High Court of Australia Judgment Summary Notes

Ainsworth v Albrecht [2016] HCA 40 (12 October 2016)

Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland. The High Court held that opposition to a motion which was required to be passed by a body corporate without dissent was not unreasonable in circumstances where the proposal in question was apt to create a reasonable apprehension that it would affect adversely the interests of opponents of the proposal.

The Body Corporate and Community Management Act 1997 (Q) (“the BCCM Act”) regulates the determination of disputes between the owners of lots in a community titles scheme. Here the dispute concerned a proposal for the alteration of the rights of lot owners in the scheme by an owner who sought exclusive use of part of the common property airspace in order to amalgamate the two balconies forming part of his lot so as to create one larger deck. Under the BCCM Act, approval of the proposal required a resolution without dissent of the Body Corporate. The motion was defeated. Item 10 of Sched 5 to the BCCM Act makes provision for an adjudicator to order that a proposal, otherwise required to be passed without dissent, be approved notwithstanding dissent by a lot owner if the opposition to the proposal was unreasonable in the circumstances.

The adjudicator accepted that individual lot owners voted against the motion in good faith, and in genuine reliance on architectural and other advice, but nevertheless considered that their opposition to the proposal was unreasonable. An order was made deeming the motion supporting the proposal to be passed.

The appellants appealed to the Queensland Civil and Administrative Tribunal, which concluded that the adjudicator had impermissibly substituted her own opinion as to the reasonableness of the proposal, rather than focussing on whether the opponents’ grounds of opposition were reasonably held. The adjudicator’s orders were set aside. The first respondent appealed to the Court of Appeal, which held that the adjudicator did not adopt the wrong approach in resolving the dispute. The decision of the adjudicator was upheld.

By grant of special leave, the appellants appealed to the High Court. The Court held that the adjudicator had adopted the wrong approach in resolving the dispute. The adjudicator’s task under Item 10 of Sched 5 to the BCCM Act is not to determine whether the outcome of the vote of the general meeting of the Body Corporate achieved a reasonable balancing of competing considerations, but whether the opposition to the proposal was unreasonable. The Court further held that a lot owner may not be regarded as acting unreasonably in declining to assist another lot owner gratuitously to enhance that lot owner’s interest, where the enhancement of that interest is reasonably viewed as adverse to the interests of the other lot owner. In the result, the Tribunal’s decision to set aside the adjudicator’s orders was reinstated.

Cunningham & Ors v Commonwealth of Australia & Anor [2016] HCA 39

Today the High Court unanimously held that amendments to the Parliamentary Contributory Superannuation Act 1948 (Cth) (“the Superannuation Act”) and the Remuneration Tribunal Act 1973 (Cth) (“the Remuneration Tribunal Act”) and certain Determinations made by the Remuneration Tribunal did not constitute an acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution. The Court further held, by majority, that the enactment of and subsequent amendment to the Members of Parliament (Life Gold Pass) Act 2002 (Cth) (“the Life Gold Pass Act”) also did not constitute an acquisition of property otherwise than on just terms.

The Superannuation Act provides for the payment of certain “retiring allowances” to retired members of Parliament. Prior to 2011, the method of calculating retiring allowances was by reference to a fixed percentage of the parliamentary allowance for the time being payable to members of Parliament. Another benefit historically provided to retired members of Parliament was the “Life Gold Pass”, which provided for domestic travel at Commonwealth expense. In 1976, the relevant Minister requested the Remuneration Tribunal enquire into the matter of the Life Gold Pass. Since that time, the Remuneration Tribunal has altered the benefits conferred by the Life Gold Pass a number of times.

Each of the four plaintiffs served as a member of the House of Representatives of the Commonwealth Parliament for not less than eight years between 1969 and 2001. Three of the plaintiffs also held parliamentary offices and two were Ministers of State. On ceasing to serve as a member of Parliament, each of the plaintiffs became entitled to various retiring allowances under the Superannuation Act. Two of the plaintiffs were also entitled to a Life Gold Pass.

In 2011 and 2012, amendments were made to the Superannuation Act and the Remuneration Tribunal Act, which enabled the Remuneration Tribunal to determine that a proportion of the amount paid to current members of Parliament would be excluded from the amount of “parliamentary allowance” for the purposes of calculating the retiring allowances (“retiring allowance amendments”), and the Remuneration Tribunal subsequently did so (“the Determinations”). In 2002 the Life Gold Pass Act was enacted, which restricted a holder of a Life Gold Pass, other than a former Prime Minister, to 25 domestic return trips per annum, and an amendment in 2012 reduced the number of trips to 10 per annum.

The parties stated a special case and questions of law arising for the opinion of the Full Court. The questions of law included whether the retiring allowance amendments, the Determinations, and the enactment of and amendment to the Life Gold Pass Act, constitute or authorise an acquisition of property otherwise than on just terms, within the meaning of s 51(xxxi) of the Constitution.

The High Court unanimously held that the retiring allowance amendments were not laws with respect to the acquisition of property, nor did the Determinations constitute an acquisition of property. A majority of the Court held that the entitlements to retiring allowances were inherently liable to variation, because the rights stipulated in the Superannuation Act depended for their content upon the will of the Parliament as exercised from time to time. As such, the variation effected by the amendments and the Determinations could not properly be described as an acquisition of property. The High Court further held, by a majority, that the Life Gold Pass Act and its subsequent amendment were similarly not laws with respect to the acquisition of property.

Lyons v State of Queensland [2016] HCA 38

Today the High Court dismissed an appeal from the Court of Appeal of the Supreme Court of Queensland. The High Court held that the Court of Appeal did not err in holding that the appellant was not discriminated against when she was excluded from jury service.

The appellant is profoundly deaf. She was summoned for jury service by the Deputy Registrar of the Ipswich District Court (“Deputy Registrar”). She contacted the Ipswich Courthouse advising that she would require the services of two Australian Sign Language (“Auslan”) interpreters. The Deputy Registrar responded that there was no provision under the Jury Act 1995 (Q) to administer an oath to an interpreter for a juror and that it was not possible for an interpreter to be present in the jury room during its deliberations.

The appellant made a complaint which was referred to the Queensland Civil and Administrative Tribunal (“QCAT”). The appellant alleged that the Deputy Registrar contravened the prohibitions, under the Anti-Discrimination Act 1991 (Q), against direct and indirect discrimination in the performance of a function or the exercise of a power under Queensland law. The appellant asserted that the Deputy Registrar had excluded her on the basis of her impairment so as to constitute direct discrimination and that the Deputy Registrar had imposed a condition on her participation in the jury process so as to constitute indirect discrimination. QCAT found that the Deputy Registrar’s understanding of the Jury Act was incorrect but it accepted that the Deputy Registrar had not unlawfully discriminated against the appellant. The appellant appealed to QCAT’s Appeal Tribunal which dismissed the appeal, holding that the Deputy Registrar’s understanding of the Jury Act was correct. The Court of Appeal refused leave to appeal from the Appeal Tribunal’s decision.

By grant of special leave, the appellant appealed to the High Court. The Court held that, absent specific legislative provision, Queensland law did not permit an Auslan interpreter to be present during jury deliberations. It followed that the appellant was not qualified to serve as a juror and the Deputy Registrar was required to exclude her from the jury panel. The exercise of the Deputy Registrar’s powers in conformity with the Jury Act therefore did not infringe the relevant prohibitions, under the Anti-Discrimination Act, against discrimination.

Prince Alfred College Incorporated v ADC [2016] HCA 37

Today the High Court unanimously allowed an appeal from the Full Court of the Supreme Court of South Australia. It held that the respondent should not have been granted an extension of time under s 48(3) of the Limitation of Actions Act 1936 (SA) (“the Limitations Act”) to bring his proceeding.

In 1962, the respondent was a 12 year old boarder at the Prince Alfred College (“the PAC”). He was sexually abused by Bain, a housemaster employed by the PAC. The first two instances of abuse occurred on occasions when Bain was telling a story in the respondent’s dormitory after lights out. Thereafter, the respondent was molested by Bain on about 20 occasions in Bain’s room and again when they spent a night together at a house. The respondent’s evidence was that prefects supervised the daily activities of the junior boys, such as study, showering and lights out, but that Bain was often present during shower time and often told stories in the dormitory after lights out. The respondent said that other housemasters did not supervise lights out or enter his dormitory. The respondent suffered symptoms of psychological injury from the early 1980s onwards. In 1997, he decided not to sue the PAC and accepted its offer to pay his medical and legal fees to date and his son’s school fees. The respondent commenced civil proceedings against Bain, and reached a settlement in 1999. The respondent’s symptoms persisted and he sought further financial assistance from the PAC in 2004 and 2005, without success. In 2005, his psychologist said that he would not work full-time again.

The respondent brought proceedings against the PAC in the Supreme Court of South Australia in December 2008. He alleged that the PAC was liable in damages to him for breach of a non-delegable duty of care and breach of its duty of care, and that the PAC was vicariously liable for the wrongful acts of Bain. Due to the passage of time, the respondent required an extension of time to bring proceedings. Section 48(3) of the Limitations Act permits, if certain preconditions are met, a court to extend time at its discretion if the respondent shows that it was just in all the circumstances for it to do so. This involves showing that the PAC would not be significantly prejudiced as a result of the exercise of the court’s discretion. The primary judge dismissed the respondent’s case regarding liability, and refused to grant an extension of time due to the prejudice suffered by the PAC by reason of the “extraordinary” delay in commencing proceedings. Her Honour considered that the PAC was disadvantaged due to the absence or death of critical witnesses, and the loss of documentary evidence. On appeal, each member of the Full Court held that the PAC was vicariously liable and an extension of time should have been granted.

By grant of special leave, the PAC appealed to the High Court. Unanimously, the Court held that the primary judge was correct not to have granted an extension of time. The respondent’s decision in 1997 not to commence proceedings was significant in this regard. A majority of the High Court considered the correct approach to be taken to the question of the PAC’s vicarious liability for the acts of Bain. In cases of this kind, attention must be given to any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. Relevant features in this regard include authority, power, trust, control and the ability to achieve intimacy with the victim. However, the identification of the correct approach also showed that a determination could not be made as to the PAC’s liability in this case, because the length of the delay and consequent deficiencies in the evidence placed the PAC in such a position that it could not properly defend the claims brought against it. That was another reason why the extension of time could not be granted and it was also the reason why the primary judge should not have proceeded to determine liability. The High Court allowed the appeal.