Subject: NCAT Legal Bulletin Issue 5 of 2017

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NCAT Legal Bulletin
Issue 5 of 2017
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 May to June 2017.
High Court of Australia
Hughes v the Queen [2017] HCA 20
14 June 2017 - 
Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ

In brief: 
The High Court dismissed an appeal from a decision of the NSW Court of Criminal Appeal, with a majority (Kiefel CJ, Bell, Keane and Edelman JJ) holding that tendency evidence admitted against the appellant was admissible under s 97(1) of the Evidence Act 1995 (NSW). Section 97(1)(b) relevantly provides that:

“(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”


The majority held that the determination of whether tendency evidence has “significant probative evidence” involves two considerations:

“[61] … The first matter, involving the extent to which the evidence supports a tendency, does not require that the evidence be considered "by itself". In the words of s 97(1), the evidence of either "conduct" or "a tendency" can be used to determine the tendency relied upon by "having regard to other evidence adduced or to be adduced". In other words, evidence of a tendency might be weak by itself but its probative value can be assessed together with other evidence.

[64] The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant.”


Read the decision on the High Court of Australia website.
Air New Zealand v Australian Competition and Consumer Commission; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2017] HCA 21
14 June 2017 - 
Kiefel CJ, Bell, Keane, Nettle, Gordon JJ

In brief: 
The High Court unanimously dismissed two appeals from the Full Court of the Federal Court of Australia, holding that Air New Zealand and PT Garuda Indonesia Ltd competed within a market for air cargo services in contravention of s 45(2) of the Trade Practices Act 1974 (Cth) (TPA). In doing so, the Court held (at [5]) that that the findings of fact made by the primary judge led to the conclusion that there was such a “market” in Australia, being the principal issue on appeal. 

As a starting point, the Court observed (at [11]) that, in order properly to construe s 45(2), regard must be had to other provisions of the TPA, holding that:

“Read epexegetically in the light of ss 4E, 45A and 45(3), s 45(2) operates where a corporation arrives at or gives effect to an understanding to fix prices in any market in Australia in which the corporation competes to supply services. It was not in dispute that the airlines were parties to understandings that would have contravened s 45(2) of the TPA if they were in competition to supply services in a market in Australia.”

With references to the relevant authorities (see at [12]-[14]), the Court held (at [15]) that the real issue in determining whether a “market” existed in Australia, for the purposes of s 4E of the TPA, was “whether the rivalrous behaviour – in the course of which suppliers and acquirers might be matched – occurred in Australia, whether or not it also occurred elsewhere.”

The Court then summarised the findings of fact of the primary judge, concerning the nature of the market (at [16]-[21]) and whether the airlines competed in Australia (at [22]-[34]). Ultimately, the Court held (at [35]) that, based on these findings, the airlines' price fixing conduct took place in a market in Australia.


Read the decision on the High Court of Australia website.
New South Wales v DC [2017] HCA 22
14 June 2017 - 
Kiefel CJ, Bell, Gageler, Keane, Gordon JJ

In brief: The High Court unanimously revoked a grant of special leave to appeal against a decision of the NSW Court of Appeal, holding (at [23]) that the matter was not an appropriate vehicle for considering the scope or extent of the duty of care owed by the State of New South Wales in the exercise of powers under the Child Welfare Act 1939 (NSW). 

During the course of argument, the State conceded that it would be vicariously liable for breaches of that duty of care, if that duty had been breached (at [17]). However, the Court observed (at [17]) that the Law Reform (Vicarious Liability) Act 1983 (NSW) did not commence until after the relevant times during which the alleged breaches occurred. Section 8 of that Act relevantly provides that:

“(1) … [T]he Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:

(a) is in the course of the person’s service with the Crown or is an incident of the person’s service (whether or not it was a term of the person’s appointment to the service of the Crown that the person perform the function), or

(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown.”

Accordingly because s8 had not commenced, the Court held (at [19]) that “the appeal does not squarely raise the question of principle that the State seeks to have this Court determine”.

Read the decision on the High Court of Australia website.
Court of Appeal of New South Wales
Feldman v GNM Australia Ltd [2017] NSWCA 107
25 May 2017 - 
Beazley P, McColl and Macfarlan JJA

In brief: The Court of Appeal considered the circumstances where a contract will fail for incompleteness because an essential or important part of the bargain has not yet been agreed. 

As a starting point, the Court quoted (at [61]) the English Court of Appeal’s observation, in Pagnan Spa v Feed Products Ltd [1987] 2 Lloyd’s Rep 601 at 619:


“It is sometimes said that the parties must agree on the essential terms and it is only matters of detail which can be left over. This may be misleading, since the word ‘essential’ in that context is ambiguous. If by ‘essential’ one means a term without which the contract cannot be enforced then the statement is true: the law cannot enforce an incomplete contract. If by essential one means a term which the parties have agreed to be essential for the formation of a binding contract, then the statement is tautologous. If by essential one means only a term which the court regards as important as opposed to a term which the court regards as less important or a matter of detail, the statement is untrue. It is for the parties to decide whether they wish to be bound and if so, by what terms, whether important or unimportant. It is the parties who are, in the memorable phrase coined by the judge [at p 611] ‘the masters of their contractual fate’. Of course the more important the term is the less likely it is that the parties will have left it for future decision. But there is no legal obstacle which stands in the way of the parties agreeing to be bound now while deferring important matters to be agreed later. It happens every day when parties enter into so-called ‘heads of agreement’.”

The Court then considered (at [62]-[65]) the three “categories of case” recognised in Masters v Cameron (1954) 91 CLR 353 at 360, as well as the so-called “fourth category” articulated by McClelland J in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd. The Court summarised these categories as follows:

1) The first category refers to the case where “the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect.” (at [63]). 
2) The second category refers to the case where “the parties have completely agreed on all the terms, intend no departure from the agreed terms, but have made performance of one or more terms conditional upon a formal contract being executed” (at [64]).
3) The third category refers to the case where “the parties do not intend to be bound unless and until a formal contract has been signed” (at [65]).
4) The fourth category refers to the case where “the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms”: [66].

Ultimately, the Court held (at [68]) that these categories are “neither strict nor prescriptive… [n]or … exclusive nor necessarily exhaustive”. Instead, they merely assist in describing “circumstances in which a finally binding contract may or may not have come into existence”. Accordingly, the Court in effect held (at [68]-[70]) that the primary question is whether there was, objectively assessed, an intention to form contractual relations.

Read the decision on the NSW Caselaw website.
Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113
26 May 2017 — Beazley ACJ, Basten and Meagher JJA

In brief: The Court of Appeal held (at [25]) that, when determining the date of practical completion in a commercial building contract, the usual principles of contractual construction apply. These principles were relevantly summarised in the High Court’s decision Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35] and are extracted below (footnotes omitted):

“The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". ... A commercial contract is to be construed so as to avoid it "making commercial nonsense or working commercial inconvenience.”

Read the decision on the NSW Caselaw website.
Nadinic v Drinkwater [2017] NSWCA 114
30 May 2017 - Beazley P, Leeming JA and Sackville AJA

In brief: The Court of Appeal (Leeming JA, Beazley P and Sackville AJA agreeing) considered, in detail, the equitable doctrine of fraud, outlining the basal matters concerning the meaning of “fraud” at law and in equity (at [22]), the ways in which fraud permits the rescission of contracts at law and in equity (at [23]-[27]), the occasions when rescission is not available (at [37]-[44]) and the procedural requirements for alleging and finding fraud (at [45]-[49] and [109]-[113]). 

The Court’s reasons also discussed, at length, the line of English and Australian authorities relevant to the development of the equitable doctrine of fraud. For the purposes of brevity, this interesting discussion has been omitted from the present summary.

As a starting point, the Court distinguished between the meaning of “fraud” at law and in equity, holding (at [22]):

“[A]s Gleeson CJ said in Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 at [17], “the concept of ‘fraud’ is wider in some legal contexts than in others”. For present purposes, it will suffice to distinguish the two senses in which “fraud” is used in civil litigation which correspond to different meanings at law and in equity. The difference turns on the state of mind of the person said to have committed fraud. At common law, “fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false”: Derry v Peek (1889) 14 App Cas 337 at 374. The contrast with equity was explained by Viscount Haldane LC in Nocton v Lord Ashburton [1914] AC 932 at 953-954: “[i]n Chancery the term ‘fraud’ thus came to be used to describe what fell short of deceit, but imported breach of a duty to which equity had attached its sanction”. His Lordship emphasised that a person who misconceived the extent of the obligation which a court of equity imposed upon him or her, “however innocently because of his ignorance”, was taken to have violated an obligation which he was taken by the Court to have known, and with the result that the conduct was labelled fraudulent. He said of fraud in this sense at 954 that:

“What it really means in this connection is, not moral fraud in the ordinary sense, but breach of the sort of obligation which is enforced by a Court that from the beginning regarded itself as a Court of conscience”.

The distinction must be taken to be settled law. For example, a unanimous High Court said (albeit in a statutory context) that establishing equitable fraud “does not require that an actual intention to cheat must always be proved”: Polyaire Pty Ltd v K-Aire Pty Ltd (2005) 221 CLR 287; [2005] HCA 32 at [35].”

The Court then considered (at [23]-[27]) the availability of rescission as a remedy to fraud at law and in equity, holding that:

“[23] [Except] in the special case of insurance (and even then subject to statute), it must now be taken to be settled that a contract may only be rescinded at law for fraudulent misrepresentation, while in equity, rescission is available for innocent misrepresentation.

[26] Thus, in cases where there was deliberate falsehood, rescission would be available both at common law and in equity.”

The Court thereafter observed (at [28]-[33]) that rescission at common law differs from rescission in equity, holding that:

“[28] Rescission at law was the act of the party disaffirming a contract, which of itself gave rise to the recovery of money paid (by an action for monies had and received) and which might (where law recognised the possibility, such as in the case of a chattel) effect the revesting of property transferred….

[29] Rescission was more widely available in equity than at law, because in equity, rescission was effected by court order and equity had the means to make more extensive orders so as to achieve restitutio in integrum. That included the reconveyance of property, the taking of accounts and the granting of relief on terms….”

Importantly, the Court held (at [37]) that the aphorism “fraud unravels everything” is not universally true, noting (at [38]), for example, the equitable protection afforded to a bona fide purchaser of a legal estate for value and without notice. The Court identified (at [38]-[44]) several other examples of exceptions to the maxim. Accordingly, the Court held (at [138]) that a bare finding of fraud will not entitle a party to relief by way of rescission in equity:

“[138] A finding of fraud does not without more entitle a party to relief by way of rescission in equity. As is clear from Spence v Crawford, Alati v Kruger and Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd, relief may be denied on discretionary grounds, even in the case of fraudulent misrepresentation or fraudulent non-disclosure. Further, the passages upon which [the primary judge] repeatedly relied, especially in Spence v Crawford, do not confer an unfettered discretion to vary parties’ bargains. They reflect the more generous approach in equity to framing other orders so as to achieve restitutio in integrum, which may or may not be possible, so as to satisfy the prerequisite to rescission."

Furthermore, the Court made clear (at [139]-[140]) that the question is not whether “practical justice” is required in the case, but whether or not “practical justice” can be achieved by restoring the parties to their original positions, holding (at [141]) that (emphasis added):

“There is no broad discretion in equity to rewrite a contract, even if it has been entered into as a result of fraudulent misrepresentation, by reference to what seems just. Instead, the question is whether, by the orders available to a court of equity, “practical justice” can be achieved so as to authorise the rescission of the contract and restore the parties to the position they previously enjoyed. Notwithstanding the breadth of orders available to achieve restitutio in integrum, there will be times when that cannot occur. In such cases, rescission is not available, and the plaintiff will be left to other remedies (including damages, if the misrepresentation was negligent or fraudulent).”

In relation to pleading and finding fraud, the Court held (at [45]) that “an allegation of fraud (in the strong sense of deliberate falsehood or reckless indifference to the truth) is required to be pleaded specifically and particularised.” As such, the Court held (at [47]) that a finding of fraud attracts the strictures in s 140 of the Evidence Act 1995 (NSW) and that, due to the seriousness of the allegation, a finding will not ordinarily be made without an opportunity being given to the alleged fraudster to deal with the criticism (see [48] and [109]-[113]).

Finally, following HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 479; 306 ALR 53 at [132], the Court held (at [63]) that a contravention of s 18 of the Australian Consumer Law, even though it enlivens remedies such as damages or an injunction, is not, of itself, made “unlawful” by the statute.

Read the decision on the NSW Caselaw website.
Coshott v Spencer [2017] NSWCA 118
31 May 2017 - Beazley ACJ, McColl and Simpson JJA

In brief: The Court of Appeal affirmed the proposition that, although self-represented litigants are generally not entitled to professional costs for acting for themselves in proceedings, an exception applies to solicitors who represent themselves in proceedings brought by or against them.

In doing so, the Court held that it was bound by the High Court’s decision in Guss v Veenhuizen (No 2) (1976) 136 CLR 47; [1976] HCA 57, which adopted and applied the exception recognised in London Scottish Benefit Society v Chorley (1884) 13 QBD 87.

As a starting point, the Court outlined (at [64]) the following well established propositions:

1) A self-represented litigant is not entitled to professional costs for acting for herself or himself in proceedings: Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14.
2) There is a recognised exception, known as the Chorley exception, to this rule where a solicitor is self-represented in in proceedings brought by or against him or her: London Scottish Benefit Society v Chorley.
3) The Chorley exception was applied in Australia in Guss v Veenhuizen (No 2). 


The issue (at [65]-[66]) was whether the Chorley exception applied in New South Wales in the light of statutory provisions governing costs, being s 3 of the Civil Procedure Act 2005 (NSW). Section 3 defines “costs" to mean “costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration”. It should be noted that s 98 provides that costs are in the discretion of the court.

The Court held (at [107]) that “s 98, by reference to the definition of “costs” in s 3 does not, by its express terms, render the Chorley exception inapplicable.”

Relevantly, s 60(4) and (5) of the Civil and Administrative Tribunal Act 2013 (NSW) state:

“(4) If costs are to be awarded by the Tribunal, the Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

(5) In this section:
costs includes:
(a) the costs of, or incidental to, proceedings in the Tribunal, and
(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.” 


Read the decision on the NSW Caselaw website.
CSR Limited v Adecco (Australia) Pty Limited [2017] NSWCA 121
31 May 2017 - McColl, Macfarlan and Simpson JJA

In brief: The Court of Appeal considered whether, following the expiration of an express fixed term contract, the existence of an implied contract could be inferred. The Court also considered the role of an appellate court in deciding whether inferences should be drawn from the findings of fact of the primary judge.

The Court held (at [120]) that the determination of whether the existence of an implied contract could be inferred is an evidentiary or factual task, which turned on the application of an objective “reasonable bystander” test. In doing so, the Court adopted the Victorian Court of Appeal’s approach in Brambles Ltd v Wail; Brambles Ltd v Andar Transport Pty Ltd (2002) 5 VR 169; [2002] VSCA 150.

Drawing from Empirnall Holdings Pty Ltd v Machon Paull (1988) 14 NSWLR 523 at 535 and Viva Olives Pty Ltd v Origin Olives Australasia Pty [2012] FCA 545 at [13], the Court held (at [120]) that (footnotes omitted):

“[T]he ultimate issue is whether a reasonable bystander would regard the conduct of the parties, including their silence, as signalling to the other party that their relationship continued on the terms of the expired contract. What was “required [was] conduct by the parties as if the contract remained on foot.”

In the present case, the Court held (at [124]) that the primary judge had failed to apply the objective, or reasonable bystander, test.

Furthermore, in conducting the appeal by way of rehearing under s 75A of the Supreme Court Act 1970 (NSW), the Court held (at [84]) that it was entitled to:

“draw inferences and make findings of fact (s 75A(6)(b)) and to “make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires” (s 75A(10)).”

Accordingly, the Court considered (at [85]-[87]) the role of an appellate court in deciding whether inferences should be drawn from the findings of fact of the primary judge. As a starting position, the Court held (at [85]) that (footnotes omitted):

“In general, an appellate court is in as good a position as the trial judge to decide on the proper inferences to be drawn from facts which are undisputed, or which, having been disputed, are established on the findings of the judge. In deciding the proper inference that is to be drawn, the appellate court should give respect and weight to the conclusion of the judge, but, once having reached its own conclusion, it must give effect to it.”

Furthermore, the Court had regard to the basis upon which an appellate body might draw an inference, in circumstances where there was no direct proof of a fact. The Court followed (at [86]) the statement of Gordon J in Re Day [2017] HCA 2; (2017) ALJR 262 at [18]:

“The tribunal must feel an actual persuasion of the occurrence or existence of a fact before it can be found. Where direct proof is not available and satisfaction of the civil standard depends on inference, ‘there must be something more than mere conjecture, guesswork or surmise – there must be more than ‘conflicting inferences of equal degrees of probability so that the choice between them is [a] mere matter of conjecture’. An inference will be no more than conjecture unless some fact is found which positively suggests, or provides a reason in the circumstances particular to the case, that a specific event happened or a specific state of affairs existed.” [Emphasis added; footnotes omitted.]”

The Court also observed (at [87]) that, in drawing a fresh inference, it is only necessary to demonstrate that a competing inference is less likely, not that it is inherently improbable (footnotes omitted):

“The inherent unlikelihood of an occurrence of a given description is one consideration which must affect the answer to the question whether an issue has been proved to the reasonable satisfaction of the tribunal. Further, “[i]n establishing an inference of a greater degree of likelihood, it is only necessary to demonstrate that a competing inference is less likely, not that it is inherently improbable.”

Read the decision on the NSW Caselaw website.
Springfield v Ducombe [2017] NSWCA 137
16 June 2017 - Basten JA, Emmett AJA, Adamson J

In brief: The Court of Appeal considered the role of an appeal court in drawing its own inferences based on evidence at trial in proceedings below, in the context of an appeal by way of rehearing conducted under s 75A of the Supreme Court Act 1970 (NSW).

Basten JA (at [14]) rejected the approach recently adopted by the Victorian Court of Appeal, in Melbourne City Investments Pty Ltd v UGL Ltd [2017] VSCA 128 at [90], which, in effect, held that an appeal court should not generally interfere with findings of fact that amounted to inferences drawn from primary facts. 

His Honour held (at [17]) that the Victorian Court of Appeal had misapplied the High Court’s decision in Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22. Relevantly, in Robinson Helicopter, the High Court followed its previous statements in Warren v Coombes (1979) 142 CLR 531 and Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, namely that:

1) “In general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it”: Warren v Coombes at 551. 

2) “In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to’ its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.” Fox v Percy at [29]


Basten JA held (at [17]) that these statements apply strictly to “findings of primary fact and not inferences drawn from those facts.” Accordingly, his Honour stated (at [20]) that:

“To the extent that Melbourne City Investments suggests that challenges to inferential reasoning, or the characterisation of particular circumstances by reference to a legal standard, must be reviewed only on some constrained approach, inconsistent with Fox v Percy and Warren v Coombes, I would not understand Robinson Helicopter to support such an approach.”

Read the decision on the NSW Caselaw website.
Court of Appeal of Queensland
Woodforth v State of Queensland [2017] QCA 100
23 May 2017 - Holmes CJ and McMurdo JA and Bond J

In brief: The Queensland Court of Appeal overturned a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal, on the ground that the Appeal Tribunal had misconstrued the test for direct disability discrimination under s 10 of the Anti-Discrimination Act 1991 (QLD). In doing so, the Court held (at [57]) that the Appeal Tribunal had misunderstood the relevance of the High Court’s reasoning in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62 and erred in identifying the relevant comparator.

Section 10(1) of the Queensland Act states that:

“Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.”

Section 49B(1)(a) of the Anti-Discrimination Act 1977 (NSW) similarly provides:

“A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of disability if the perpetrator… on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability”.

The Court described the appellant (at [2]) as “a person with a severe hearing impairment… [with] limited capacity to communicate orally… and finds communicating in English to be stressful, confusing and of limited effectiveness.”

In the proceedings at first instance, Woodforth v State of Queensland [2014] QCAT 680, the Tribunal made references (at [63]-[66] and [73]) to a comparator that was “not hearing impaired, but had communication difficulties”. The Court of Appeal held (at [36]) that in doing so the Tribunal had used the wrong comparator, stating (at [57]): 


“The [appellant’s] case required a comparison between her treatment as a person with a hearing impairment and an inability to communicate effectively by conventional speech and a person without that impairment and that characteristic.”

In doing so, the Court applied (at [49]-[50]) the reasoning of the plurality (Gummow, Hayne and Heydon JJ, Callinan J agreeing) in Purvis (at [209] and [212]) in relation to the statutory construction of disability legislation. The plurality in Purvis held (at [212]) that:

“[T]o focus on the cause of behaviour, to the exclusion of the resulting behaviour, would confine the operation of the Act by excluding from consideration that attribute of the disabled person (here, disturbed behaviour) which makes that person ‘different’ in the eyes of others. Such a construction of the Act should be adopted only if its language requires it. Construction must proceed not only from a consideration of the grammatical structure of para (g) of the definition of disability, but also from a consideration of how the definition of disability is engaged in the other, operative, provisions of the Act.”

In Purvis, the plurality construed s4(g) of the Disability Discrimination Act 1992 (Cth) (Commonwealth Act), which defined “disability” as being limited to “a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour”.

Relevantly, under the Queensland legislation, s 8(a) and (b) extends the definition of disability to “a characteristic that a person with any of the attributes generally has” or “a characteristic that is often imputed to a person with any of the attributes”, respectively. Section 7(h) of the Act defines an “attribute” as including an “impairment”.

Under the NSW Act, s 4(e) defines disability in identical terms to the Commonwealth legislation. However, like s 8(a) and (b) of the QLD Act, s 49B(2) extends the meaning of disability, in respect of direct disability discrimination. Accordingly, for the purposes of s 49B(1)(a), “disability” includes “a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.” 


In the light of the differences between the Queensland and Commonwealth statutory regimes, the Court held (at [53]) that:

“… In the present case [the QLD Act] proscribed discrimination on the basis of the applicant’s inability to communicate by speech. That proscription would be ineffective if the characteristic of a disability was also to be treated as a “circumstance” in the comparison for the purposes of s 10. It would mean that there could not be direct discrimination on the basis of a characteristic of an impairment, because the comparator also would be a person with that characteristic. The Appeal Tribunal, whilst adverting to s 8, overlooked its effect upon the operation of s 10.”

Read the decision on the Austlii website.
Court of Appeal of Victoria
Di Benedetto v Kilton Grange Pty Ltd [2017] VSCA 119
25 May 2017 - Ferguson and McLeish JJA and Cameron AJA

In brief: The Victorian Court of Appeal observed (at [93]) that the giving of reasons for a judgment serves at least four purposes. These are:

1) 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
2) The giving of reasons enhances judicial accountability, both in the case itself and more widely.
3) 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.
4) Finally, reasons enable an appellate court to determine whether the decision was affected by appealable error.


This open list was drawn from the following cases: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 (McHugh JA); Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 441 (Meagher JA); and Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28, 35–6 at [18] (Chernov JA; Charles and Vincent JJA agreeing).

Read the decision on the Austlii website.
Supreme Court of New South Wales
Aquawest Pty Ltd v Twynham [2017] NSWSC 652
25 May 2017 - Lonergan J

In brief: The Supreme Court of New South Wales dismissed an appeal from the Local Court, holding that the appellant’s appeal grounds disclosed a mixed question of law and fact and thus did not satisfy the requirements of s39 of the Local Court Act 2007 (NSW). 

Section 39 of the Local Court Act provides that a party to proceedings before the General Division of the Local Court may appeal to the Supreme Court “but only on a question of law”. Relevantly, s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) similarly provides that an internal appeal may be made “as of right on any question of law”, or with the leave of the Appeal Panel on any other grounds.

Following the unanimous decision of a plurality of the High Court (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) in Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 at 394, the Court accepted that there is no universally applicable test for distinguishing questions of law and questions of fact. Nevertheless, the Court observed that the plurality (at 395) approved the following five general propositions, identified in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 290 at 289. These propositions were (footnotes omitted):

"1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.
2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact.
3. The meaning of a technical legal term is a question of law.
4. The effect or construction of a term whose meaning or interpretation is established is a question of law.
5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law."

In the present case, the Court was tasked with determining whether the construction of a contractual clause, in particular the expression “director/shareholder”, was a question of law or a question of fact. The Court observed (at [23]) that the expression “director/shareholder” is a composite phrase and that the forward slash may be construed as either conjunctive (“and”) or disjunctive (“or”), stating (at [24]) that:

“Director/shareholder” may mean:

(1) Director or shareholder – this is the construction put forward by the appellant.
(2) Director and shareholder.
(3) Director and/or shareholder.”


Accordingly, the Court held (at [25]-[26]) that the Magistrate’s analysis involved legal and factual questions and, subsequently, found that the appeal ground was a question of mixed fact and law. As such, the Court held (at [26]) that the appeal must fail as the appellant had not sought to leave to appeal.

Read the decision on the NSW Caselaw website.
The Owners-Strata Plan No 21372 v Banovic (No 2) [2017] NSWSC 734
7 June 2017 - Darke J

In brief: The Supreme Court transferred proceedings that had come before it under the Strata Schemes Management Act 1996 (NSW) (1996 Act), and proceedings relating to continuing conduct under the Strata Schemes Management Act 2015 (NSW) (2015 Act), to the Civil and Administrative Tribunal on the basis that the latter was the more appropriate forum. The proceedings under the 1996 Act were initially brought to the Court, due to concerns over the enforcement powers available to the Tribunal (at [4]). 

As a starting point, the Court observed (at [5]) that it could transfer the proceedings if the parties so agreed, or, as in the present case (at [8]), if the court, of its own motion or on the application of a party, so directs.

Furthermore, the Court noted (at [5]) that it had the power to order a transfer of proceedings under cl 6(2) of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), in circumstances where the proceedings relate to a matter for which the Tribunal had jurisdiction to exercise a Division function, observing (at [6]) that a Division function is defined in Sch 4 of the NCAT Act and includes functions dealing with applications made to the Tribunal under Part 12 of the 2015 Act. In the present case, the Court held (at [7]) that:

“[T]he proceedings relate to a matter for which the Tribunal has jurisdiction to exercise a Division function within the meaning of cl 6(2) of Schedule 4. The subject matter of the proceedings is a dispute concerning statutory rights and obligations under the 1996 Act and the 2015 Act.”

Having found that it had the power to transfer the proceedings, the Court held (at [11]) that the Tribunal was a more appropriate forum for the following reasons:

1) No party had suggested that it was appropriate for the Court to proceed to determine the plaintiff’s claims. The plaintiff accepted that it was appropriate to transfer the matter to the Tribunal. The first and second defendant submitted that the Tribunal was the appropriate venue for a dispute of this kind (at [9]);
2) It is generally desirable that disputes of this kind be determined in the Tribunal in accordance with the comprehensive dispute resolution regimes found in the successive Strata Schemes Management Acts (at [10]);
3) The matter had initially come before the Court as an application for contempt. This application was dismissed, in The Owners Strata Plan 21372 v Banovic [2017] NSWSC 177, due to the first defendant’s lack of fitness to face the charge (at [11]).


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