Subject: NCAT Legal Bulletin Issue 6 of 2019

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NCAT Legal Bulletin
Issue 6 of 2019
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 of the Legal Bulletin features summaries of recent decisions from the High Court of Australia and the NSW Court of Appeal, including:
  • Glencore International AG v Commissioner of Taxation [2019] HCA 26
  • Victorian Building Authority v Andriotis [2019] HCA 22
  • Bank of Queensland Limited v AIG Australia Limited [2019] NSWCA 190
  • Mekhail v Hana; Mekail v Hana [2019] NSWCA 197
  • Bakewell v Anchorage Capital Master Offshore Ltd [2019] NSWCA 199
  • Strike Australia Pty Ltd v Data Base Corporate Pty Ltd [2019] NSWCA 205
High Court of Australia
Glencore International AG v Commissioner of Taxation [2019] HCA 26
14 August 2019 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ

In brief: The High Court unanimously dismissed an appeal from the Full Court of the Federal Court, holding that legal professional privilege is not a legal right capable of enforcement through a cause of action. It is an immunity from the exercise of powers that would otherwise compel disclosure of the material.

The appellants sought an injunction restraining the defendants from using certain documents on the basis that those documents were subject to legal professional privilege. The appellants were companies that formed part of the global Glencore plc group. In November 2017, journalists published the ‘Paradise papers’ which included leaked financial records and other internal documents of some of the world’s largest companies, including the Glencore group. The documents relevant to this case were created for the dominant purposes of the provision by a Bermuda based law practice of legal advice to the plaintiffs. The Australian Taxation Office purported to make use of the documents. That the documents were privileged was not in dispute. The plaintiffs did not seek relief on the ground of confidentiality.

The appellants contended that previous decisions of the Court did not limit the parameters of legal professional privilege only as an immunity. They argued that its scope should be determined by the policy of the law it is based on, namely the administration of justice through fostering trust and candour between lawyers and their clients. They also argued that it is illogical for the privilege to be considered a fundamental right, yet for breach of confidence to be the only available means for enforcement. Other common law jurisdictions have recognised certain general law rights as being capable of supporting an injunction. The Court rejected those arguments. The characterisation of the privilege as an immunity, with the scope it has, is well established: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. The Court said at [13]:

It is not sufficient to warrant a new remedy to say that the public interest which supports the privilege is furthered because communications between client and lawyer will be perceived to be even more secure. The development of the law can only proceed from settled principles and be conformable with them. The plaintiffs' case seeks to do more than that. It seeks to transform the nature of the privilege from an immunity into an ill-defined cause of action which may be brought against anyone with respect to documents which may be in the public domain.

The Court also made some remarks about the history and evolution of the privilege and the increasing number of statutory regimes containing compulsive powers concerning information.

Read the decision on the High Court of Australia website.
Victorian Building Authority v Andriotis [2019] HCA 22
7 August 2019 - Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ

The High Court unanimously dismissed the appeal from the Full Federal Court and held that the exception to the mutual recognition principle in the Mutual Recognition Act 1992 (Cth) is wide enough to include a ‘good character’ requirement under the Building Act 1993 (Vic). The respondent was a water proofer registered in New South Wales. His application to be registered in that jurisdiction contained false statements about work experience. The respondent sought registration as a water proofer in Victoria. The Victorian registration authority refused to allow registration because the misleading statements in the New South Wales application demonstrated dishonesty and poor character. Being of ‘good character’ was a requirement under Victorian law (s 170(1)(c) of the Building Act 1993 (Vic)).

The respondent sought registration pursuant to the Mutual Recognition Act 1992 (Cth), which entitles a person registered for an occupation in one state to be registered in a second state subject to notifying the relevant local registration authority of the second state (the ‘mutual recognition principle’). Section 17(2) creates an exception to that principle, namely ‘that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second state’ so long as those laws are ‘not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation’. The appellant argued that the ‘good character’ requirement under the Building Act 1993 (Vic) fell within the s 17(2) exception because it was not ‘a qualification or experience’. They also argued that s 20(2), which said that an authority ‘may’ grant registration, gave it a wide discretion.

The Court rejected those arguments. It held that the words ‘…qualification or experience relating to fitness to carry on the occupation…’ in s 17(2)(b) encompasses more than a educational or technical requirement. The Court arrived at that conclusion based on the purpose and statutory construction of the Mutual Recognition Act, the basis of which is an assumption that registration in one state is sufficient for registration in another state without further legal requirements in that second state. The Court rejected the argument that the word ‘may’ in s 20(2) gave it a broad authority, holding that the word ‘may’ simply provides a local registration authority with power to grant registration on the ‘ground’ set out in s 20(1) (‘registration in the first State’).

Read the decision on the High Court of Australia website.
NSW Court of Appeal
The NSW Court of Appeal publishes a regular bulletin containing summaries of its latest decisions of interest. Find below links to several such decisions from recent bulletins.
Bank of Queensland Limited v AIG Australia Limited [2019] NSWCA 190
INSURANCE – civil liability insurance policy – indemnity in respect of claims made against insured – whether single or multiple retentions applicable – Federal Court representative proceeding against insured – whether single or multiple claims against insured – effect of aggregation/disaggregation of claims clause – whether multiple claims arose out of a series of related wrongful acts

Read the decision on the NSW Caselaw website.
Mekhail v Hana; Mekail v Hana [2019] NSWCA 197
PROBATE – contested grant – suspicious circumstances – whether proponent of will had discharged onus – will left whole estate to propounder – solicitor who explained and witnessed will believed propounder was testatrix's only daughter and next of kin – solicitor's erroneous beliefs caused by lies by those benefitting under will – inability to rely on solicitor's evidence to discharge onus – requirement to consider entirety of suspicious circumstances – appeal allowed and earlier will admitted to probate – consideration of merits of approach in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 

SUCCESSION – application for provision – dependency – factors warranting – whether primary judge erred in failing to find nephew dependent on deceased – dependency conceded at trial – whether primary judge erred in failing to find primary facts on financial position and need

Read the decision on the NSW Caselaw website.
Bakewell v Anchorage Capital Master Offshore Ltd [2019] NSWCA 199
CIVIL PROCEDURE – amendment and joinder application – said to be unarguable because certain claims assigned and said to be invalid – where not all claims by all plaintiffs were assigned claims – where proceedings against defendant would continue in any event – importance of principle in Wickstead v Browne – where area of law and public policy underpinnings of principle sought to be invoked fluid – not appropriate to be determined on a summary basis

PERSONAL PROPERTY – assignment of choses in action – prohibition on assignment of bare chose in action – nature of principle stated in Trendtex Trading Corporation v Credit Suisse [1982] AC 679 and adopted in Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 – whether test of what rights are to be regarded as incidental to property rights has been modified 

PERSONAL PROPERTY – public policy against assignment of bare chose in action – underlying basis of public policy – maintenance and champerty – whether public policy fluid – where underlying public policy justification for principle capable of being challenged – inappropriate to be dealt with on a summary basis

Read the decision on the NSW Caselaw website.
Strike Australia Pty Ltd v Data Base Corporate Pty Ltd [2019] NSWCA 205
CONTRACTS – Construction – Interpretation – determination of market rent by an expert valuer – construction of provision of sub-lease requiring the valuer to “have regard to” certain matters in determining the market rent for a sub-lease of premises located at King Street Wharf, Sydney – interpretation of requirement to “have regard to” “comparable premises in the vicinity of the Premises” – whether matters listed exhaustive – meaning of “have regard to” 

VALUATION – expert determination – whether the trial judge erred in finding that the valuer did not have regard to market rents in the manner prescribed by the sub-lease – whether the trial judge erred in finding that the determination of market rent by the valuer was not binding on the appellant and the respondent as parties to the sub-lease – whether the valuer erroneously had regard to the physical configuration of the premises or tenant’s property – appeal dismissed with costs

Read the decision on the NSW Caselaw website.
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.
NSW Civil and Administrative Tribunal, Level 9, 86-90 Goulburn Street, 2000, Sydney, Australia
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