl 2(a) may still satisfy the practical experience provision in cl 1(a). As such, the appellant’s contention that it is not a specific requirement of Sch 1, cl 2(a) for an application for a licence to immediately follow on from the two year period of practical experience is rejected (43]-[44]).
(iii) The Tribunal correctly found that Sch 1, cl 2(a) had no application in the proceeding as the appellant did not apply for a licence immediately after the conclusion of her role as a sales representative. After finding cl 2(a) had no application, the Tribunal correctly gave consideration as to whether the appellant had sufficient practical experience for the purpose of satisfying cl 1(a) ([46]).
(iv) Although the appellant correctly argued that the Tribunal referred to a superseded version of the REBA Act and judgments in other cases with respect to the interpretation of the REBA Act, the wording of cls 1(a) and 2(a) remain the same, and so there was no error by the Tribunal with respect to the proper interpretation of the relevant clauses ([47]-[48]).
(v) The appellant’s dissatisfaction with the finding of the respondent and the Tribunal that she did not have sufficient practical experience for the issue of a licence does not disclose an error. The question of whether the appellant has sufficient practical experience to justify the grant of a licence is a matter within the expertise of the Tribunal, and so its decision is afforded weight and respect ([49]-[51]).
Read the decision on the eCourts Portal of Western Australia website.
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| Federal Court of Australia
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| Portframe Enterprises ATF Gnaraloo Station Trust v State of Western Australia [2020] FCA 16229 November 2020 - Griffiths J
In sum: The Federal Court made a summary dismissal, as requested by an interlocutory application by the three respondents, the State of WA, the Minister for Lands and Nganhurra Thanardi Garrbu Aboriginal Corporation RNTBC, who contend that the applicant, Portframe Enterprises, has no reasonable prospect of successfully prosecuting the proceeding and/or that no reasonable cause of action is disclosed.
Facts: The applicant commenced substantive proceedings seeking an order that it had a right, under the Native Title Act 1993 (Cth) (NT Act), to be a party to the Gnaraloo Tourism Expansion Indigenous Land Use Agreement (ILUA), along with the three respondents ([4]).
The applicant holds a pastoral lease under s 101 of the Land Administration Act 1997 (WA) (LA Act), on which it operates the tourist attraction Gnaraloo Station. For this, the applicant holds two tourism leases under s 79 of the LA Act, for which it is a condition that the lessee must be the same entity as the party holding the pastoral lease ([7]).
In 2004, the first and second respondents entered into an agreement with the previous Gnaraloo pastoral lessee which provided for the exclusion of certain land from the Gnaraloo pastoral lease when it was renewed in June 2015 (the 2004 Agreement). The Gnaraloo pastoral lease was acquired by the applicant in 2005 and, as one of the conditions of sale, it agreed to be bound by the 2004 Agreement. In 2007, the applicant surrendered an area of approximately 10,284 hectares to the first and second respondents as required by cl 3 of that 2004 Agreement. In turn, the applicant gained a right to expand the two existing tourism lease areas ([8]).
In January 2013 the first and second respondents issued Notices of Intention to Take (NOITTs) in relation to the proposed expansion of the two existing tourism lease areas, but rather than proceeding with the NOITTs and compulsorily acquiring the affected land, the first and second respondents decided to negotiate an ILUA with the third respondent. The purpose of the ILUA was “to obtain the consent of the native title holders to the proposal to grant two leases to the applicant, and amalgamate those existing leases held by the Applicant, without the need to extinguish native title rights and interests” ([9]-[10]).
The applicant first learnt of the ILUA in September 2017, but was unable to obtain a copy until April 2018. An amended ILUA was supplied to the applicant in June 2020, proposing the ILUA be a body corporate agreement, rather than an area agreement as previously proposed ([10]-[11]).
The applicant contends it has a right to be a party to the ILUA because of its pre-existing rights and interests, which is says are linked to the draft ILUA. It contends that the draft ILUA is “part of a pre-existing contractual arrangement between the Applicant and the State” (which is a reference to the 2004 Agreement) ([14]-[15]).
The applicant argued that s 24BD gave it a right to be party to the ILUA. The section reads that in addition to (1) the registered native title bodies corporate; and (2) the Commonwealth, State or Territory, if the agreement makes a provision for the extinguishment of native title rights; (3) “Any other person or persons may be parties.” The applicant argued that the State did not have to be a party, as the extinguishment of native title rights was not proposed in the agreement, and the incorporation of the first respondent was entirely discretionary, as per the use of the word “may” in paragraph (3). As such the discretionary powers should not be used in a one-sided way so as to preclude the applicant from being party to the draft ILUA in circumstances where the State respondents were proposed to be parties, even though there was no obligation for them to be so ([19], [47]).
The respondents argued that s 24BD(3) allows other persons may be, but are not required to be, parties. There is no provision in the NT Act that entitles the applicant to be a party. The ILUA binds all native title holders who are not parties, but does not bind any other non-parties, so the applicant would not be bound by the ILUA. Further, should the applicant join as a party to the ILUA, the provisions have already been drafted by the existing parties, and there is no basis to conclude the other parties would agree to any changes sought by the applicant ([24]-[28], [31]).
Held (upholding the interlocutory application and summarily dismissing the originating application):
(i) Particular caution needs to be exercised in determining whether summary dismissal should be granted in circumstances where there are factual disputes and the evidence is not in its final form. The principles of summary dismissal under s 31A of the Federal Court of Australia Act 1976 (Cth) were summarised by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; 236 ALR 720 at [43]-[45]. Rares J said the concept of a party having “no reasonable prospect of successfully prosecuting a proceeding” had some similarity to the common law test for determining whether a jury properly instructed could reach a verdict for a plaintiff. He further said “the court must be very cautious not to do a party an injustice by summarily dismissing the proceedings, where […] contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed” ([60]).
(ii) The central question, whether the proceeding which has been brought by the applicant arising from these events should be summarily dismissed, turns on a proper construction of the relevant provisions of the NT Act and their application to the particular circumstances here, while taking into account the relevant principles applying to an application for summary dismissal which are summarised above ([63]).
(iii) While the applicant could be a party to the ILUA, it does not have a legally enforceable right to become a party. Section 24BD draws a clear distinction between the circumstances when a particular entity must be a party to a body corporate ILUA, as opposed to the circumstances where such an entity may be a party ([64]).
(iv) The first and second respondents did not dispute the proposition that the applicant is a “grantee party” and has a right to negotiate under the provisions of Part 2 Subdiv P of the NT Act. They emphasise, however, and the Court accepts, that they are not obliged to carry out the NOITTs and compulsorily acquire the relevant land as initially contemplated. Nothing in either the NT Act or LA Act is inconsistent with that proposition. The Court accepts their further submission that before the applicant’s affected land could be compulsorily acquired, the negotiation parties (including the applicant) would be required to negotiate in good faith with a view to obtaining the third respondent’s consent ([67]).
(v) If for some reason the ILUA is not executed nor registered, it may be open to the State parties to decide to pursue the initial compulsory acquisition proposal before granting the applicant the expanded leases although this may require a further extension depending upon the timing of such a decision. It is clear, however, that if this was to occur, there would need to be compliance with the right to negotiate provisions in Subdiv P. Otherwise, the future act would be invalid as provided for in s 28 of the NT Act ([68]).
(vi) Although somewhat complex, the issues of statutory construction are capable of being resolved at this point and need not await a full trial. Further, copies of all relevant agreements and proposed agreements have been put in evidence and are capable of being construed. There are no other potential disputed facts which are relevant to the issues raised by the interlocutory application which warrant a full trial. None of the matters raised by the applicant is sufficiently compelling to avoid summary judgment being granted against it ([69]).
Read the decision on the Federal Court of Australia website.
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| | Decisions of Interest Bulletin
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| | Taylor v Council of the Law Society of New South Wales [2020] NSWCA 273
PROFESSIONS AND TRADES – lawyers – complaints and discipline – disciplinary application under Legal Profession Act 2004 (NSW) – proceedings commenced in Civil and Administrative Tribunal of New South Wales – Tribunal’s jurisdiction disputed – jurisdiction contingent upon proceedings being commenced in respect of a “complaint” that was “duly made” – Council of the Law Society of New South Wales passed a resolution that a complaint “be made” – whether language of Council’s resolution constituted a “complaint” – whether Council’s resolution met the s 504 requirements of a “complaint”
PROFESSIONS AND TRADES – lawyers – complaints and discipline – complaints made prior to commencement of the Uniform Law – transitional application of Legal Profession Act 2004 (NSW)
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| Chief Commissioner of State Revenue v Benidorm Pty Ltd [2020] NSWCA 285
REVENUE – stamp duties – declaration of trust – whether document styled “Declaration of Trust by Nominee” merely acknowledged position after grant of probate and resealing of grant – dutiable transaction - whether mere acknowledgement a dutiable transaction – significance of Duties Act 1997 (NSW) being tax on transactions, rather than tax on instruments
PRECEDENT – precedential authority of dissenting judgment – precedential authority of statements applicable to earlier legislation – precedential authority of points assumed without argument
TRUSTS – property held on trust for beneficiary – beneficiary’s will appointed his executor as sole beneficiary of his estate – effect on trust of grant of probate of will and resealing in NSW – estate not fully administered – nature of obligations owed by trustee to executor who was also sole beneficiary of deceased estate – construction of declaration of trust – whether document merely acknowledged existing state of affairs |
| Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294
TORTS – general principles – Civil Liability Act 2002 (NSW) – personal injury – “spear tackle” or “dangerous throw” during a rugby league match – whether “intent to cause injury” – presumption that a wrongdoer intends the natural and probable consequences of his or her conduct.
WORDS AND PHRASES – meaning of “intent to cause injury” – Civil Liability Act 2002 (NSW), s 3B(1) – actual, subjective, intention
NEGLIGENCE – defences – Civil Liability Act 2002 (NSW) – s 5L materialisation of an obvious risk of a dangerous recreational activity – whether intentional act – whether effected with intent cause injury – recreational activity where an intention to cause some degree of injury is likely or common. |
| Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284
STRATA TITLES – obligation of owners corporation to maintain common property in good repair – owners corporation breached obligation, causing damage to lot owner – NCAT authorised to make orders to “settle” a complaint or dispute about strata scheme – whether NCAT authorised to award damages to lot owner – consideration of nature of lot owner’s cause of action – consideration of conferral of jurisdiction and power upon NCAT – consideration of legislative history – consideration of interaction of jurisdiction of courts and NCAT – appeal allowed, NCAT authorised to award damages.
TORT – breach of statutory duty – statute authorised lot owner to recover damages for breach of statutory duty – consideration of nature of lot owner’s cause of action. |
| HDI Global Specialty SE v Wonkana No. 3 Pty Ltd [2020] NSWCA 296
CONTRACTS – Construction – Interpretation – Where exclusion clause in insurance policy referred to particular legislation “and subsequent amendments” – Whether replacement legislation a “subsequent amendment”
CONTRACTS – Construction – Principles – Correction of mistakes by construction – Where policy includes a reference to repealed legislation – Whether parties may be taken to have known of repeal and replacement of repealed legislation as part of surrounding circumstances – Whether reference absurd or clear mistake – Whether reference to be construed as reference to replacement legislation in light of surrounding circumstances |
| | 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.
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