A discussion of the decision in Duffy Kennedy Pty Ltd v Galileo Miranda Nominee Pty Ltd [2020] NSWCA 25
“Without prejudice” communications in commercial settings
Often, when disputes arise in commercial matters of all descriptions, including complex construction disputes, the parties to the dispute will exchange correspondence or hold meetings said to be on a “without prejudice basis” as a means of encouraging discussion in an open setting.
However, for all commercial negotiations occurring prior to court proceedings being commenced, it is essential to remember that simply identifying a statement as being made without prejudice will not prevent that statement from being used in a contractual context, such as in the exercise of parties’ rights under the Contract.
What the Court has said
The NSW Court of Appeal in Duffy Kennedy Pty Ltd v Galileo Miranda Nominee Pty Ltd [2020] NSWCA 25 unanimously affirmed the decision of Parker J in Galileo Miranda Nominee Pty Ltd v Duffy Kennedy Pty Ltd [2019] NSWSC 1157.
In those proceedings, it was found that the principal to a construction contract properly issued both a show cause and take out notice on its contractor, after it was suggested that the contractor was in breach for failing to rectify several defects and for suspending the construction works without a reasonable basis.
Further, the Court of Appeal confirmed that the content of discussions held on a without prejudice basis between the parties could be considered when the parties were considering matters in the context of non-curial decision making according to their rights under the construction contract.
The decision has significant commercial implications for parties to all commercial agreements which purport to hold negotiations and other dispute resolution procedures in “without prejudice” settings before a matter has been filed with a court or tribunal.
Factual background
The subject matter of the dispute concerned a development comprising 97 residential apartments in the Sutherland Shire at Miranda. Galileo Miranda Nominee Pty Ltd (Galileo) was the principal, Duffy Kennedy, the contractor, and the contract price was a lump sum amount of $65,758,576 excluding GST (Contract).
On 19 March 2019, in accordance with a payment schedule submitted in response to a payment claim, the sum of $293,984.42 became payable to Duffy Kennedy. The payment was not made that day, with Galileo making payment via EFT on Friday, 22 March 2019. Duffy Kennedy did not receive the payment until the following Monday, 25 March 2019.
Further, the payment did not comprise interest accrued on the outstanding amount (pursuant to section 11 of the Building and Construction Industry (Security of Payment) Act 1999 (NSW) (Act)), which was in the sum of $177.20.
Following receipt of the payment, Duffy Kennedy issued two notices to Galileo, asserting its right to suspend works under section 16(2)(b) of the Act (along with a contractual right to suspend works, which was not later relied upon), for defaulting on the payment.
Neither notice referenced the failure to pay interest on the overdue amount.
On 28 March 2019, two days after issuing the notices, Duffy Kennedy gave notice that it was immediately suspending the works. This was followed by Galileo, through its Contract representative Resource Co-ordination Partnership Pty Ltd (RCP), issuing a show-cause notice on 29 March 2019.
The show-cause notice asserted that Duffy Kennedy had breached the Contract in several respects, being the failure to provide a fire penetration schedule, the inability to rectify balustrades installed contrary to code in several apartments, and ultimately had wrongfully suspended the works.
Under the Contract, RCP as the principal’s representative was conferred the power to issue any such notice.
In its response to the show-cause notice issued on 12 April 2019, Duffy Kennedy contended (amongst other things) that it had a statutory right to suspend the work until interest on the scheduled amount had been paid. That amount was subsequently paid on 15 April 2019 (though the works were never recommenced).
The parties held a meeting to attempt to resolve the dispute prior to the issuance of the response to the show-cause notice and a further meeting several days afterwards. It was agreed that these meetings were held on a without prejudice basis.
At the meeting following the response to the show-cause notice, Duffy Kennedy advised that it was not going to provide a fire penetration schedule in the form required by the certifying authority. It maintained that the balustrades were compliant with the building code and did not require rectification.
Ultimately, on 29 April 2019, Galileo gave a take out notice to Duffy Kennedy due to its failure to show reasonable cause by the date and time required and began taking steps to assign the remainder of the works to another contractor.
On 1 May 2019, Duffy Kennedy gave notice that it considered the take out notice to be repudiatory conduct, accepting that repudiation and electing to terminate.
Conversely, Galileo sought to affirm the Contract, thereby allowing it to retain the security provided by Duffy Kennedy, which would be used to offset the costs incurred in the take out process and finalisation of the works. Proceedings were ultimately commenced on this basis in order to compel Duffy Kennedy to comply with the Contract.
Issues considered
White JA delivered the head judgment, with Brereton JA and Barrett AJA agreeing. The following issues were considered and dealt with by the Court on appeal:
(a) Was Duffy Kennedy entitled to suspend works?
(i) The pillar of Duffy Kennedy’s suspension notice was the failure of Galileo to pay interest on the overdue scheduled amount. That is notwithstanding that interest was eventually settled, and the works never recommenced.
(ii) The Court held that the definition of “scheduled amount” does not include interest payable under section 11 of the Act unless that amount is included in a scheduled amount itself.
(iii) White JA provided some discussion as to the avenues available to a claimant to recover interest on any unpaid amount, such as in a subsequent payment claim or by way of registering an adjudication determination as a judgment.
(iv) However, the Court held that nothing within the Act (referring toss 15(1), 16(1) or 23(2)) provided for action to be taken pursuant to the non-payment of interest on a scheduled amount.
(v) Accordingly, Duffy Kennedy was shown to have invalidly suspended the works.
(b) Was the show cause notice validly issued?
(i) Duffy Kennedy contended that Galileo’s involvement in the issuance of the show cause notice was a breach of clause 24.1 of the Contract, which conferred such action exclusively on the principal’s representative.
(ii) The notice itself had been issued on Galileo’s letterhead, and Duffy Kennedy posited that RCP had merely signed off on it without proper and reasonable consideration of its content.
(iii) RPC and Galileo had contended that the decision making had been bilateral and that its contents had been adequately reviewed and deliberated.
(iv) The Court deferred to, and agreed with, the primary judge’s reasoning on the issue, who considered that although Galileo’s lawyers had drafted the notice, RCP had properly considered its contents and did consider that Duffy Kennedy was in breach in the resects identified.
(v) Indeed, the primary judge found that it was a reasonably open interpretation of the facts that Duffy Kennedy’s suspension of the works and its failure to comply with the requirements of the certifying authority regarding the fire penetration schedule would constitute a breach of Contract.
(vi) Upon review of the material read at first instance and consideration of the content of cross-examination of RCP’s directors, White JA upheld the primary judge’s conclusion that the relevant directors of RCP had formed the view that Duffy Kennedy was in breach.
(vii) In any event, evidence led in the proceedings confirmed that RCP was involved with the drafting of the notice. Further, the Court at [96] noted that there was “nothing in clause 24.1 and 24.2 to indicate that the Principal’s Representative cannot have regard to the views of the Principal in deciding whether to issue a notice to show cause under clause 24.1“.
(viii) The Court also considered that this relationship should go both ways and that it would be “an unbusinesslike construction” to say that a principal should have no discretion as to whether its representative issues a contractual notice on its behalf (at [100]).
(ix) In this regard, the Court’s finding reflects the realities of the commercial dynamics of construction contracts involving multiple parties and a timely reminder that parties to these contracts should be aware of their right to issue certain contractual notices.
(c) Could the parties rely on the content of without prejudice meetings in a commercial context?
(i) Ground 4 of Duffy Kennedy’s notice of appeal raised the question of whether RCP was entitled to consider the content of conversations that took place at meetings held without prejudice in determining whether the issuance of the take-out notice was valid.
(ii) At first instance, Duffy Kennedy alleged that RCP had not made its own judgement after receipt of the response to the show-cause notice but did so based on statements made by Duffy Kennedy’s representative at one or more of the without prejudice meetings held around the time it was received.
(iii) The effect of those meetings was that Duffy Kennedy had made it clear that they did not intend to increase the height of the balustrades or to provide a fire penetration schedule as required by the certifying authority.
(iv) Having considered the evidence of RCP’s representatives at first instance, the primary judge was satisfied that RCP had come to the view that Duffy Kennedy was in breach of the facts available and had failed to show cause.
(v) However, and critically, the Court found at [152] that “the fact that RCP’s view was informed by statements made by Mr Pratt [of Duffy Kennedy] at a meeting held on a without prejudice basis was irrelevant when it came to considering the validity of action taken in reliance or partial reliance on what was said at that meeting for contractual purposes“.
(vi) Counsel for Duffy Kennedy raised the issue of the use of these without prejudice discussions, not in respect of any evidence adduced in the proceedings, but concerning the parties’ consideration in issuing the take out notice.
(vii) The Court quoted the primary judge at [165], who stated that [at 250-1]:
“Although reference was made to provisions of the Evidence Act 1995 (NSW), s 131, that provision applies only in curial proceedings: s 4. It does not apply to a non-curial procedure such as that under cI 24.2. Counsel’s argument must therefore be that for RCP to rely upon something said in a without prejudice meeting in some way fell foul of the common law rules concerning privilege over without prejudice communications.
But in my view, the fact that the meeting was conducted on a without prejudice basis is irrelevant when it comes to considering the validity of action taken in reliance, or partial reliance, on what was said at that meeting for contractual purposes. Although without prejudice privilege has been recognised for a long time in the common law but is now enshrined in the Evidence Act, it has not been recognised as a substantive legal right in the same sense.
The rule that without prejudice, communications are privileged is simply a rule of evidence. It applies only in curial proceedings to prevent the admission of evidence, and even in such proceedings, it only applies when an objection is made”.
(viii) Although Duffy Kennedy cited several authorities in support of the proposition that RCP was not entitled to take into account the content of the without prejudice meetings, the Court simply found they did not assist its position whatsoever.
(ix) Discussion briefly turned to the public policy consideration in allowing correspondence marked the full form of the statement, being “without prejudice save as to costs“, following the decision in Calderbank v Calderbank, which protects negotiations from disclosure in an evidentiary sense whilst liability was still in issue.
(x) Citing [at 173] the majority of the High Court in Field v Commissioner for Railways for NSW (1957 99 CLR 285 at [291], the Court commented that:
The purpose of the evolution of the law in this regard was to enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence might subsequently impose upon them.
(xi) The Court’s view was simply that without prejudice, discussions are not protected by any notion of privilege in commercial settings. White JA commented at [175] that “it has never been suggested so far as I am aware that the privilege is based upon an implied agreement that if the negotiations do not result in an agreement for settlement of the dispute, the parties will make no use of what has been disclosed by the other party in the negotiations“.
Key takeaways
This decision makes it clear that in practical terms, for all commercial negotiations occurring prior to court proceedings having been commenced, it is essential to remember that simply identifying a statement as being made “without prejudice” will not affect that statement being used to enforce contractual remedies.
Some practical examples of where this might happen include:
(a) Where an entitlement to an EOT under a contract is in dispute between the parties; or
(b) In a leasing matter, where a tenant discloses they are not paying their rent for a specific purpose, a landlord using that purpose to exercise their power under the lease (to, for example, evict the tenant).
The decision also highlights the importance of ensuring action under the Security of Payment Act is taken only concerning scheduled amounts – enforcing rights to suspend work purely on unpaid interest that has not been scheduled will not be sufficient and may be a breach of Contract.
We’re here to help
Disputes between parties to a construction contract are often complex and traverse various areas of law. Should you or your business require advice to navigate these complicated issues, don’t hesitate to contact our construction law team for a consultation.
NSW Supreme Court considers lump sum costs orders in recent decision – Eliezer v The Council of St Andrew’s Cathedral School (No 2) [2021] NSWCA 227
Key facts
We recently covered circumstances whereby NSW courts will consider making a gross sum costs order in lieu of a traditional costs order made on an ordinary basis.
The Supreme Court recently turned its mind to these issues in the matter of Eliezer v The Council of St Andrew’s Cathedral School (No 2) [2021] NSWCA 227.
The proceedings were commenced using amended summons, which was dismissed with costs on 3 August 2021.
The day before the hearing of the matter, the first respondent, The Council of St Andrew’s Cathedral School (the School), filed two documents, one being “Written Submissions in Relation to Costs” and a supporting affidavit sworn by its instructing solicitor. The submissions included the following:
This submission is done in the event that the [School] is successful against the Applicant[s] at the hearing on 9 July 2021 both on the Applicants’ Notice of Motion filed 5 July 2021 and on their summons for review of decision under s 69 of the Supreme Court Act 1970 (NSW), in order that the Court may consider awarding a lump sum cost order in favour of the [School] pursuant to section 98(4) of the Civil Procedure Act 2005 (NSW).
The affidavit provided for an estimate of the costs that would be incurred at the hearing of the application, a deducted 20% from that figure, as the gross sum sought for costs.
Following the dismissal of the amended summons, the applicant was directed to serve submissions as to the gross sum costs order sought.
Those submissions referred to the observations of Leeming LA in Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4)[1], to the effect that an application for a gross sum costs order could only be made when seeking to vary or set aside an existing costs order (and could not be a new order in and of itself).
Further, the applicant submitted that any application determined under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) could not be entertained unless made by way of motion filed within 14 days of the costs order being made.
The School filed a motion in response seeking orders under rule 36.16 of the UCPR that the order made on 3 August 2021 be varied by adding an additional order concerning the gross sum costs order; however, that motion was found to be “inapt”, noting that particular rule is to vary a judgment or order and not “reasons for judgment” [at 14].
The Court declined to make a determination on the point of whether an application for a gross sum costs order represents an application to set aside or vary an original costs order, so as to enliven UCPR r 36.16 [at 17], noting that the matter can be determined without resolving the differences in the various authorities (citing Riva and Livers v Legal Services Commissioner (No 2)[2]).
Proceeding on the assumption that the School’s application could be dealt with under UCPR r 36.16(3A), the Court invoked its authority to dispense with the requirement that the application for a gross sum costs order is made by way of motion in the appropriate timeframe (as is required by r18.1 of the UCPR) pursuant to s14 of the Civil Procedure Act 2005 (NSW) (CPA), noting that:
(a) The application for a gross sum costs order had been notified informally within the 14 day period (citing Aukuso v Tahan (No 2) [2018] NSWCA 302 at [45] (Simpson AJA; Macfarlan JA agreeing); and
(b) It was appropriate to do so for the purpose of s14 of the CPA.
The substance of the School’s application was otherwise accepted by the Court, applying the “broad brush approach” that is called for in considering gross sum cost order applications (citing Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294 at [14]).
The School’s solicitors had provided a detailed and itemised estimate of their anticipated costs of resisting the amended summons, including counsel’s projected fees, and sought a 20% discount as the basis for the lump sum.
The Court considered this reasonable in all of the circumstances, noting at [26-27] that the Court can have “confidence in arriving at an appropriate sum on the materials available”, and considering the “degree of any disproportion between the issue litigated and the costs claimed” (citing Hamod v State of New South Wales [2011] NSWCA 375 at [813-816]).
Key takeaways
The case confirms that the Court will consider invoking its power under s98(4)(c) of the CPA when dealing with an application for a gross sum costs order when an order for costs has previously been made, as long as that application has been foreshadowed and a satisfactory estimate and explanation provided.
We’re here to help
Should you require further information about how costs can be recoverable in litigation conducted within NSW, please do not hesitate to contact our office for a consultation with our talented lawyers who are experts in construction law.
[1] [2018] NSWCA 327.
[2] [2021] NSWCA 164 at [5] to [7].
In the matter of BB6 v State of New South Wales [2021] NSWSC 1516 the plaintiff filed proceedings in which she made a number of broad allegations of brutal sexual, physical and verbal abuse against her parents for which she said the State of New South Wales (the State) is responsible. She also alleges that the State (and another) was responsible for acts of violence against the her whilst she was a resident of two separate institutions.
The plaintiff alleged that the State failed to intervene and protect her from physical, sexual, and emotional abuse:
This matter came before the NSW Supreme Court because the plaintiff wanted to amend her claim to include another party who she said was responsible for care. When she originally commenced her claim, she had named the wrong party and then sought leave to include another party. Her application to make those amendments was refused by the Court because the proposed pleadings lacked detail and specificity, such that any defendant would have difficulty understanding the case against it.
His Honour pointed out the following deficiencies:
His Honour then concluded that the deficiencies in the plaintiff’s proposed amended claim did not meet the threshold of proper pleading principles or pleadings, so leave was refused. This meant that the plaintiff’s application to file a claim against the proposed third party was refused because the plaintiff failed to properly plead the case by having general facts and relying upon general risks of harm.
His Honour ordered that leave be refused to file the Amended Statement of Claim, the application dismissed and the plaintiff pay the defendants costs of the application.
In summary, it is the plaintiff’s obligation to properly and adequately plead her claim against the correct defendant/defendants. In doing so, she must carefully, and with precision, say how each of those defendants owed her a duty of care, the specific failure(s) to take precautions against the risk of the harm that she suffered, and that as a result of those failures, she suffered injury, loss and damage.
Pleading cases involving historic sexual abuse is technical and challenging. This is usually because the actual perpetrators are often not sued directly and the pleader seeks to allege that another (entity or otherwise) is responsible for the actual perpetrator’s actions, as was the case here. The plaintiff in this case was trying to establish that the State of New South Wales and another are responsible in negligence for breach of a duty owed to the plaintiff, or else vicariously for the conduct of their employees, officers or associates. As well, the defendants are sought to be made liable in negligence for the conduct of a visitor to the premises, or other residents of the premises.
Chamberlains Legal Directors Jon May and Alison McNamara are experts in personal injury law, with a particular focus on cases involving historic sexual abuse. If you or someone you know has suffered abuse, we urge you to contact us immediately for advice. We can offer you your first consultation for free. If we think your claim has merit, we can act for you on a No Win, No Fee Basis.
Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296
The NSW Court of Appeal was called on to decide an appeal by Top Hut Banoon Pastoral Co Pty Ltd (Top Hut) after a judge in the District Court to New South Wales awarded Ms Walker $992,866.34 in damages arising from injuries Ms Walker sustained on premises occupied by Top Hut.
Top Hut admitted that it was liable for Ms Walker’s injuries, but also sought to argue that her employer, Shear Away should share liability. Top Hut also argued that the primary judge’s assessment of damages was too high and did not take into account medical evidence relied on at the hearing by Top Hut.
Top Hut’s appeal was rejected by the NSW Court of Appeal on all grounds.
Ms Walker was employed as a shearer’s cook by Shear Away. She was injured when she fell off a step when entering an accommodation hut on the premises. Ms Walker sued Top Hut as the occupier of the premises but chose not to sue her employer Shear Away. Top Hut brought a cross-claim against Shear Away and contended that, as Ms Walker’s employer, Shear Away had failed to take proper care for Ms Walker’s safety by not carrying out a sufficiently careful safety assessment of the premises.
In dismissing Top Hut’s appeal, the NSW Court of Appeal said that had the employer, Top Shear, performed a sufficient inspection of the accommodation, that inspection would not have revealed the defect anyway as there had been no prior problems with the accommodation and the accommodation itself was rarely used.
It is a well-accepted principle that an employer has a non-delegable duty of care to keep its employee safe. However, as pointed out in this case “an employer’s duty is not an absolute duty to keep an employee free from injury, but a duty of reasonable care.” In this case, the employer was found to have done all that was reasonable in the circumstances to keep Ms Walker safe, in so far as the accident giving rise to her injuries was concerned.
Top Hut’s appeal was not limited to the question of the employer’s negligence. It also challenged the decision of the primary judge as to the award of damages. Top Hut’s appeal failed and the original award of damages was upheld.
It is often the case that multiple parties may be responsible for a person’s injuries. If you have suffered an injury at work and it appears that multiple parties ought to be held responsible, you should seek legal advice. In this case, Ms Walker could have sued her employer also but, presumably for a number of reasons, she chose to sue Top Hut only.
If you are facing a similar decision, you should contact us for advice. We are experts in personal injury law and are happy to provide your initial consultation for free. If we think your claim has merit, we can act for you on a No Win, No Fee basis.
On 3 December 2021, the Fair Work Commission handed down its very first decision on employers mandating the COVID-19 vaccination ruling against the employer in finding that the deadlines for vaccination were not lawful and reasonable.[1]
The decision is considered a seminal decision as it has the potential to be influential in terms of vaccine mandates in the workplace.
However, whilst the decision is a significant one, the decision did not focus or rule on the “validity” of the vaccine mandate. Rather, the focus surrounded the failure of the employer to comply with its consultation obligations under work health and safety laws.
Background
On 7 October 2021, Mt Arthur Pty Ltd issued a direction requiring all workers to have the COVID-19 vaccine as a condition of entry to the Mt Arthur mine. The direction specified that all employees must have at least one dose of the vaccine before attending work on 10 November 2021 and be fully vaccinated by 31 January 2022.
Following this direction, on 10 November 2021 approximately 50 of the 1,700 employees working at the Mr Arthur mine were stood down as they could not provide evidence of their vaccination status.
Facts in issue
The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) argued that the direction was unlawful and unreasonable as the employer did not comply with consultation requirements under the Work Health and Safety Act 2011 (NSW) in respect of employees covered by the Mt Arthur Coal Enterprise Agreement 2019.
In reply, Mt Arthur Pty Ltd argued that the direction was lawful and reasonable as it was required to comply with safety requirements under the Work Health and Safety (Mines And Petroleum Sites) Act 2013 (NSW) and the Work Health and Safety Act 2011 (NSW) to ensure the community and family members associated with the workforce were protected.
Decision and Commentary Provided by the Commission
On 3 December 2021, the Commission ruled that the direction was not one which was covered by the Mt Arthur Coal Enterprise Agreement 2019 and the full bench agreed that Mt Arthur Pty Ltd had failed to consult with its employees on the introduction of the vaccination mandate.
In handing down the judgment, the Commission affirmed two general principles:
The Commission noted that it was not appropriate to make general statements about whether a direction to be vaccinated would be lawful or reasonable as it would depend on the circumstances, however, the Commission provided several broad observations, including:
Ultimately, the Commission did state that if Mt Arthur Pty Ltd had consulted with its employees and fulfilled its consultation obligations to the extent that the Commission could have been satisfied that the mandate was the outcome of a meaningful consultation process, there would have been a strong case in favour of Mt Arthur Pty Ltd to conclude that the direction was reasonable.
As such, the decision leaves it open for Mt Arthur Pty Ltd to undergo an adequate consultation process to reintroduce the policy which could then be considered lawful and reasonable.
[1] Construction, Forestry, Maritime, Mining and Energy Union (105N) & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6039.
Contact the Workplace Law Team at Chamberlains Law Firm for any questions and concerns.
A reminder about the rule in Millar v Candy [1981] FCA 239.
Facts
The respondent was in possession of a car under a hire purchase agreement with Lombard Australia Ltd when a collision occurred and the car was damaged beyond repair, due to the appellant’s negligence. The appellant paid the respondent in the amount of $4,800, being the market value of the car prior to the accident. Pursuant to the hire purchase agreement, the respondent was liable to pay Lombard Australia Ltd in the amount of $6,504, being the market value of the car as well as $1,704 for the early termination of the agreement. The respondent commenced action to recover the additional $1,704 from the appellant, as well as $200 in damages for loss of use and enjoyment of the car.
This case was first heard in the Supreme Court of the Australian Capital Territory, where the trial judge found in favour of the respondent. It was held that the $1,704 became payable to Lombard by the respondent due to the negligent actions of the appellant, and that the appellant ought to have foreseen this damage because of how common hire purchase agreements are.
Issues
The Federal Court of Australia heard the appeal and considered the following issues:
Judgment
The Federal Court of Australia upheld the appeal, deciding 2:1 that the respondent should be awarded $200 and not the $1,704 in damages.
With respect to the first and second issues, Franki J (dissenting) considered the case of Caltex Oil (Aust) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 (“Willemstad“), deciding that damages beyond the value of the property will only be awarded where there is a “special relationship” which provides for a duty of care between the parties. Franki J held that there was a special relationship between the parties, as the appellant worked with the respondent and knew he was paying off his car. Blackburn J disagreed with this conclusion, deciding that there was no special relationship or duty of care existing between the parties as the appellant could not have known the identity of the car at the time of the collision.
I cannot believe that the law requires that the reasonable man driving a motor vehicle on the highway has a duty to keep a sharp lookout for those vehicles, and those persons, which are the subject of hire-purchase agreements about which he has previously had some information. Blackburn J at page 302-3.
McGregor J was of the view that the $1,704 owed by the respondent to the hire purchase company was not damages resulting from the negligent act of the appellant, rather it was “a discounted substituted version of what he expected and had undertaken to pay anyway” under the hire purchase agreement.
With respect to the third issue, the Court unanimously agreed that damages of $200 for loss of use was recoverable and the appellant was liable for this amount.
Impact of Decision
This decision reaffirmed that damages for loss of a non-profit earning chattel are recoverable.
More significantly, this decision illustrated that parties subject to a hire purchase contract are unable to recover damages for costs associated with early termination of the agreement as a result of damage to the property, unless you can prove a special relationship and duty of care exists.
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A Binding Child Support Agreement (BCSA) is a written agreement between parents about child support payments.
It is a legally binding document requiring both parties to obtain independent legal advice as both parents must sign and agree to the terms.
It is regulated under the Child Support (Assessment) Act 1989 but may also affect some provisions under the Family Law Act 1975.
Section 80C of the Child Support (Assessment) Act states that the agreement is binding on the parties provided:
Section 80CA of the same Act states that a BCSA cannot be varied. It can only be terminated and replaced with a new BCSA. A BCSA can only be terminated by:
It is important to note that BCSA are governed by a different area of law and do not operate the same way as parenting plans, consent orders or any other such agreement that may concern parenting but not child support.
The amounts in which child support is paid can be assessed by Services Australia who can assist parties in assessing, collecting, and transferring child support payments.
There are certain rules that govern a party’s eligibility to apply for and receive child support payments and a formula on how they assess how much child support should be paid and by who.
The amount can also be agreed between the parties without assessment by Services Australia.
Chamberlains Law Firm can assist you with the legal questions anything about Family Law. Contact us!
Anshun estoppel is a principle arising from a decision of the High Court of Australia: Port of Melbourne Authority v Anshun 147 CLR 589.
In that case, the Court made clear that a party can be prevented from bringing a claim in fresh proceedings which should have been brought in the original proceedings.
The test is one of reasonableness; was it unreasonable that a party did not raise claims in the initial proceedings? If so, the party will be barred from bringing that claim.
In Amery & Kedrina, the Wife sought to set aside consent orders pursuant to Section 79A(1)(a) of the Family Law Act. The Wife had previously sought an application under Section 79A(1)(c) to set aside those orders. The Court made orders permanently staying proceedings. The Wife brought an Appeal in the Full Court of the Family Court of Australia against that Order.
The consent orders were entered into in 2005 and saw the Wife receive assets and entitlements of around $31.24 million and the husband to receive assets and entitlements of approximately $38.18 million. Both the Wife and Husband had legal representation.
In 2017, the Wife brought proceedings under Section 79A(1)(c) for the Consent Orders to recover an amount of dividends and distributions from the husband, which she stated should have been paid to her. Crucially, the 2005 consent orders were silent on the issue of payment of dividends and distributions.
Section 79A(1)(c) requires the Court to be satisfied that:
“a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order…. the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.”
The parties then entered consent orders for the payment of $455,151.73 to the Wife for these unpaid dividends and disbursements. In the 2017 consent orders, the parties did not seek to set aside the 2005 orders.
In January 2018, the Wife brought new proceedings under Section 79A(1)(a) for the 2005 Consent Orders to be set aside.
Section 79A(1)(a) requires the Court to be satisfied that:
“there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance.”
Then in June 2018, the Wife filed an amended Initiating Application seeking the payment of $5 million within 30 days of the Orders and an additional $50 million within six months. The husband sought Orders that her Application be permanently stayed on the following bases:
The trial judge summarised the Wife’s evidence; The Wife made assertions that after the 2017 proceedings were commenced, she became suspicious of the husband’s “candour” and “honesty”, which caused her to investigate the circumstances surrounding the 2005 consent orders. The Wife then alleged the sale price of some shares in the 2005 consent orders was understated at the time.
The trial judge summarised the husband’s submission:
“Any application by the wife seeking to impugn the original s 79 consent orders should have been properly bought in the context of her subsequent application to enforce the very same orders as it was fundamental to that part of the 2017 orders which enforced the 2005 [consent] orders that the latter were valid and enforceable.”
The trial judge found in favour of the husband, agreeing with the husband that the Wife had obtained damages and compensation for shares and units as sought by her and:
“the wife, it is correctly submitted, now seeks a second round of relief under s 79A of the Act.”
The Wife then brought an appeal on the following grounds:
Concerning Ground 5, the Court held there was no force in the Wife’s argument as it conflated the nature of the orders sought and the outcome achieved.
The Court made clear that:
“the question of whether two proceedings are ‘connected’ or ‘so relevant’ to one another, that it would be unreasonable not to have raised the point now sought to be agitated in the first proceedings, is determined by having regard to the substantial equivalence of rights and subject matter of the actions, not the outcome achieved or the orders sought.”
In relation to Grounds 1 and 2: For these grounds to succeed, the Wife would need to show that had the trial judge accepted the Wife’s explanation for her delay, he would not have permanently stayed the 2018 proceedings. The Full Court of the Family Court disagreed.
In relation to Ground 4: The Court stated that this ground misunderstood the relevant legal principles. The Court cited Zetta Jet Pte Ltd v The Ship Dragon Pearl (No 2)[1] :
“It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet, its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.”
As held by the Full Court of the Federal Court of Australia in the case of Wong v Minister for Immigration and Multicultural and Indigenous Affairs[2], there are some instances where even where a matter should have been raised earlier but was not, there are special circumstances which permit them raising that issue in a subsequent proceeding. The Court has discretion in this regard; however, the circumstances must be exceptional.
The test for precluding the Wife’s claim under s79(1)(a):
Therefore, if the Wife could have discovered the issue she was now agitating when she first brought her application in June 2017, she would be estopped from bringing this claim.
The Full Court of the Family Court referred to the trial judge’s finding that if the Wife were allowed to continue her proposed application, this would give rise to a possibility of contradictory judgments.
As held in Anshun, if a successive action would result in a judgment that contradicts or is in conflict with the original action, then the successive action will be estopped.
The Wife was unsuccessful in her appeal.
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[1] [2018] FCAFC 132; (2018) 265 FCR 290 at [20].
[2] [2004] FCAFC 242; (2004) 146 FCR 10 at 38.
In 2019 an important amendment was made to the Family Law Act, which prohibits personal cross-examination by a party where there are allegations of family violence.
This section prevents victims of domestic violence from being cross-examined directly by the perpetrator of domestic violence and vice versa. Personal examination means this provision applies to self-represented litigants.
This section aims to minimise victims of family violence being exposed to further abuse. An additional policy consideration behind the introduction of this section is to minimise the risk of proceedings being undermined.
Parties who are banned from direct cross-examination are nonetheless afforded procedural fairness as they are given the opportunity to appoint a lawyer.
The Commonwealth government has established a scheme called the Family Violence and Cross-Examination of Parties Scheme (the Scheme) to assist parties who cannot afford to pay a private lawyer.
Both parties legally represented
The section does not apply where allegations of family violence are made, but both parties are legally represented because the cross-examination will be undertaken by the legal representatives and not the parties.
One or both parties not legally represented
An unrepresented party will be banned from cross-examining the other if:
If any of these criteria are satisfied, the cross-examination must be done by a legal representative. The Court can direct the self-represented party to hire a lawyer if they have the means to pay for one or direct them to apply for a Legal Aid lawyer through the Scheme.
Even where one of the above criteria do not apply, for example, where the allegations are historical, the Court nonetheless has the discretion to ban the personal cross-examination. If a Judge makes such an Order, then the same principles apply. The party can appoint a private lawyer or apply for a Legal Aid lawyer through the Scheme.
Costs of an Independent Children’s Lawyer
Often an Order is made in family law litigation where an Independent Children’s Lawyer (“ICL”) has been appointed, that each party pay half of the costs of the ICL each. The Court has the power to make orders as to costs and security for costs under Section 117(2).
However, section 117(4) of the Family Law Act states where an Independent Children’s Lawyer has been appointed, and a party has received Legal Aid, or the Court considers they would suffer financial hardship if they had to pay for the costs of an Independent Children’s Lawyer, the Court must not make an order for costs or security for costs.
It has been made clear in the recent case of legal Aid v Westwell [2021] FamCAFC 50 that where a party is appointed a lawyer through the Scheme, they are nonetheless required to pay for their share of costs for the Independent Children’s Lawyer.
The Full Court states that “the reference to “legal aid” in subsection 4 does not include a reference to the provision of funding of a lawyer under Section 102NA where that funding is from a legal aid body.”
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In Denham & Newsham[1] an appeal was made against parenting orders permitting the mother, a Belgian citizen, to relocate with the parties’ 3-year-old son to Belgium in March 2022 and for the father to spend time with the child in Belgium and Australia.
Those Orders were made at a Final Hearing in February 2020. The father was permitted to adduce evidence regarding the impact of the Covid-19 pandemic on the ability to travel between Belgium and Australia to spend time with the child. The proceedings were remitted for rehearing before another judge.
February 2020 Hearing
At the time of the final hearing, the child was living with the mother and enjoyed good relationships with both of his parents. It was undisputed that the child would live with the mother, whether or not that was in Belgium or Australia. The mother had applied for permanent residency in Australia and was confident she would be successful.
Therefore, the trial judge was required to determine whether it was in the child’s best interests to leave Australia and relocate to Belgium with the mother, where he would have to re-establish his permanent residence. The Judge was satisfied that if the mother relocated to Belgium with the child, the child would maintain a meaningful relationship with the father provided the child spent time with the father as proposed (three times a year in Belgium and once per year in Australia over the Summer holidays).
The Appeal
The father appealed all of the February 2020 orders, which he later conceded was overstating his claim. He pressed the appeal of the orders permitting relocation, and for the time the child lives in Australia, the time the child spends with him. The father then filed an Application in an Appeal seeking to adduce further evidence regarding the Covid-19 pandemic and restrictions on international travel.
The Court has the discretion to receive evidence on appeal regarding questions of fact under 93A(2) of the Family Law Act. The test for whether the evidence should be admitted, as propounded in CDJ v VAJ (1998) 197 CLR 172 is:
The Family Court of Australia allowed the father’s evidence to be admitted. The Court stated that at the time of the hearing, “the Covid-19 pandemic had not commenced, and no one contemplated the health disaster that would unfold. There was no restriction on Australian citizens’ ability to travel freely between Australia and, relevantly, Belgium. Both these countries’ borders were open, and the trial proceeded on the understanding that the parties and child would be able to move freely between them.”
The Court highlighted that the Order permitting relocation was contingent on the finding that the father could spend time with the child at least three times per year. Because the pandemic post-dated the trial, clearly, pandemic related impediments to travel did not feature in consideration of the logistics of the child spending time with the father.
The Court confirmed that the evidence the father adduced relating to travel restrictions and related expenses made it clear that a new trial should be ordered and that course was in the child’s best interests.
At first instance, evidence was adduced from a single expert psychologist, which concluded that the child could not sustain significant separations from his father. The expert gave no evidence that the child could develop the capacity to sustain substantial periods of contact if he had two years of contact with his father in Australia.
The expert’s evidence was that “relocation should not be considered before the child is eight or nine years of age.” This was crucial to the question of whether the mother should be permitted to relocate with the child in light of the global restrictions on travel as a result of Covid-19. Documents from the Australian Department of Home Affairs were available in the appeal and made clear that the regular air travel should not be assumed and that flights had been reduced. If this evidence were placed before the Judge, it would compel a finding that “the mother’s proposals for the child’s time with the father could not be assured” and “predictions for face-to-face contact between the child and the father … would be no more than speculation.”
If the child moved to Belgium in 2022, it could not be said that the child and father could maintain a meaningful relationship.
[1] [2021] FamCAFC 141
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