(Other than Applications for Special Leave to Appeal)

FEBRUARY 2000

EASTMAN v. THE QUEEN (C5/1997)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 25 June 1997

On 3 November 1995 the applicant was convicted in the Supreme Court of the Australian Capital Territory of the murder, on 10 January 1989, of Colin Stanley Winchester. The trial lasted from 16 May 1995 until 3 November 1995. The applicant was sentenced to life imprisonment, and his appeal to the Federal Court of Australia was dismissed on 25 June 1997.

The deceased was killed by being shot twice in the head whilst alighting from his car. The applicant denied any involvement in the killing. The applicant, before and during his trial, repeatedly dismissed counsel and solicitors from his case and was unable to effectively represent himself. His conduct before the Trial Judge and the jury was offensive, disruptive and turbulent. The applicant contends that this state of affairs was caused by a circumstance beyond his control, namely that he suffered from chronic paranoid schizophrenia.

There is some contention between the applicant and the respondent as to the scope of the applicant's illness. The applicant seeks to introduce new evidence as to his mental capacity, notwithstanding the Court's decision in Mickelberg v. The Queen (1989) 167 CLR 259. The applicant seeks to introduce affidavits from barristers and solicitors who represented him at various times during his previous proceedings and a psychiatrist's report.

The application for special leave to appeal was heard on 12 February 1999 and was referred to the Full Court of the High Court for hearing on 25 March 1999. On 25 March 1999 the Full Court heard argument on whether it should reconsider Mickelberg v. The Queen to permit the admission of new evidence. The Attorneys-General for the Commonwealth and the States of Victoria and Western Australia were granted leave to intervene. The Full Court reserved its decision on that point and stood the matter over.

On 5 October 1999 the Court re-listed the matter for a further hearing on 1 February 2000 to hear argument on the questions whether, on the material that was before the Full Court of the Federal Court of Australia, that court could, and should itself, have made inquiry about and considered the applicant's fitness to plead or stand his trial.

The questions of law said to justify a grant of special leave to appeal include:

• Whether the Full Court erred in law in failing to hold that the trial miscarried by reason of the actions of the prosecution in withholding evidence that the applicant was insane and/or unfit to plead or give instructions to his legal advisers;

• Whether the Full Court erred in law in failing to hold that the trial miscarried by reason of the admission of character evidence at trial;

• Whether the Full Court erred in law in failing to hold that the trial miscarried by reason of the treatment of the applicant at trial; and

• Whether the Full Court erred in law in failing to hold that the trial miscarried by reason of the applicant being denied sufficient legal aid funding so as to enable him to present new evidence on appeal to the Full Federal Court relating to the unreliability of forensic evidence given at trial by Dr Barnes on behalf of the prosecution.

AUSTRALASIAN MEMORY PTY LIMITED & ANOR v. BRIEN & ANOR (S84/1999)

Court appealed from: Supreme Court of New South Wales, Court of Appeal

Date of judgment: 29 October 1998

Date of grant of special leave: 14 May 1999

The respondents were appointed joint administrators of the appellant on 18 February 1997 pursuant to a resolution of the directors of the appellant under s436A of the Corporations Law ("the Law"). The directors included Mr Amor, the second appellant. The first meeting of creditors under s436E of the Law took place within the requisite five business days on 21 February 1997. A Report as to Affairs presented to the meeting on 21 February disclosed a deficiency of assets over liabilities of approximately $6.4 million. It is not in dispute that the company was at that time insolvent.

The respondents, purporting to act pursuant to s439A of the Law, by notice dated 24 February 1997, convened a second meeting of creditors for 3 March 1997. The meeting purportedly commenced on that day and, after discussion, the creditors resolved that the meeting be adjourned to a date no later than three weeks from that date. By notice dated 18 March 1997, a further meeting of creditors was convened for 24 March 1997 and took place on that day. The creditors then resolved that the company be wound up.

Section 439A(2) of the Law required that the meeting must be held not earlier than the expiration of twenty-one days beginning on the day the administration began (18 February 1997) and ending not later than the expiration of five days thereafter (unless extended by the Court pursuant to s439A(7)). It was common ground that the meeting was convened within the convening period as required by s439(1) but was held prematurely by eight days, having been held on 3 March 1997 (though adjourned to 24 March 1997) rather than the earliest permitted date of 11 March 1997.

Nonetheless, the respondents assumed that at that time, by force of s446A and other provisions of the Law they thereupon became the liquidators of the company. The employment of all the company's employees was immediately terminated and the respondents embarked on the process of realising the assets of the company. They caused the company to serve notices of demand upon two companies alleged to be debtors of the company. The Federal Court set aside the statutory demands on the ground that they were issued without authority, the meeting which purported to lead to the appointment of the liquidators having been convened prematurely.

The judge at first instance exercised his discretion and made remedial orders under s1322(4) and s447A of the Law validating the appointment of the respondents as liquidators of the first appellant. The Court of Appeal, by majority, dismissed the appellants' appeal.

The grounds of appeal are:

• That the Court of Appeal erred in holding that Section 447A of the Corporations Law ("the Law") upon its proper construction, empowered the Court to make the orders made by the Equity Division of the Supreme Court of New South Wales in these proceedings.

• That the Court of Appeal erred in holding that Section 1322 of the Law, upon its proper construction, empowered the Court to make the orders made by the Equity Division of the Supreme Court of New South Wales in these proceedings.

 

BOND v. THE QUEEN (P57/1999)

Court appealed from: Court of Criminal Appeal of the Supreme Court of Western Australia

Date of judgment: 22 August 1997

Date special leave granted: 20 October 1999

On 4 December 1996, the applicant pleaded guilty to 2 counts specifying offences under the Companies (Western Australia) Code 1981 (WA). These offences related to the applicant's conduct as a company director.

On 5 February 1997 a sentence, amounting to an aggregate of 4 years' imprisonment to be served cumulatively upon the sentences then being served by the applicant, was imposed. An order for parole eligibility was made.

The Commonwealth Director of Public Prosecutions appealed against the sentences. At the hearing of the appeal, no point was taken by the applicant's senior counsel as to either the competence of the appeal (being brought by the Commonwealth DPP) or the jurisdiction of the Court. On appeal, the Court of Criminal appeal set aside the sentences and substituted longer prison sentences producing an effective sentence of 7 years' imprisonment. An order for eligibility for parole was made.

Subsequently an application for special leave to appeal was filed in the High Court. No point was made regarding the competence of the appeal or the jurisdiction of the Court of Appeal. This application was discontinued on 11 December 1997.

The current application for special leave to appeal was filed following the judgment being delivered by the High Court in Byrnes v. The Queen and Hopwood v. The Queen 164 ALR 520. This case raised the question of the authority of the Commonwealth DPP to prosecute offences against the laws of a State.

The grounds of appeal include:

• That the Court below did not have jurisdiction to entertain the appeal by reason that the notices of appeal in the court below could not invoke the jurisdiction of that court as they were invalid because:

(a) the appeal was brought by the Director of Public Prosecutions for the Commonwealth; and

(b) The Director of Public Prosecutions for the Commonwealth did not have the power (or authority, right, function or entitlement) to institute, conduct and/or prosecute the appeal to or in the court below;

 

• That the appeal to the court below was incompetent by reason of the notice of appeal being invalid and thus the Court of Criminal Appeal erred in allowing the appeal and re-sentencing the appellant.

ZONEFF v. THE QUEEN (A23/1999)

Court appealed from: Court of Criminal Appeal, South Australia

Date of judgment: 1 December 1998

Date of grant of special leave: 13 August 1999

The appellant was tried on 7 counts, 4 of which charged him with false pretences and 3 with fraudulent conversion. A jury found him guilty of 6 of the charges. The total amount of money involved was around $73,000.

The prosecution case was that the appellant took advantage of 5 people. These people each met the appellant when they went to purchase furniture from the Le Cornu Furniture Centre where the appellant worked as a salesperson. The prosecution alleged that the appellant ingratiated himself with these people, fostering their friendship to betray their trust by dealing dishonestly with their money. Two of the victims (S and M) said that the appellant persuaded them to pay the amount outstanding on their purchases to him, so that they could have the benefit of bonus points (amounting to a discount of $720) to which he was entitled as part of his employment conditions. The money deposited was used by the appellant to pay his personal debts. Another 2 victims (Mr & Mrs D) purchased furniture for a house they were building. In the course of contact with the appellant, he told them of the substantial discount on their furniture if they paid their money to him, which they agreed to do. In the course of one telephone conversation the appellant proposed that the three of them enter into a business venture together to build 2 units as an investment. An arrangement was made and they took out a loan of some $84,000. Part of this was used to pay off an existing mortgage and the balance was used to write three cheques towards the investment. The appellant used the funds to satisfy his own debts. The fifth victim (P) was also persuaded to make a payment to the appellant in return for a discount of $720 off her furniture purchase.

The appellant's evidence was that he denied any false pretence and that the victims were aware of the personal purposes to which their money was put. He maintained that he had a bona fide belief that he was entitled to deal with the monies in the way in which he did.

The appellant appealed against conviction and sentence. The majority in the Court of Criminal Appeal (Cox J concurring with Prior J) dismissed the appeal against conviction but allowed the appeal against sentence. Olsson J would have allowed the appeal on one of the grounds relating to the trial judge's direction on lies. The High Court granted special leave limited to the ground relating to the trial judge's direction on lies.

The ground of appeal is:

• The learned Justices Cox and Prior erred by dismissing argument with respect to how the learned trial judge was to sum up to the jury with respect to "lies". The learned trial judge should have given a full direction in accordance with the principles as set out in Edwards v. The Queen (1993) 178 CLR 193.

AUSTRAL PACIFIC GROUP LIMITED v. AIR SERVICES AUSTRALIA (B46/1999)

Court appealed from: Court of Appeal of the Supreme Court of Queensland

Date of judgment: 19 June 1998

Date special leave granted: 24 June 1999

The plaintiff was employed as a fire fighter by the Civil Aviation Authority (CAA), a Commonwealth instrumentality. He was employed at Cairns airport. The plaintiff claimed to have sustained injury when he was alighting from a fire engine, when he stepped on an aluminium step forming part of the vehicle. The step had a rubber tread molding, which came off causing the plaintiff to fall to the ground. The plaintiff did not sue his employer, but instead brought an action against Austral Pacific Group Limited (APGL), the appellant in these proceedings, alleging that it had supplied the appliance to the CAA and was legally responsible for the defective condition of the step.

After the accident, the CAA was abolished by statute, and its assets and liabilities transferred to Air Services Australia (ASA), which is a Commonwealth authority within the meaning of the Safety Rehabilitation and Compensation Act 1988 (Cth). ASA was the third party named in the initial proceedings.

APGL delivered a defence, and a third party notice against ASA claiming indemnity or contribution on the basis of its failure to maintain the steps of the appliance in a safe condition. ASA then applied to strike out the third party notice on the ground that it was not, within the meaning of s6(c) of the Law Reform Act 1995 (Qld), a tortfeasor "who is, or would if sued have been, liable in respect of the same damage" as the defendant APGL. That contention was based upon the provisions of ss44 and 45 of the Safety Rehabilitation and Compensation Act. The rationale was that unless and until an employee elected to sue his employer, the employer was not a tortfeasor "who is, or would if sued have been, liable in respect of the same damage".

In order to sue an employer under the Safety Rehabilitation and Compensation Act an employee must first elect in writing to institute an action. Here the employee had not elected to institute proceedings, although he had not received benefits under the Act as would deprive him from the ability to do so.

The application to strike out the third party notice was dismissed at first instance. On appeal the application was allowed.

The grounds of appeal are:

• That the Court of Appeal erred in finding that unless and until an employee makes an election in writing to institute an action under s44(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) no claim for contribution may be made by the appellant defendant against the respondent third party under the provisions of s6 of the Law Reform Act 1995 (Qld);

• That the Court of Appeal erred in finding that it was not competent for the appellant defendant to issue a third party notice against the respondent third party if the plaintiff employee had not yet made an election to sue the respondent third party under s45(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth); and

• That the Court of Appeal erred in failing to find that the appellant defendant was entitled to issue and maintain third party proceedings against the respondent third party under s6(c) of the Law Reform Act 1995 (Qld) notwithstanding the failure of the employee to elect under s45(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) to sue the respondent third party.

 

ALLESCH v. MAUNZ (C15/1999)

Court appealed from: Full Court of the Family Court of Australia

Date of judgment: 26 November 1998

Date special leave granted: 6 August 1999

In August 1993, the respondent filed an application for property settlement in the Family Court to which the appellant responded. On more than two occasions the matter was fixed for hearing but did not proceed for various reasons. The proceedings involved a number of interlocutory applications.

In April 1995 the appellant commenced acting for himself.

Ultimately, following on from a directions hearing on 19 May 1995, the respondent's application for property settlement proceeded on an undefended basis before Finn J on 14 June 1995. The appellant did not appear on either occasion. He had been notified of both hearings and served with a copy of the orders made at the directions hearing where the matter had been listed for an undefended hearing. Finn J gave her decision on 10 July 1995 and the matter was listed on 10 August 1995 for final orders in relation to property settlements. There was no appearance by the appellant on 10 August 1995.

The appellant contended that he was unable to attend the hearings because of ill health. He was admitted to hospital with a heart condition on 1 May 1995 and discharged on 14 May 1995. On 12 May 1995 he forwarded a letter to the Registrar of the Family Court enclosing a medical certificate. In response he was advised by letter of 18 May 1995 from the Deputy Registrar, that it would be necessary for him to appear or instruct a solicitor to appear on his behalf at the directions hearing on 19 May 1995 if he wished to seek an adjournment.

The appellant was again admitted to hospital on 2 June 1995 where he had surgery on 5 June 1995 and he was obviously unwell at the time the undefended hearing took place. It was the appellant's case that Finn J had evidence of his medical condition before her on 14 June when she proceeded to hear the matter undefended.

The orders of 10 August 1995 provided for a period of 7 days before which they came into effect during which time the appellant could file an application to have the orders set aside. This the appellant did and Finn J heard this application on 18 September 1995 when it was dismissed. The appellant was legally represented at this hearing. In dismissing the application Finn J took into account evidence regarding the effect of the proceedings on the respondent's health.

On 4 October 1995 the appellant filed a notice of appeal against the orders made by Finn J on 18 September 1995. On 2 April 1996 the appellant had again ceased to be represented. The appellant's appeal came on for hearing on 28 May 1996 at which time there was no appearance by the appellant and the appeal was noted as abandoned.

On 30 March 1998 the appellant filed an application for re-instatement of his appeal and on 20 May 1998 O'Ryan J ordered its re-instatement.

The Full Court of the Family Court dismissed the appeal although on different bases:

(a) Lindenmayer J expressed the view that Taylor's Case (1979)

• FLC 90- 674 gave the Court a discretion to set aside a judgment against a party to proceedings who, through no fault of his of her own, had been deprived of the opportunity to appear or present his case. In the present circumstances however, he found that the appellant had not effectively availed himself of an opportunity to seek an adjournment; and

(b) Brown and Kay JJ expressed the view that having regard to the appellant's circumstances, Finn J was in error in dismissing the appellant's application for re-hearing. However, in light of the lapse of 3 years since the making of the orders and their substantial execution, they concluded that the matter should not be remitted for further hearing.
The grounds of appeal include:

• That the Full Court erred in law in not expressly deciding whether a miscarriage of justice had occurred given the circumstances surrounding the appellant's non attendance at the ex parte hearing and where it was not possible for the appellant to apply for an adjournment when he was representing himself;

• That the Full Court erred in not deciding whether a miscarriage of justice had occurred by reason of Finn J hearing the application on 6 September 1995 in relation to the order made by her on 10 August 1995, this being a conflict of interest;

• That the Full Court, by not expressly deciding whether a miscarriage of justice had occurred within the meaning of s79A(1)(a) erred in their approach to the hearing of the appeal generally;

• That the majority of the Full Court erred in law by implying a time limit in which the court can set aside orders either pursuant to s79A of the Family Law Act or the inherent jurisdiction of the Court and, in particular, where the main property still existed; and

• That the Full Court erred in law in failing to find that the orders of 10 August 1995 were not effective and were thus unconstitutional and incapable of enforcement and that the enforcement of same had been a violation of the appellant's human rights.

 

GUSS v. JOHNSTONE (M55/1999)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 13 November 1997

Date of grant of special leave: 14 May 1999

In September 1992 Johnstone, a barrister, took action in the Magistrates Court to recover fees he was owed by Guss, a solicitor. Johnstone obtained judgment for $8,430 plus interest and costs. Guss unsuccessfully applied to set aside that judgment. Applications to a Master of the Supreme Court and a single judge of the Supreme Court were also unsuccessful. A further application to the Magistrates Court was also dismissed. Guss then applied to the Supreme Court for a declaration that that dismissal was a nullity. That application was dismissed by Hayne J. Guss appealed to the Full Court, which ordered security for costs be given. The security was not provided and the appeal was dismissed.

Johnstone issued a bankruptcy notice in respect of the taxed costs, in the sum of $4,989.40. Guss filed an affidavit claiming a counter-claim, set-off or cross demand. The effect of filing such an affidavit was that the time for compliance with the bankruptcy notice was extended until the Court determined whether it was satisfied that the debtor had such a counter-claim, set-off or cross demand. The affidavit claimed that, as a result of Johnstone's negligent advice, costs of certain proceedings in which Guss and others had been involved were increased, that recovery of property had been delayed leading to further losses and that all of these far exceeded the amount in the bankruptcy notice. Sundberg J was not satisfied that Guss had established a prima facie case against Johstone. Guss appealed to the Full Court. He also sought a stay pending the Full Court hearing, but this was refused by Sundberg J. The amended notice of appeal included an appeal against the refusal of a stay.

The Full Court (Ryan, Whitlam & Marshall JJ) dismissed the appeal. The Full Court took the view that at the end of the day on which Sundberg J had given his decision, the time for compliance with the bankruptcy notice had expired (there having been no application for extension of time). Therefore an act of bankruptcy had occurred. As a result there was no utility in the Full Court acceding to the application to set aside the declaration made at first instance.

The grounds of appeal include:

• The Full Court of the Federal Court of Australia erred in failing and/or declining to decide whether or not the Judgment Debtor had a counter-claim, set-off or cross-demand of the type referred to in s40(1)(g) of the Bankruptcy Act 1966 (Cth) on the basis that there was no declaratory relief of any utility that could be granted in favour of the Judgment Debtor as the time for compliance with the bankruptcy notice had expired at the end of the day upon which the learned primary judge pronounced that he was not satisfied of the existence of a counterclaim, set-off or cross-demand within the meaning of s40(1)(g) of the Act and it was not capable of being further extended or revised.

On 21 December 1998 Justice Kenny ordered that the Geelong Building Society (in liquidation) be substituted as petitioning creditor in place of the respondent in bankruptcy proceedings in the Federal Court of Australia and ordered that the estate of the appellant be sequestered. An application for leave to intervene will be made at the hearing of the appeal on behalf of the Geelong Building Society (in liquidation). The respondent did not appear on the hearing of the application for special leave to appeal and will not appear at the hearing of this appeal.

 

 

(Other than Applications for Special Leave to Appeal)

FEBRUARY/MARCH 2000

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v. ABDI (S156/1999)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 26 March 1999

Date of grant of special leave: 10 September 1999

The respondent arrived in Australia on 24 February 1998. He was taken into custody on arrival. His application for a protection visa was refused by a delegate of the Minister and the Refugee Review Tribunal (the Tribunal) affirmed this. He then applied to a single judge of the Federal Court for judicial review. The primary judge set aside the Tribunal's decision and remitted the matter to the Tribunal for a re-hearing. The appellant appealed to the Full Federal Court which dismissed the appeal.

The respondent is a Somali national. He was caught up in an intra-clan dispute over leadership and land and feared returning to Somalia which is in a state of clan or civil warfare. The legal issues for consideration arise in the context of civil or clan warfare in Somalia which has been in a state of civil war over the past decade.

The Tribunal accepted that Somalia was in a state of civil or clan warfare, however it found that this did not give rise to Convention based persecution. The Tribunal applied the reasoning of the House of Lords in Adan v. Secretary of State for the Home Department [1998] 2 WLR 702 in holding that a claimant must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare.

The Full Court posed the question arising on appeal thus: whether the Tribunal erred in applying a requirement that in a clan war context, something over and above the risk of harm inherent in the civil war was required to be shown. In relation to Adan the Full Court held that it did "not accept that a clan or race based warfare cannot, without some further and differential degree of risk, amount to persecution in the sense that an individual is selected out for persecution treatment because he is a member of a particular clan".

In November 1999 the respondent asserted that he wished to return to Somalia. He departed Australia on 9 December 1999 bound for Somalia. Although the respondent has now left Australia the appellant does not consider the appeal to be moot.

The grounds of appeal include:

• [That] the Full Court of the Federal Court erred -

(a) In holding that a person could invoke Australia's protection obligations under the Refugees Convention in circumstances where the serious harm feared in his country of nationality arose from a civil war based on race or religion; and

(b) In failing to hold that, consistently with the approach adopted in Adan v. Secretary of State for the Home Department [1998] 2 WLR 702 and applied by the Refugee Review Tribunal, the person must show that he or she is at greater risk than the risk to other members of their clan or society arising from the civil or clan warfare itself.

 

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v. IBRAHIM (S157/1999)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 9 April 1999

Date of grant of special leave: 10 September 1999

The respondent arrived in Sydney on 25 December 1997. He had travelled under a false name from Thailand where he had been living for about two years. He was taken into detention on arrival and has remained in detention ever since.

On 2 January 1998, the respondent lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. This application was refused and the Refugee Review Tribunal (the Tribunal) affirmed this. He then applied to a single judge of the Federal Court for judicial review. This application was dismissed. An appeal to the Full Federal Court was allowed.

The respondent is a Somali national who claims to fear persecution in Somalia for reasons of his membership of the Rahanwein clan and his membership of a subclan of the Rahanwein. The crucial question before the Tribunal was whether or not the respondent's fear was a fear of persecution for a Convention reason. The Tribunal concluded that the harm the respondent feared was not persecution for reasons of his membership of the clan or subclan but rather unsystematic warfare because of shifting allegiances which were the consequence of power struggles between clans and subclans. The Tribunal said "what emerges from all the evidence is a picture of the ordinary risks of clan warfare ... none of the material before me points to circumstances which would convert the conflict into persecution".

At first instance the trial judge held that the Tribunal had not applied an incorrect test. The respondent appealed.

The Full Court of the Federal Court found that the Tribunal adopted an erroneous approach to the expression "systematic conduct". It said that the Tribunal should have determined whether the particular experiences of the respondent were caused by persecution for Convention reasons and in the light of those findings it should have considered whether, at the time of the determination of the application, there was a real chance of the respondent being persecuted by reason of his membership of the Rahanwein clan if he were to return to Somalia.

The grounds of appeal include:

The Full Court of the Federal Court erred -

• In holding that a person could invoke Australia's protection obligations under the Refugees Convention in circumstances where the serious harm feared in his country of nationality arose from a civil war where "the reasons for the war are to harm on the basis of race or clan";

• In formulating the test as depending on "whether the reasons for the war are to harm on the basis of race or clan or whether the struggle is in substance directed to control of resources or to the assertion of dominance over territory" because -

(1) a clan-based civil war inevitably places individuals at risk of persecution on a Convention ground, namely race or membership of a particular social group; and

(2) it is not necessary that the Convention reason be the sole reason for the persecution.

 

HUGHES v. THE QUEEN (P58/1999)

Order for Removal: 20 October 1999

By indictment dated 15 July 1997, the Commonwealth Director of Public Prosecutions commenced proceedings in the District Court of Western Australia against the defendant and another. The indictment alleged breaches of the Corporations Law. The trial was listed for hearing on 8 December 1998 at which time the presiding District Court Judge amended the allegations in the counts. In the course of pre-trial argument, counsel for the prosecutor submitted that the provisions of the Criminal Code (WA) did not apply to the conduct of the trial, as the offences before the Court were Commonwealth offences.

By notice of motion dated 23 August 1999, the defendant applied to Healy DCJ to quash the indictment on the grounds that it failed to disclose an offence against the laws of the Commonwealth or an offence against the laws of Western Australia. It was submitted on behalf of the defendant that the application involved a matter arising under the Constitution or involving its interpretation and accordingly notices pursuant to s78B of the Judiciary Act 1903 were required. His Honour accepted this submission and vacated the trial date to enable the defendant to bring an application under s40 of the Judiciary Act 1903 for removal into the High Court of Australia of so much of the cause as is involved in the defendant's motion to quash the indictment.

On 20 October 1999 the High Court ordered the removal of that part of the proceedings pending in the District Court of Western Australia.

On 29 November 1999 Justice Gummow stated a case for the consideration of the Full Court, raising the following questions:

(i) Is s45 of the Corporations Act 1989 (Cth) ("the Principal Act") as amended by s4(1) of the Corporations Legislation Amendment Act 1990 (Cth) a valid exercise of legislative power of the Commonwealth of Australia in so far as, with respect to Western Australia, it purports to require offences to be " taken to be " offences against the "laws of the Commonwealth"?

(ii) If yes, against which laws of the Commonwealth are the offences alleged in the indictment committed?

(iii) Is s43(2) of the Principal Act a valid and effective conferral of function or power upon " an officer or authority of the Commonwealth " to prosecute offences against the Corporations Law of Western Australia.

(iv) Is s29 of the Corporations (Western Australia) Act 1990 ("the State Act") a valid exercise of the legislative power of the Parliament of Western Australia in so far as it purports to create offences which are "taken to be" offences against the laws of the Commonwealth?

(v) If offences by the State Act are "taken to be" offences against the laws of the Commonwealth, against which laws of the Commonwealth are the offences alleged in the indictment committed?

(vi) Are offences which, by the State Act, are "taken to be" offences against the laws of the Commonwealth, offences against the laws of the Commonwealth or offences against the laws of Western Australia?

(vii) Do ss31 and 33 of the State Act constitute a valid and effective conferral of function or power upon " an officer or authority of the Commonwealth " to prosecute offences against the Corporations Law of Western Australia?

(viii) By what legislative authority is the Commonwealth Director of Public Prosecutions empowered to exercise the purported conferral, pursuant to ss31 and 33 of the State Act, of function or power to prosecute offences against the Corporations Law of Western Australia?

(ix) Does the indictment in the matter herein disclose an offence known to the law of:

(a) The Commonwealth?

(b) The State of Western Australia?

(c) The Australian Capital Territory?

The Attorneys-General of the Commonwealth, Victoria and Western Australia will intervene in this matter.

 

SCOTT & ORS v. DAVIS (A16/1999)

Court appealed from: Full Court, Supreme Court of South Australia

Date of judgment: 26 June 1998

Date of grant of special leave: 18 June 1999

This application arises out of the crash of a light aeroplane which occurred in mid-afternoon of Sunday, 29 July 1990, in the Barossa Valley. The first appellant (Travis) was the surviving passenger in the plane. He was 11 at the time and suffered spinal injuries. The pilot (Bradford) was killed in the crash. The second and third appellants, who are Travis' parents, saw the plane crash and were at the scene of the crash within minutes. As a result they suffered nervous shock.

The respondent, who owned a property near Jacob Creek, is Travis' uncle. He was a pilot. He collected light aircraft and housed and flew them around his property. There was an airfield and a hangar on his property. The surrounding country consisted of rolling hills, open land and vines to the west. On that Sunday the Scott family were visiting the Davis property for a family celebration. Also present on that Sunday were three other pilots, including Bradford. There were three planes being flown that afternoon, including a yellow 1946 two seater Aeronca owned by the respondent. The respondent, through his wife, asked Bradford to take the boys for a "ride". Bradford agreed. Travis was put into the Aeronca and seated behind the pilot. The Aeronca took off and whilst turning, crashed at a place just north of Jacob Creek. The pilot had lost control of the aircraft whilst executing a low level turn at low speed. The aircraft had stalled. The pilot was killed on impact.

All three appellants instituted proceedings for damages against the respondent and his wife. The estate of the pilot was not joined in any of the actions. The trial judge awarded damages to each of the appellants, finding that:

• the pilot was negligent in the management and operation of the aircraft and that his negligence had caused the crash and therefore the injuries to Travis;

• the respondent, as owner, was vicariously liable for the negligence of the pilot; and

• neither the respondent nor his wife was personally negligent in arranging for the deceased pilot to fly Travis in the Aeronca.

There was an appeal and cross-appeal. Doyle CJ and Nyland J (Millhouse J dissenting on this issue alone) allowed the appeal on the basis that the respondent was not vicariously liable for the negligence of the pilot. The Full Court found that if the principle affirmed in Morgans v. Launchbury [1973] AC 127 were applicable to aircraft, the trial judge had correctly applied the principle. However, the majority confined the application of the principle to the negligent use of motor vehicles and declined to apply the principle more widely.

The grounds of appeal are:

The Full Court erred in restricting the principle of vicarious liability affirmed in Launchbury v. Morgans [1973] AC 127 to the use of motor vehicles; and The Full Court erred in declining to follow and apply decisions in England and Canada which apply the principle to boats and to aircraft;

The respondent has filed a notice of contention based upon the following ground:

• The Full Court erred in failing to determine that if the doctrine of vicarious liability discussed in Launchbury v. Morgans [1973] AC 127 applies to aircraft then on the facts of the present case the respondent was not liable in accordance with that doctrine having regard to:

(a) the fact that the carriage of the first appellant in the respondent's aircraft was not performed for the purpose and/or benefit or sufficient purpose or benefit of the respondent; or

(b) the dominant purpose of the use of the respondent's aircraft, in carrying the first appellant, was to satisfy the request of the first appellant's parents that the first appellant be taken for a pleasure flight.

 

KENNEDY CLEANING SERVICES PTY LTD v. PETKOSKA (C16/1999)

Court Appealed from: Full Court of the Federal Court of Australia

Date of Judgment: 12 October 1998

Date of Grant of Special Leave: 6 August 1999

The appellant was the employer of the respondent. The respondent suffered from mitral stenosis being a narrowing of the mitral valve in the heart. She had been diagnosed as having this disease and heart rhythm disturbance as early as 1988. The respondent's condition was closely linked with the risk of blood clots forming in the heart and being carried to the brain thereby causing an embolism.

On 9 September 1992 the respondent suffered a stroke at work as a result of the mitral stenosis. The occurrence of the stroke was not related to the physical activity of work or otherwise contributed to by employment. The respondent was, from the date of the stroke, totally incapacitated for work.

The respondent lodged an application for workers compensation and on 24 June 1997 the magistrates court held that compensation was payable because the respondent had, for the purposes of Section 7 of the Workers' Compensation Act 1951 (ACT), suffered personal injury in the course of her employment.

On appeal to the Supreme Court Crispin J overruled this decision.

The respondent then appealed to the Full Court of the Federal Court arguing that Crispin J had erred in finding that the stroke was not a personal injury within the meaning of Section 7 of the Workers' Compensation Act and, in particular, erred in finding that it was necessary for the respondent to demonstrate that there had been a rupture of a blood vessel in order to bring the incident within the meaning of an injury. The Full Court of the Federal Court upheld the appeal.

The grant of special leave to appeal to the High Court is conditional upon the appellant filing an undertaking that it will -

(a) Not seek to disturb the costs order made in the Full Federal Court of Australia; and

(b) Pay the respondent's costs in this Court in any event.

The ground of appeal is:

• The Court erred in holding that the respondent had suffered an injury for the purposes of s7(1) of the Workers' Compensation Act 1951 (ACT).

 

TRENORTH LIMITED (FORMERLY EUROLYNX PROPERTIES LTD) v. MALLESONS STEPHEN JAQUES (M100/1999)

Court Appealed from: Court of Appeal, Victoria

Date of Judgment: 7 October 1998

Date of grant of special leave: 10 September 1999

In 1989 the appellant (Trenorth) leased shop premises to Swaeder at an annual rental of $156,000. At the same time these parties entered into a side agreement for a 3-month rent-free period and a payment by Trenorth to Swaeder of $156,000 towards fit-out costs. The respondent (Mallesons) drafted the lease and the side agreement. In September 1989, Trenorth sold the shop premises to the Krakowskis. Mallesons prepared the section 32 statement, which a vendor is required by legislation to give to a purchaser. The statement had a copy of the lease attached and the lease falsely stated that the lease comprised the entire understanding and agreement between Trenorth and Swaeder. In response to a Requisition on Title requiring production of "agreements relating to the tenancy", Mallesons drafted an answer which referred only to the lease. In reliance upon Mallesons' advice Trenorth's responsible officer did not disclose the side agreement either in the section 32 statement or the Answers to Requisitions. The courts below found that the officer would have disclosed the side agreement, if advised to do so by Mallesons. The Krakowskis brought proceedings against Trenorth. Trenorth joined Mallesons as a third party, but not as a defendant to the Krakowskis' action.

In Krakowski v. Eurolynx Properties Ltd, the High Court found Trenorth liable to the Krakowskis for fraudulent misrepresentation and the matter was remitted to the Victorian Supreme Court for hearing. As a result of orders made by McDonald J, the contract of sale was rescinded, Trenorth was required to pay $3,482,617 plus costs to the Krakowskis and the shop was returned to Trenorth. Trenorth then sold the shop in July 1996 and derived net proceeds of $743,000. In the subsequent trial of the third party proceedings between Trenorth and Mallesons, Eames J held that Mallesons had acted negligently and in breach of its retainer in failing to advise Trenorth to disclose the side agreement. Eames J fixed the damages flowing to Trenorth at $1,304,003 plus interest. This figure was based on the sum of $3,482,617 Trenorth had been ordered to pay to the Krakowskis less (a) the proceeds of sale recouped by Trenorth of $743,000; (b) notional interest on the purchase price received from the Krakowskis; (c) rent received by Trenorth and (d) an allowance for the difference between the contract price of the land and its market value at the time it was sold to the Krakowskis.

Mallesons appealed and Trenorth cross-appealed. The Court of Appeal concluded that on the evidence a finding could not be made that Mallesons' negligence caused the whole of Trenorth's loss. Kenny JA (with whom Callaway & Buchanan JJA concurred) concluded on the facts that the cause of Trenorth's loss was its own deliberate and wrongful act, the negligence of Mallesons being but an antecedent (though necessary) precondition. The Court did not find it necessary to consider Mallesons' other grounds of appeal. The appeal by Mallesons was allowed and the cross appeal dismissed. The Court found that the loss caused by Mallesons was limited to $30,000 plus interest, this being the difference between the contract price in September 1989 and the actual value of the premises at that time.

The grounds of appeal include:

• In circumstances where:

(a) the appellant's liability to the purchasers (the Krakowskis) arose because the section 32 statement falsely stated that the instrument of lease between appellant and the tenant (Swaeder) contained the whole of the agreement between it and Swaeder; and

(b) the false statement only appeared in the section 32 statement because of the negligent preparation and provision of same by the respondent in its capacity as solicitors for the appellant;

 

• the Court wrongly held that the respondent's negligence did not cause the whole of the loss suffered by the appellant.

• In holding that the respondent's negligent preparation and provision of a false section 32 statement did not cause the whole of the appellant's loss the Court did not apply, alternatively, misconceived and misapplied the principles stated in March v. E & MH Stramare Pty Limited (1991) 171 CLR 506.

• The Court wrongly held that the fact that the appellant had been held liable to the Krakowskis for fraudulent misrepresentation:

(a) broke any causal link with the respondent's negligence; and

(b) constituted a novus actus interveniens.

 

RHMcL v. THE QUEEN (M95/1999)

Court Appealed from: Court of Appeal, Victoria

Date of Judgment: 9 October 1998

Date special leave granted: 10 September 1999

The appellant was found guilty of various sexual offences against two of his stepdaughters. The appellant had been tried jointly with his wife, who was also found guilty of two sexual offences involving those daughters.

The appellant was found guilty on 16 counts and not guilty on 2 counts. The appellant's total effective sentence was 12 years' imprisonment with a non-parole period of 10 years. The appellant sought to appeal against conviction and sentence, but on the first day of the appeal hearing abandoned the applications against sentence. The Court of Appeal allowed the appellant's appeal against conviction on 4 counts. Those convictions were quashed, sentences upon them set aside and a new trial was ordered. The Court further ordered that the sentences on the remaining counts and the non-parole period be set aside and then substituted terms of imprisonment. The total effective sentence substituted by the Court of Appeal on the remaining counts was 12 years' imprisonment with a non-parole period of 10 years.

The Court of Appeal substituted increased sentences because it thought the sentences passed below were manifestly inadequate once sentences accounting for a net period of 3½ years' imprisonment were removed. The appellant contends that s569(1) Crimes Act 1958 (Vic) does not permit this substitution.

The ground of appeal is:

• The Court of Appeal of the Supreme Court of Victoria erred in law in applying the provisions of Section 569(1) of the Crimes Act 1958 (Vic) to the sentences imposed upon Counts 3,4,8,9,10,11,12,16,18,19,20 and 24 of the presentment.

AGAR & ORS v. HYDE (S159/1999

AGAR & ORS v. WORSLEY (S160/1999)

Court appealed from: Supreme Court of NSW, Court of Appeal

Date of judgment: 19 October 1998

Special leave granted: 10 September 1999

The respondent in each of these matters is a young man who was seriously injured playing rugby union. Mr Hyde was hooker for Warringah Rugby Club playing Gordon Rugby Club in August 1986. He was 19 at the time. It is alleged that the Gordon forward pack in scrum formation charged the Warringah pack before it was set in position. Mr Hyde suffered severe spinal injury and resultant incomplete quadraplegia. Mr Worsley was also hooker, representing Wagga Agricultural Rugby Football Union when it played against the Rivcoll team in August 1987. He was 18 at the time. It was alleged that the Rivcoll forward pack engaged in scrum formation before Mr Worsley was ready to receive them and while his head and neck were at an awkward angle. He suffered severe spinal injury and resultant quadraplegia.

Both respondents commenced proceedings by statement of claim. The defendants to each matter included persons associated with the particular match in which each respondent was injured and persons concerned with the administration of rugby in Australia. These defendants are sued for negligence in the conduct of the particular football match or their responsibility for the rules under which it was played, including responsibility for failure to enforce the rules or to have them modified locally so as to require scrummaging to take place safely. These claims have not yet come to trial.

The present applications are concerned with attempts by the respondents to join a wider group of defendants (the appellants in the present proceedings) the International Rugby Football Board (the IRFB). The respondents sought leave to proceed against the IRFB pursuant to Part 10 Rule 2 of the Supreme Court Rules (which governs proceedings against defendants served outside Australia). The respondents wish to sue the IRFB for their failure, as the persons and bodies responsible for rugby at the international level in 1986, to ensure that the rules of rugby prevented or reduced the risk of injury to hookers in the type of incident that befell the respondents. They argue that the risk of such injuries could have been avoided by the adoption of rules to "depower" the engagement of scrums. It is alleged that the IRFB, as the persons and bodies responsible for administering the game of rugby, were subject to a duty of care owed to the respondents to amend the laws of the game to depower the engagement of the forwards in a rugby scrum. They fear that unless the IRFB defendants are included, the local defendants will defend the action on the basis that they were bound to apply the Laws of the Game promulgated by the IRFB.

The judge at first instance dismissed the respondents' applications to join the appellants and set aside service on the appellants on two distinct bases, namely: that the respondents had failed to establish that there was a good arguable case against the appellants in negligence because there was no relevant proximity between the parties to give rise to a duty of care, and; the applications were also refused by the trial judge in the exercise of the discretion vested in him by the provisions of Part 10 Rule 2. In declining to exercise the discretion, the judge had regard to the following circumstances: (a) that the exorbitant jurisdiction of requiring a foreigner to defend a claim before a court should be exercised with restraint, especially in a context where the claim was statute-barred under the municipal law; and (b) the difficulties faced by the respondents in establishing liability against the IRFB respondents.

The respondents applied for and obtained leave to appeal against these decisions and the Court of Appeal allowed the appeals and set aside the orders of the trial judge.

The grounds of appeal include:

• The Court of Appeal erred in finding that jurisdiction against the appellants had been established to the requisite level in accordance with Part 10 Rule 1A of the Supreme Court Rules by wrongly concluding that:

(1) The proceedings were properly founded on a cause of action in negligence;

(2) A duty of care was owed to the respondent in the circumstances;

(3) Any cause of action in negligence against the appellants arose in New South Wales; and

(4) The appellants had been properly joined as parties to the proceedings.

 

• The Court of Appeal erred in the formulation and application of the principles to be applied when leave is sought to join foreign defendants to local proceedings.

The appellants have filed a Notice of Motion seeking leave to rely on two additional grounds of appeal. These grounds are:

• The Court of Appeal erred in the formulation and application of the principles to be applied when leave is sought to proceed against a foreign defendant who has not entered an appearance or otherwise submitted to the jurisdiction; and

• The Court of Appeal erred in holding that, on an application for leave to proceed against a foreign defendant, it was not relevant to consider the merits or strength of the plaintiff's case other than for the purposes of satisfying itself that the case was not apt to be struck out.

FOSTER v. THE MINISTER FOR CUSTOMS AND JUSTICE (B92/1999)

Court Appealed from: Full Court of the Federal Court of Australia

Date of Judgment: 22 October 1999

Date of grant of special leave: 10 December 1999

In 1995 the appellant was prosecuted in the United Kingdom for false trading offences and sentenced to imprisonment. Whilst on leave from jail the appellant travelled to Australia under a false passport and name. He was arrested at Darwin airport and extradited to Queensland to face charges under the Corporations law. He was sentenced to imprisonment.

Upon his release the appellant was arrested pursuant to a provisional warrant issued under the Extradition Act 1998 (Cth). The appellant failed to appear at the extradition hearing and a Magistrate found the appellant eligible for surrender to the UK. Thereupon the respondent determined to surrender the appellant to the UK to stand trial on five charges. The UK authority later advised that it intended to proceed only with three of the charges. The respondent considered the extradition request in light of that change in circumstances and decided to order the appellant's extradition. It is this latter decision that the appellant seeks to review in these proceedings.

The appellant was unsuccessful at first instance.

The appellant appealed to the Full Court. The appeal essentially concerned whether the judge at first instance had correctly decided that the respondent had taken into account the matters that the regulations to the Extradition Act required to be considered. These were:-

(a) whether the offences with which the appellant remained charged were "trivial" so that extradition could not be said to be warranted; and

(b) whether extradition would, in the circumstances pertaining to the appellant, be "oppressive" or "too severe a punishment".

The appellant argued that the respondent might have misunderstood what was involved in the charges, and that the punishment was too severe because he had already been held in custody for some time in Australia. In a majority decision the appellant's appeal was dismissed.

The ground of appeal is:

• That the Full Court of the Federal Court erred in finding that the Minister is not bound under regulation 7(1) Extradition (Commonwealth Countries) Regulations 1988 (Cth) to take into account the nature and extent of the punishment to which it is likely that the person to be surrendered would be exposed if that person is convicted of the extradition offences.

(Other than Applications for Special Leave to Appeal)

APRIL 2000

YU SHING CHENG v THE QUEEN (A8/99)

GANG CHENG v THE QUEEN (A9/99)

CHAN v THE QUEEN (A25/99)

Court appealed from: Court of Criminal Appeal, South Australia

Date of judgment: 13 May 1999

All three applicants (together with 2 others) were charged with being knowingly concerned in the importation of a prohibited import, contrary to s233B(1)(d) of the Customs Act 1901 (Cth) ("the Act"). It was also alleged that the amount concerned was a "commercial" quantity thereby potentially attracting the highest range of penalties provided in s235 of the Act. The structure of the Act is that s233B prescribes the relevant offences and refers the reader to s235 for the appropriate penalty. The appropriate maximum penalty set out in s235 depends on the nature of the substance in relation to which the offence was committed, the quantity of the substance, in some cases whether there has been a previous conviction and in some cases the purpose for which the offence was committed. The applicants asserted that they were concerned with a small amount of prohibited substance, but unbeknown to each of them, the sealed items with which each was involved later turned out to have originally contained over 9 kilos of heroin.

The applicants sought to challenge, by way of demurrer, the validity of s233B(1)(d) in combination with s235, as being contrary to s80 of the Constitution. The applicants asserted that the decision of the High Court in Kingswell v. R (1985) 159 CLR 265 (which had previously upheld the validity of those provisions) was wrongly decided. The trial judge overruled the demurrer and upheld the provisions, following Kingswell. The applicants thereupon pleaded guilty to the charges. They were subsequently sentenced on the basis of being penalised for the full 9 kilos of the drug, notwithstanding that the sentencing judge accepted that each applicant positively believed he was only concerned with a small quantity. The applicants each appealed against conviction and sentence.

The applicants sought to argue before the Court of Criminal Appeal that s235 of the Act as it applied to them was unconstitutional as it purports to impair their right to trial, by jury, of every element of the offence alleged against them, such right being guaranteed by s80 of the Constitution. The Court of Criminal Appeal (Doyle CJ, Bleby & Wicks JJ) dismissed the appeals against conviction.

The questions of law said to justify the grant of special leave in each case are:

• Are sections 233B & 235 of the Customs Act 1901 (Cth) in reserving determination of the quantity of narcotic goods and hence the seriousness of the offence and the relevant penalty range to the judge rather than the jury contrary to section 80 of the Constitution 1901 (Cth); and

• Does the Crown have to prove beyond reasonable doubt: (a) knowledge that the quantity of narcotic goods was a commercial quantity; (b) a disputed factual circumstance as aggravating the offence.

• The applications for special leave came before Gaudron, Kirby & Hayne JJ on 8 October 1999 and at that hearing the applications were referred to an enlarged panel of the Court.

• Notices of Constitutional Matter have been given. The Commonwealth will be intervening at the referred hearing of these applications for special leave to appeal.

GRINCELIS v. HOUSE (C20/1999)

Court Appealed from: Full Court of the Federal Court of Australia

Date of Judgment: 1 July 1998

Date of grant of special leave: 8 October 1999

The appellant, then a Canberra Solicitor, suffered personal injuries including brain damage in a motor vehicle collision on 15 February 1989. This created a need for full time supervision and care. His damages included a component in respect of past care. Family members, on a gratuitous basis, had cared for the appellant. There was no applicable statutory restriction or modification to the calculation of damages for care.

The matter initially came before a Master of the Supreme Court of the Australian Capital Territory who made an award for damages which did not include interest on the past care component. There was an appeal and cross appeal to the Full Court of the Supreme Court, who varied the overall award but did not allow interest on the past care component. A further appeal and cross appeal to the Full Court of the Federal Court resulted in an award (by majority) of interest on past care at 2%, the rate for damages such as general damages, which are assessed as at the date of trial. The minority of the Court awarded interest on damages for past care at commercial rates.

The respondent has filed a notice of cross appeal.

The grounds of appeal are:

• That the Full Court misapplied the distinction between the rate at which interest should be calculated on damages for past loss in respect of:

(a) damages, such as general damages, which although referable in whole or in part to the past are assessed at values current at the date of trial (which attract an interest rate of 2%); and

(b) damages, such as damages for past care and past economic loss, which are calculated by reference to actual historical rates from time to time (which attract commercial interest rates).

The ground of the cross appeal is:

• That the Full Court erred in allowing any interest in relation to the damages awarded to the appellant for past services which had been provided to the appellant gratuitously.

JONES v. BARTLETT & ANOR (P59/1999)

Court Appealed from: Full Court of the Supreme Court of Western Australia

Date of Judgment: 22 February 1999

Date of grant of special leave: 21 October 1999

In November 1992, the appellant's parents entered into a Residential Tenancy Agreement under the Residential Tenancies Act 1987 (WA) to lease premises at Mount Pleasant owned by the respondents. The initial tenancy was for a period of 12 months upon the expiration of which the appellant's parents remained in possession of the premises under a periodic tenancy on a fortnightly basis, otherwise subject to the terms of the original Residential Tenancy Agreement.

The agreement provided for the use of the premises as a private dwelling to be occupied by not more than three persons. There was no requirement that the respondents or agent approve the third person.

Prior to the expiration of the initial 12 month period, the appellant went to live with his parents at the premises and remained there.

The premises was a house built in the late 1950's or early 1960's and there was a glass door from the dining room to the outside of the home. The door was constructed with a wooden frame and a full length glass pane which was not of laminated or strengthened glass. The glass was of the type recommended by the first Australian Standard in 1957 (which was concerned only with wind loads and not human impact). At the date the premises were let to the appellant's parents, the 1989 Australian Standard required replacement glass in such a door to be 10mm thick or toughened or laminated safety glass.

In November 1993, the appellant's mother went through the dining room door on her way outside. The appellant followed, wrongly assuming that the door was open as his mother had just used it. The appellant suffered a severe injury to his right leg caused by the shattering glass.

The appellant issued proceedings in the District Court of Western Australia for damages resulting from the respondent's:

(a) breach of the Residential Tenancy Agreement; and/or

(b) breach of the respondents' duties as landlords and occupiers; and/or

(c) breach of the respondents' common laws of duties of care saved by the Occupiers Liability Act 1985 (WA).

The appellant was successful, the District Court finding that the respondents owed a duty to the appellant pursuant to s5(1) of the Occupiers Liability Act 1985. There was an apportionment made for contributory negligence.

On appeal to the Full Court of the Supreme Court of Western Australia, the respondents were successful. Essentially, the Full Court held that the appellant's actions were the sole cause of the injury. The Full Court held that the respondents' failure to organise an expert inspection of the door did not constitute a breach of duty.

The grounds of appeal include:

• That the Full Court erred at law in concluding that the appellant could not enforce the "residential tenancy agreement".

• That the Full Court erred at law in concluding that the respondents had not breached the duties they owed as "occupiers" of the premises to the appellant as a lawful entrant pursuant to sub-section 5(1) of the Occupiers Liability Act 1985 (WA).

• That the Full Court erred at law and in fact in concluding that:-

(a) the risk that a person would walk into the door with sufficient force to shatter the glass pane was extremely unlikely; and

(b) there was a very remote prospect of a collision between a person and the glass in the door,because these conclusions were precluded by the proper inferences which could be drawn from the facts clearly ascertained at trial.

 

• The Full Court erred at law and in fact in concluding that this was not a case where the risk of injury being received would be reduced by a warning by the respondents to the appellant or his parents.

• That the Full Court erred at law in concluding that, if duties owed by the respondents as occupiers and landlords to the appellant pursuant to the Occupiers Liability Act 1985 (WA) were non-delegable, that such duties did not impose a "higher standard of care" pursuant to sub-section 9(3) of the Occupiers Liability Act 1985 (WA) thereby constituting an overriding common law duty owed by the respondents to the appellant.

• The Full Court erred at law in not overturning the Commissioner's finding of contributory negligence against the appellant.

PILMER & ORS v. THE DUKE GROUP LIMITED (IN LIQUIDATION) & ORS (A46/1999)

Court appealed from: Full Court, Supreme Court of South Australia

Date of judgment: 13 August 1999

Date of grant of special leave: 30 November 1999

This appeal arises from litigation relating to loss suffered by Kia Ora Gold Corporation NL ("Kia Ora") in its successful takeover bid for Western United. Prior to commencing the takeover procedure Kia Ora retained accountants practising in Perth under the name of Nelson Wheeler Perth ("NWP") to prepare a report for the shareholders in Kia Ora. The takeover offer proposed by Kia Ora to Western United Limited ("Western United") shareholders was four fully paid ordinary shares in Kia Ora for every fully paid ordinary share in Western United or five fully paid ordinary shares in Kia Ora for two fully paid ordinary shares in Western United together with $1.20 for each Western United share. In their report NWP concluded that the proposed takeover price was fair and reasonable in the circumstances and placed a value on Western United shares of $3.22 per share.

On 9 October 1987 Kia Ora sent out a notice to shareholders calling a meeting to vote on the proposed takeover. The meeting was scheduled to take place on 26 October 1987. On 19 October 1987 the stock market crash occurred, having an immediate adverse effect on the market price of Kia Ora and Western United shares and significantly reducing the value of Western United. Despite the stock market crash, Kia Ora's directors proceeded with the meeting on 26 October 1987, which resolved to authorise the directors to make the offer. The takeover was successfully completed by January 1988.

Kia Ora (now the Duke Group Limited (In Liquidation)) commenced proceedings against NWP. Kia Ora alleged that NWP had prepared the report negligently, in breach of the contract of retainer and in breach of its fiduciary duty to Kia Ora. Kia Ora alleged that it suffered loss as a result of the takeover resulting from the accountant defendants' breach of the alleged duties.

The trial judge (Mullighan J) found, inter alia, that NWP were negligent in the discharge of their obligations to Kia Ora and that they were liable to Kia Ora in contract and in tort. His Honour rejected Kia Ora's claim that there was a fiduciary relationship between Kia Ora and NWP.

NWP lodged an appeal from the trial judge's findings on liability. The plaintiff cross-appealed against the finding that there was no fiduciary relationship between Kia Ora and NWP. All the parties to the appeals challenged the trial judge's assessment of damages.

On 20 May 1999 the Full Court of the Supreme Court of South Australia (Doyle CJ, Duggan and Bleby JJ) delivered reasons for decision in the appeals. The Full Court upheld the trial judge's findings of negligence and breach of contract. The Full Court upheld the plaintiff's argument that NWP owed a fiduciary duty to Kia Ora. On 13 August 1999 the Full Court made orders dismissing the appeals brought by NWP.

On 30 November 1999 NWP were granted special leave to appeal from part of the judgment and order of the Full Court of the Supreme Court. The grant of special leave was limited to one ground concerning the quantification of damages.

The ground of appeal is:

• The Court below erred in law in holding that Kia Ora suffered loss by the issue and allotment of its shares to Western United shareholders as part of the consideration for the takeover of Western United whereas the Court below should have held that the Kia Ora did not suffer any loss by the issue and allotment of its shares to the shareholders of Western United.

 

 

SIMOS v. YATES (S29/1999)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 5 August 1998 & 30 November 1998

Date of grant of special leave: 12 February 1999

Proceedings were brought in the Federal Court by Yates Property Corporation (YPC) against legal advisers who had formerly acted for it in proceedings brought by it in the Land & Environment Court of NSW seeking compensation upon the resumption of certain land at Darling Harbour. The three respondents in the proceedings were Abbott Tout, the firm of solicitors on the record in the resumption proceedings; Theodore Simos, senior counsel and John Webster, junior counsel. The proceedings were primarily in negligence and for misleading and deceptive conduct. YPC also claimed it had been inadequately compensated in the resumption proceedings by virtue of the failure of its former advisers to pursue a claim for compensation based on the special value of the land to it. On 5 June 1997, the trial judge dismissed the application against all three respondents.

On 14 August 1997 the trial judge ordered that YPC pay the costs of the respondent on certain nominated bases. The trial judge also ordered that Ian Francis Yates, the principal of YPC who was not a party to the proceedings, be jointly and severally liable with YPC to meet the costs.

YPC appealed from the whole of the judgment of the trial judge. YPC and Ian Yates appealed from the judgment of the trial judge on costs. These three appeals were consolidated. On 7 October 1997 the Federal Court ordered that YPC provide security for costs in respect of each respondent to YPC's appeals. On 16 January 1998 that order was varied. YPC failed to provide security and on 13 February 1998 the Court ordered that YPC's appeals be dismissed.

Ian Francis Yates' appeal against personal liability for costs (the only appeal to which the appellant was a party) was heard on Friday 20 March 1998 by the Full Federal Court. The Full Court set aside the order for costs made in favour of Mr Simos against Ian Francis Yates.

Special leave to appeal was granted on the grounds, inter alia, that:

• that part of the judgment which allowed the appeal by Mr Yates gave no reasons for the proposed order in that regard; and

• the Court lacked power to set aside the final order of the trial judge.

SPIES v. THE QUEEN (S263/1999)

Court appealed from: Supreme Court of NSW, Court of Criminal Appeal

Date of judgment: 17 September 1998

Date of grant of special leave: 10 December 1999

The appellant, a director of Stirling Nicholas Duty Free Pty Limited (SNDF), was convicted under s176A of the Crimes Act 1900 (NSW) of the offence of defrauding the creditors of SNDF in their dealings with the company. (An alternative charge of an offence under s229(4) of the Companies Code concerning improper use of position by an officer of a corporation to gain an advantage was presented. However, as the appellant was convicted on the s176A charge and the second charge was an alternative, no verdict was taken on this charge).

The Crown case turned on the contention that the appellant caused SNDF to purchase the shares in Stirling Nicholas Holdings Pty Limited (SNH) with the purpose of making himself a secured creditor at the time when the company was about to go into liquidation and entered upon another transaction as a means to give the appearance of worth to the share deal. The direction to the jury was, broadly, that the jury was charged to find that the accused intended to defraud creditors. The appellant was sentenced to 18 months imprisonment to be served by periodic detention.

The appellant appealed. The Court of Criminal Appeal found that the direction which the trial judge had given to the jury was defective. It held that as a specific mechanism for the fraud had been identified, the jury should have been given a direction of the elements of knowledge that are implicit in that case. The trial judge should have directed the jury that the state of mind of the appellant encompassed at least an understanding of the circumstances which made the value of the shares fictitious. It held that the trial judge had failed to do this and allowed the appeal from the conviction.

The Court further found that the finding of the jury on the charge of intending to defraud creditors encompassed a finding that there was an improper use of position and that the objective of the transaction was intended to benefit the appellant. Therefore it held that it could be said that the jury was satisfied of facts which proved the appellant guilty of the alternative charge under s229(4) of the Companies Code. Accordingly, the Court (pursuant to s7(2) of the Criminal Appeal Act 1912) substituted for the verdict of the jury a verdict that the appellant was guilty of the alternative charge on the indictment.

The grounds of appeal include:

• The Court of Criminal Appeal erred in concluding that the finding of the Jury on a charge of fraud by the appellant must have encompassed a finding that there was improper use of the position of the appellant as a director within the meaning of s229(4) Companies Code (NSW), thus enlivening the Court of Criminal Appeal's power under the Criminal Appeal Act 1912 (NSW) s7(2) to substitute a verdict on the alternative charge made under s229(4) Companies Code (NSW).

• The Court of Criminal Appeal erred in concluding that the Jury's finding that the appellant had the requisite subjective intent to defraud the creditors of SNDF for s176A Crimes Act purposes was without more determinative of the objective test of intent under s229(4) Companies Code against the appellant.

• The Court of Criminal Appeal erred by equating a subjective intent on the part of the appellant to defraud the creditors of SNDF with an objective intent on the part of the appellant to improperly use his position to advantage himself as an officer of SNDF.

RE THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; EX PARTE AALA (S185/1999)

The prosecutor is an Iranian citizen. He arrived in Australia on 8 August 1991 on a visitors visa. He married in Australia on 17 September 1991, but is now divorced. On 13 August 1992 he attacked his wife with a knife and was convicted of malicious wounding and sentenced to 21 months imprisonment. On 8 September 1996 he was released from prison and taken into migration detention. He is still in migration detention.

On 20 August 1996 (shortly before his release from prison) the prosecutor applied for a protection visa. He claimed that should he be returned to Iran his life will be in danger. He sought to demonstrate that he had a well-founded fear of persecution for a Convention reason by reference to three particular sets of activities in which he had been involved over a span of almost twenty years. These were: work he had performed for Savak (the Shah's secret police) for approximately six months in 1973; support that he had given the Mujahadeen (the largest group opposing the government in Iran) in 1981 or 1982; and, illegal real estate activities in which he had been engaged between 1981 and 1988-9 which involved him in selling properties in Iran which had belonged to the Shah or members of the Shah's family.

The prosecutor's application for a protection visa was refused on 2 October 1996. On 4 October 1996 he applied to the Refugee Review Tribunal for a review of this decision. The Tribunal affirmed the decision. The prosecutor sought a review of that decision by the Federal Court. At first instance he was unsuccessful. He appealed and on 18 December 1997 the Full Federal Court ordered that the decision of the Tribunal be set aside and the matter be remitted to the Tribunal to be dealt with according to law. On 3 April 1998 the Tribunal differently constituted, and having heard further evidence from the prosecutor, again affirmed the decision to refuse the prosecutor a protection visa. The prosecutor made an application to the Federal Court for review. This application came before Branson J at first instance. On 17 December 1998 her Honour affirmed the decision of the Tribunal. An appeal to the Full Federal Court was dismissed on 3 June 1999.

The prosecutor seeks writs of prohibition, mandamus and certiorari against the Refugee Review Tribunal and the Minister for Immigration and Multicultural Affairs on the grounds that, inter alia, the decision of the Refugee Review Tribunal was made in breach of the rules of natural justice. The main basis for the denial of natural justice ground appears to be the prosecutor's contention that the (2nd) Tribunal misled him by making a statement that it had read all of the Federal Court papers and that this created a legitimate expectation that the hearing would be determined on the evidence before the Tribunal on the old and new Tribunal files and on the papers before the Federal Court. The prosecutor argues that part of the papers before the Federal Court were various letters that the prosecutor had sent off to the Federal Court.

On 21 December 1999 McHugh J granted an order nisi.

 

COAL & ALLIED OPERATIONS PTY LIMITED v. THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION & ORS (S158/1999)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 6 November 1998

Date of grant of special leave: 10 September 1999

In 1996 and 1997 the 2nd, 3rd and 4th respondents (the unions) and their members employed by the appellant at the Hunter Valley No 1 Coal Mine made industrial claims, supported by industrial action, on the appellant with respect to wages and conditions of employment at that mine.

In early 1997 the unions, by notice to the appellant, initiated bargaining periods pursuant to s170MI of the Workplace Relations Act 1996. The purpose of initiating the bargaining periods was the desire of the unions to negotiate an agreement in relation to the wages and conditions of their members at the mine. The existence of these bargaining periods meant that the Commission could not exercise arbitration powers in relation to any matter that was in dispute and that the unions had immunity from civil suit in relation to industrial action taken during the bargaining periods.

On 31 October 1997 the unions applied to the Commission for the termination of the bargaining periods under the Act. Boulton J found that the industrial action at the mine was threatening to cause significant damage to an important part of the Australian economy. He granted the applications and terminated the bargaining periods.

The appellant appealed from the orders terminating the bargaining periods, and on 29 January 1998 a Full Bench of the Commission upheld the appeal and ordered that the orders of Boulton J be quashed.

The unions then applied to the High Court for orders nisi for writs of prohibition, certiorari and mandamus in relation to the decision and on 23 March 1998 those applications were remitted to the Federal Court. The Full Federal Court on 6 November 1998 ordered the issue of writs of certiorari and mandamus directed to the Full Bench. The Full Court held that the Full Bench had no general supervisory role over the exercise of discretionary powers by single members of the Commission and that the appeal to the Full Bench in the present case was to be regarded as an appeal from the exercise of a discretion and governed by House v. The King (1936) 55 CLR 499. The Full Court held that the Full Bench had erred in determining that the appeal before it was by way of a re-hearing.

The grounds of appeal include:

• The Full Court erred in holding that the Full Bench had constructively failed to exercise jurisdiction under s45 of the Workplace Relations Act ("the Act"), and that this was a proper case for mandamus.

• In the circumstances where two members of the Full Bench had purported to apply House v. The King in the appeal before it, the Full Court erred in critically reviewing in the manner of a court of appeal the process by which the Full Bench held that the conclusions and findings at first instance in the Commission were not reasonably open on the evidence in the case.

• The Full Court erred in denying the proposition that, in an appeal under s.45 of the Act involving a decision under s.170MW of the Act, the Full Bench was entitled to review the facts found at first instance in the Commission and to assess, or to re-assess the sufficiency of those facts for the purposes of the relevant test contained in s.170MW.

(Other than Applications for Special Leave to Appeal)

MAY 2000

RE TRANSWORLD MARINE AGENCY NV; EX PARTE ROLFE (S176/1999)

RE ROLFE; EX PARTE TRANSWORLD MARINE AGENCY COMPANY NV (S196/1999)

The proceedings between Mr Rolfe and Transworld Marine Agency NV ("Transworld") began in the Supreme Court of Victoria on 2 September 1997. Mr Rolfe claimed damages for breach of contract against Transworld. On 8 September 1997, by order of Gillard J, the proceedings were transferred to the Federal Court pursuant to the provisions of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Vic) s5(1). Thereafter the proceedings continued in the Federal Court.

The matter was heard in the Federal Court by Tamberlin J. On 19 May 1998 he ordered that Transworld pay Mr Rolfe certain large sums of money together with interest. Transworld appealed to the Full Court of the Federal Court asserting various errors on the part of Tamberlin J. It sought substituted orders that Mr Rolfe's claim against Transworld be dismissed in its entirety. The appeal was heard by the Full Court on 2 and 3 November 1998. The decision was reserved. This Court's decision in Re Wakim was announced on 17 June 1999. That decision led to legislation in a number of the States designed to preserve, so far as is constitutionally possible, the status quo concerning parties affected by it.

Notwithstanding the decision in Re Wakim, the Full Court of the Federal Court proceeded to list its decision in the appeal for judgment. This occurred on 14 September 1999. The Court indicated that it would propose to announce orders allowing the appeal in part. However, it postponed the formalisation of its orders to allow the parties to file submissions on what should be done in the light of the decision in Re Wakim.

On 7 October 1999 Mr Rolfe filed an application for a writ of prohibition claiming relief on the ground that, in the light of the decision of the Court in Re Wakim, the Full Court of the Federal Court did not have jurisdiction to hear and determine the appeal.

In November 1999 Transworld filed an application seeking an order that the declarations and orders made by Tamberlin J, at first instance, be quashed in the event that the Court makes an order for prohibition in the terms claimed by Mr Rolfe. Transworld claims that should it be determined that the Full Court does not have jurisdiction to determine the appeal by Transworld against the orders of Tamberlin J, then Tamberlin J, likewise, did not have jurisdiction to make those declarations and orders. Transworld further claims that in the event that the orders made by Tamberlin J are an ineffective judgment within the meaning of s4 of the Federal Courts (State Jurisdiction) Act 1999 (Vic) and as such a valid judgment of the Supreme Court of Victoria by virtue of s6 of the Act, the Federal Courts (State Jurisdiction) Act 1999 (Vic) (and any corresponding legislation passed by the Parliament of any other State) is invalid as beyond the power of the Parliaments of any of the States.

Notices of a constitutional matter have been filed and served by the applicants in both proceedings. Most Attorneys-General have notified that they will intervene and have filed written submissions.

 

RESIDUAL ASSCO GROUP LIMITED v. SPALVINS & ORS (A5/2000)

Case Stated: 3 February 2000 by Gummow J.

On 20 April 1994 proceedings were issued by the plaintiff (formerly the Adelaide Steamship Company Limited) in the Federal Court against its former directors (the 1st to 5th defendants) and its former auditors (the 6th and 7th defendants) for recovery of loss caused by payment of the interim and final dividends in 1990. Between April 1994 and June 1999 the Federal Court made various interlocutory orders relating to pleadings etc. On 11 June 1999 the Federal Court gave leave to the plaintiff (Residual Assco) to further amend the statement of claim. The further amended statement of claim was filed and served on 16 June 1999.

On 17 June 1999 the High Court handed down judgment in the Re Wakim matters holding that the cross-vesting legislation purporting to confer jurisdiction in respect of State matters on the Federal Court was constitutionally invalid. On 12 August 1999 South Australia enacted the Federal Courts (State Jurisdiction) Act 1999 (the "State Jurisdiction Act"), which came into effect on 19 August 1999. On 21 September 1999 the Federal Court made an order staying the Federal Court proceedings. On 30 September 1999 the Supreme Court Rules were amended by inserting new SCR 123A regulating applications under the State Jurisdiction Act. Residual Assco applied to the South Australian Supreme Court for an order under the State Jurisdiction Act that the Federal Court proceedings be treated as a proceeding in the Supreme Court. The application was filed on 23 September 1999 and amended on 1 December 1999. The 2nd and 3rd defendants applied to have that application dismissed for want of jurisdiction, as did the 1st defendant. These defendants sought to challenge the jurisdiction or power of the Supreme Court under, and the constitutional validity of, the State Jurisdiction Act. The 4th to 7th defendants did not make any challenge and informed the Supreme Court accordingly.

Upon the application of the Attorney-General for South Australia, Gummow J on 3 February 2000 ordered that the proceedings pending in the Supreme Court of South Australia be removed into the High Court pursuant to s40 of the Judiciary Act 1903 (Cth). On that same date Gummow J stated a case for the consideration of the Full Court.

The questions reserved are:

1. Are section 11 of the Federal Courts (State Jurisdiction) Act 1999 (SA) and rule 123A.05 of the Rules of the Supreme Court of South Australia invalid?;

2. Are any one or more (and, if so, which) of sections 6, 7, 8 and 10 of the Federal Courts (State Jurisdiction) Act 1999 (SA) invalid?; and

3. If any of sections 6, 7, 8, 10 or 11 of the Federal Courts (State Jurisdiction) Act 1999 (SA) be invalid, as a consequence thereof, is another provision thereof (and, if so, which) invalid?

The 4th to 7th defendants will not be making any submissions to the Full Court.

Notices of a constitutional matter have been served. The Attorneys-General of the Commonwealth and all the States (except Tasmania) will be intervening.

 

SMITH v. AUSTRALIAN NATIONAL LINE LTD (P67/1998)

Court Appealed from: Full Court of the Supreme Court of Western Australia

Date of Judgment: 18 November 1998

Date of grant of special leave: 21 October 1999

The appellant was employed as a seaman under contract with the respondent, serving on a boat the "Australian Prospector". The respondent owned the boat.

The appellant alleged that on 7 December 1988, as the ship was entering a port in Japan, he was injured whilst working. The appellant claimed that the injuries occurred in the course of his employment and in breach of the respondent's duty to take reasonable care and in breach of an implied term of contract that the respondent would provide safe conditions of work.

On 9 November 1994, the appellant instituted proceedings in the District Court of Western Australia claiming damages against the respondent and against the Commonwealth of Australia for negligence and breach of contract. As an alternative, he claimed that until 23 December 1993, he had a vested right to bring an action for damages against the respondent for negligent breach of a duty of care and for a breach of a contract. He claimed that by the enactment of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) ("the Seafarers Act"), in particular s54, the Commonwealth acquired property from him (i.e. the right to bring a damages claim) other than on just terms, contrary to s51(xxxi) of the Constitution.

Section 54 of the Seafarers Act came into force on 24 June 1993. By virtue of the provisions of s13 of the Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992 (Cth) ("the Transitional Provisions Act") a substituted statutory form of action was created which allowed the appellant to bring a claim for damages of the kind recognised, within 6 months. The effect of this scheme was that the appellant's right to bring the substituted statutory cause of action for damages became time barred on 24 December 1993.

In the action, the respondent raised two defences. First, it contended that the appellant's claim was time barred by reason of s47A of the Limitation Act (1935) WA and second, it contended that the appellant was precluded from instituting proceedings against it by reason of s54 of the Seafarers Act.

An order was made in the Supreme Court for certain questions of law to be tried as preliminary issues as follows:

Whether, if the appellant is able to establish a claim against the respondent, such a claim is statute barred under the provisions of s47A of the Limitation Act (1935) WA; and
Whether s54 of the Seafarers Act read in combination with s13 of the Transitional Provisions Act is invalid and inoperative under the provisions of s51(xxxi) of the Constitution.
At the trial of these preliminary issues the first question was answered "yes" and the second question was answered "no". As a result, orders by consent were made dismissing the appellant's claims against the respondent and the Commonwealth.

The appellant was granted leave to appeal to the Full Court in relation to the questions and against the consent order. These appeals were heard together by the Full Court and the Attorney-General of the Commonwealth elected to intervene pursuant to notices given under s78B of the Judiciary Act 1903 (Cth). The Full Court answered the questions by allowing the appeal in part in answering "no" to both questions (majority decision). The appeal against the consent order was dismissed as a result of the answers to the questions. The effect is that the appellant's actions for negligence or breach of contract against the respondent remain dismissed.

The Attorney-General of the Commonwealth is intervening.

The grounds of appeal are:

• That the Full Court erred because s54 of the Seafarers Act and s13 of the Transitional Provisions Act which, in combination, have the effect of removing the appellant's right to bring an action or other proceedings against the respondent in respect of the personal injuries alleged to have been suffered by the appellant in the course of his employment with the respondent and caused by the negligence of the respondent, and so extinguish vested causes of action which arose under the general law, constitute an acquisition of property without just terms contrary to the provisions of s51(xxxi) of the Constitution and, for that reason, are thereby invalid and ineffective;

• That the Full Court erred in characterising the provisions of s54 of the Seafarers Act read with s13 of the Transitional Provisions Act as they applied in the circumstances of this case as merely modifying the limitation period which otherwise would have applied to common law actions for damages and which, as such, did not effect an extinguishment of the appellant's causes of action; and

• That the Full Court erred because if the provisions of s54 of the Seafarers Act read with s13 of the Transitional Provisions Act are invalid or are ineffective to extinguish or bar the appellant's vested rights of action against the respondent for damages for negligence as alleged, then the appeal from the decision of the registrar of the Supreme Court of Western Australia dismissing the appellant's action in consequence of the answers given to the questions of law by the learned judge at first instance in the decision under appeal to the Full Court should have been allowed.

JOHNSON v. JOHNSON (P19/1999)

Court Appealed from: Full Court of the Family Court of Australia

Date of Judgment: 31 March 1999

Date of grant of Special Leave: 21 October 1999

The appellant and respondent were married in 1979 and separated in 1994.

There had been several years of cohabitation prior to the marriage. The decree nisi of the dissolution of the marriage became absolute on 30 August 1996. The wife's application for property settlement was heard in the Family Court from February to June 1997 there being 63 days of evidence and 3 days of Counsel's addresses.

It was the respondent's case that apart from fairly substantial assets that the parties held in Australia, there were also substantial assets held overseas on behalf of the appellant principally by one Hedges who resided in Bahrain, or an entity or entities controlled by him. It was the appellant's case that there were no assets held for him outside Australia by any person or entity, and that he himself did not hold any assets outside Australia.

Early in the trial, and just prior to the appellant entering the witness box, the trial judge made a statement to the effect that he would rely principally on witnesses other than the parties and documents to determine where the truth lay. When Court resumed the following day, counsel for the appellant made an application that the trial judge disqualify himself. This application was dismissed.

In his judgment the trial judge reviewed evidence in relation to the respondent's claim that Hedges held assets on behalf of the appellant. The trial judge reached the ultimate conclusion that the appellant substantially owned the interest of Hedges where Hedges had an interest in any entity that the appellant controlled. The effect of this conclusion was to increase the size of the asset pool available for division between the parties from approximately $17million (within Australia) by a further sum of approximately $15million. The effect that this had on the overall division, meant that the respondent received the majority of the Australian assets.

The appellant appealed to the Full Court of the Family Court who found that the trial judge had made a number of errors of fact and partially upheld the appeal by making some corrections to the content and value of the asset pool. The Full Court, however, upheld the trial judge's ultimate conclusion on the basis that the errors of fact were not material. The Full Court also found that the specific statements made by the trial judge at the commencement of the appellant's evidence did not give rise to reasonable apprehension of bias.

The grounds of appeal are:

• That the Full Court erred in law in finding that the trial judge's statement, before the appellant gave evidence, that "I will rely, principally, on witnesses other than the parties in this matter – and documents – to determine where the truth lies" did not give rise to reasonable apprehension of bias;

• That the Full Court erred in law in finding that the impact of the statement was ameliorated by words preceding the statement; and

• That the Full Court erred in law in finding that the impact of the statement was ameliorated by a ruling in response to an application that the trial judge disqualify himself which ruling failed to acknowledge that the statement did give rise to a reasonable apprehension of bias.

CRAMPTON v. THE QUEEN (S233/1999)

Court appealed from: Supreme Court of NSW, Court of Criminal Appeal

Date of judgment: 1 June 1999

Date of grant of special leave to appeal: 19 November 1999

From 1978 to 1987 the appellant was a primary school teacher. He taught children with learning disabilities. A complaint was made in 1997 by one of the appellant's former pupils. The offence complained of was alleged to have occurred in the period between 31 July 1978 and 1 October 1978. The complainant gave evidence that the appellant called him into a storeroom located at the front of the classroom where he saw the appellant engaging in a sexual activity. The complainant did not participate in the sexual activity allegedly engaged in by the appellant. The appellant gave evidence and denied the facts alleged. He said that when he used the storeroom he never closed the door.

The appellant was charged with an offence of committing an act of indecency with a male person. The charge was brought pursuant to s81A of the Crimes Act (NSW) 1900. The failure of the complainant to complain for a long time resulted in a trial by jury which commenced about 20 years after the alleged events. The appellant was convicted. The jury were unable to reach verdicts in relation to another four counts on the indictment.

An appeal to the Court of Criminal Appeal (which did not raise the question of the elements of an offence under s81A of the Crimes Act (NSW) 1900) was unanimously dismissed.

Special leave to appeal was granted in respect of the following ground:

• The Court of Criminal Appeal erred in determining that the directions given to the jury by the trial judge on the delay of almost twenty years between the complaint and the conduct giving rise to it were adequate to meet the circumstances of the case.

• The application for special leave to appeal in respect of the grounds listed below was referred to the Full Court to be heard on the same day as the appeal with respect to the above ground. The parties were directed to be prepared to argue these grounds as if on appeal, but also to be prepared to argue matters relating to the power of an appellate court and the power of this Court with respect to points not taken below:

• The appellant was convicted of an offence under s81A of the Crimes Act (NSW) 1900 (in the terms in which that section stood in 1978) on the basis of evidence which clearly fails to establish the elements of that offence and which positively establishes that the offence charged has not been committed, either in the manner alleged or at all; and

• The directions given by the trial judge to the jury on the elements of an offence under s81A of the Crimes Act (NSW) 1900 were inadequate in that they failed to explain to the jury the true nature of such an offence.

(Other than Applications for Special Leave to Appeal)

JUNE 2000

RE MACKS & ORS; EX PARTE SAINT (A6/2000)

RE MACKS & ORS; EX PARTE JOHNSON & ORS (A9/2000)

The firstnamed 8th respondent (Macks) in each of these High Court proceedings is the liquidator of 64 companies comprising the Emanuel Group of companies, the secondnamed 8th respondents. Sixty-three of the 64 companies were wound up by orders of one of the 1st to 3rd and 5th and 6th respondents, being Judges and Registrars of the Federal Court of Australia, between June 1995 and January 1996.

On 8 December 1998 Mansfield J, the 4th respondent, made orders on the application of Macks (in Federal Court proceedings No. SG 3080 of 1995), confirming Macks' power, as liquidator of the Emanuel Group, to enter into a liquidator's funding arrangement with GIO Insurance Limited (GIO) and the Commonwealth Bank of Australia Limited (the CBA). Pursuant to this arrangement, Macks would borrow moneys from the CBA to fund certain actions in the Supreme Court of South Australia and the obligation to repay those moneys was insured by GIO. Two of those actions were Action No. 409 of 1998 and Action No. 410 of 1998. The applicant in the High Court proceeding A6/2000 (Saint) is a defendant in Action No. 409 of 1998. He was a partner in the firm of solicitors practising under the name Thomsons. The applicants in the High Court proceeding A9/2000 (Johnson & Ors) are defendants in Action No. 410 of 1998. They were partners in a firm of solicitors practising under the name Johnson Winter and Slattery (Johnsons). The Supreme Court actions claimed legal and equitable damages and an account of profits in respect of the participation by Thomsons and Johnsons in certain arrangements by the Emanuel Group in early 1995.

By the current proceedings each applicant contends that the 8th respondents should not be permitted to rely on the orders made in the Federal Court, as they were made in the purported exercise of jurisdiction conferred on the Federal Court of Australia by the cross-vesting scheme. On 17 June 1999 this scheme was held to be invalid by the High Court in Re Wakim. Each applicant seeks an extension of time to seek that a writ of certiorari should issue to quash the orders of the Federal Court made between June 1995 and January 1996. Prohibition is also sought, first, against the Federal Court, prohibiting it from taking any further steps to give effect to the orders or taking any steps to wind up the companies; and secondly, against the liquidator, prohibiting him from taking any steps in the winding-up of the companies, or in the prosecution of the Supreme Court actions.

On 19 August 1999, the Federal Courts (State Jurisdiction) Act 1999 (SA) came into force (the remedial legislation). The effect of the remedial legislation is to make any orders, previously made by the Federal Court and which would otherwise be "ineffective judgments" as a result of Re Wakim, valid judgments of the Supreme Court of South Australia.

Insofar as Macks has to rely on the remedial legislation to claim authority to proceed in the winding up, each applicant contends that the liquidator fails as the provisions are invalid as beyond the power of the Parliament of South Australia.

The validity of a number of sections in the South Australian remedial legislation was the subject of the proceedings in the High Court in A5/2000 Residual Assco Group Ltd v. Spalvins & Ors. On 25 May 2000 the Court pronounced orders (with reasons to be published at a later date) in A5/2000. The Court found that s11 of the remedial legislation was valid, but found it unnecessary to answer whether a number of other sections were invalid.

Macks contends that the orders of the Federal Court are not void, but voidable, as a consequence of Re Wakim. Macks contends that the orders remain valid and operative until such time as they are set aside. In the present cases Macks contends that the High Court should not grant the extension of time sought by each applicant in seeking certiorari because there has been substantial, unexplained delay and that numerous third party rights have intervened since the orders were made. Further, Macks submits that the Court, in any event, should not exercise its discretion in favour of each applicant to grant the relief sought because of the intervention of third party rights.

The Deputy Commissioner of Taxation, a substantial creditor of a number of the companies, commenced, or participated in, the winding up applications in the Federal Court. The Deputy Commissioner was joined as the 9th respondent to each proceeding, by order of Gummow J on 3 April 1999.

There have been a number of other proceedings in the Supreme Court of South Australia involving Macks, the Emanuel Group of companies and Saint and Johnson & Ors. Some of these have previously been the subject of applications seeking to remove the proceedings into the High Court on the basis that it was intended to challenge the validity of the remedial legislation. A31/1999, an application by the Attorney-General for South Australia, discontinued prior to hearing. A32/1999 and A8/2000, applications by Saint and Johnson & Ors respectively, were heard by the High Court on 24 March 2000 and were each dismissed as premature.

On 10 April 1999 Gummow J ordered that each application for prerogative relief be made by notice of motion to a Full Court.

Notices of a constitutional matter have been given and a number of Attorneys-General have indicated that they will be intervening. GIO has filed a notice of motion seeking to be joined as a party or, alternatively, seeking leave to intervene.

 

EBNER v. THE OFFICIAL TRUSTEE IN BANKRUPTCY (M131/99)

Court appealed from: Full Federal Court of Australia

Date of judgment: 10 March 1999

Date special leave granted: 9 December 1999

The respondent commenced proceedings seeking orders against the applicant, arising out of the transfer to the applicant by her husband (a bankrupt) of a half interest in certain land at Mount Eliza (the property). On the first day of the hearing the primary judge disclosed that a family trust of which he was a director owned some 9000 shares in the ANZ Bank. He noted that the ANZ Bank was not a party to the proceedings, but it was one of the creditors. After obtaining instructions, counsel for the applicant informed the Court that the ANZ Bank was funding the action "up to a certain level" and that the applicant objected to the judge hearing the case. The judge applied the relevant test as being a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party or another. The primary judge went on to conclude that there was no reasonable apprehension of such bias in the matter before him, and he proceeded to hear the matter. The primary judge declared that the registered transfer of a half interest in the property executed by Maxwell Ebner (the bankrupt) to his wife (the applicant) was void as against the respondent pursuant to ss120 and 121 of the Bankruptcy Act 1966 (Cth) (the Act).

The applicant appealed to the Full Court. One of the grounds was whether the primary judge ought to have disqualified himself by reason of his declared interest in a trust which, in turn, held shares in the Australia and New Zealand Banking Group Ltd (the Bank). The Full Court held that the primary judge did not have a direct pecuniary interest in the outcome of the litigation because the Bank was not a party to the proceedings. The applicant had also relied on the recent House of Lords decision in R v. Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) [ 1999] WLR 272 (Pinochet's case). However the Full Court distinguished it on the basis that Pinochet's case involved a non-pecuniary interest.

Special leave to appeal was granted limited to one ground.

The ground of appeal is :

• The Full Court erred in upholding the primary judge's ruling that he not disqualify himself on the basis that he had a direct pecuniary interest in the outcome of the proceeding.

CLENAE PTY LTD & ORS v. AUSTRALIA & NEW ZEALAND BANKING GROUP LTD (M2/2000)

Court appealed from: Court of Appeal, Victoria

Date of judgment: 9 April 1999

Date special leave granted: 9 December 1999

The respondent (the Bank) began proceedings claiming various amounts from the applicants, principally in connection with an advance made by the Bank to the first applicant of $AUD1 million in June 1985, in the form of foreign currency loans. The matter was heard by Mandie J over 18 days over a three-month period and judgment was reserved on 2 May 1996. On 14 July 1996 Mandie J's mother died. Mandie J and his brother were named as executors of her estate and probate was subsequently granted to them. By the will, Mandie J and his brother were bequeathed the deceased's residuary estate. This included 4,800 shares in the Bank and a debenture for $200,000 secured over the assets of Esanda Finance Corporation Limited (Esanda). Esanda was a wholly-owned subsidiary of the Bank. In October 1996 Mandie J was registered as shareholder of 2,400 shares in the Bank. Judgment was delivered on 9 October 1997, in which each of the applicants' claims that the Bank had acted in breach of the various obligations alleged against it, were rejected. On 10 October 1997, his Honour made orders. Shortly thereafter the applicants' solicitors ascertained that Mandie J and his brother were the registered owners of the shares in the Bank.

The applicants appealed to the Court of Appeal. Their first argument was that the trial judge was disqualified from giving judgment by reason of direct pecuniary interest. They contended that if a judge had a direct pecuniary interest in the outcome of the proceedings, automatic disqualification resulted and that direct pecuniary interest was established by the shareholding in the Bank, however small. The Court dismissed the appeal. Charles JA (with whom Winneke P agreed), after reviewing the authorities, doubted whether the so-called "automatic disqualification" rule by reason of direct pecuniary interest had survived the development by the High Court of the "reasonable apprehension on the part of a fair-minded and informed observer" test. If there was a separate rule, unrelated to a reasonable apprehension of bias, Charles JA was of the view that the irrebuttable presumption only arises (subject to questions of waiver or necessity) where the judicial officer has a direct pecuniary interest in the outcome of the proceeding. On that test Charles JA would have concluded that the trial judge's interest in the Bank would not have been affected by the outcome of the proceedings. Applying the "reasonable apprehension" test to the present case did not lead to the conclusion that the judge ought to have disqualified himself from giving judgment. Charles JA referred to the judgment of the Full Federal Court in Ebner's case, given after the appeal was heard. He did not agree with that Court's assumption (probably obiter in any event) that any shareholding, however small, in one of the parties to the litigation was sufficient to disqualify the judge. Callaway JA held that even if the trial judge was disqualified, the judgment should not be set aside having regard to the circumstances of the trial and the death of one of the crucial witnesses. Both Winneke P and Charles JA agreed with this view.

The grounds of appeal are:

• Their Honours erred in holding that the trial judge was not disqualified by virtue of his holding shares in the respondent; and

• Their Honours erred in holding that the doctrine of necessity applied.

RYAN v. THE QUEEN (S248/1999)

Court appealed from: NSW Court of Criminal Appeal

Date of judgment: 2 March 1998

Date of grant of special leave: 30 November 1999

The appellant pleaded guilty before Nield DCJ to a large number of offences which had been committed against young boys with whom he came into contact as a priest in the Newcastle area. The offences were committed over a period of about 20 years. In consequence of his pleas of guilty, the appellant was sentenced by Nield DCJ to a total effective sentence of 16 years comprising a minimum term of 11 years and an additional term of 5 years, the sentences to commence on 23 May 2000.

The appellant had been dealt with earlier (30 May 1996) by Rummery DCJ for 20 similar offences. On that occasion he was sentenced to imprisonment for a total of 6 years involving a minimum term of 4 years and an additional term of 2 years. The sentences imposed by Nield DCJ were made cumulative upon the sentences imposed by Rummery DCJ. Accordingly, the appellant was sentenced to a total effective period of 22 years penal servitude to date from 23 May 1996.

The earlier sentencing proceedings and a subsequent unsuccessful appeal had been accompanied by considerable publicity. As a consequence of that publicity 3 men, who as children had been victims of the appellant many years previously, came forward and gave information to the police. When the police interviewed the appellant, who was by that time in custody, he made admissions concerning the new allegations and in addition informed the police of a great number of other offences and victims. There was no evidence to suggest that any of these additional victims volunteered by the appellant had proposed to come forward to the police.

Nield DCJ said that the appellant's admissions of previous undisclosed crime went to his credit, showed his contrition and entitled him to a discount in punishment. His Honour did not identify the extent of the discount which was said to have been extended to the appellant. A number of testimonials were tendered to Nield DCJ who observed that the appellant's unblemished character and reputation did not entitle him to any leniency whatsoever.

The appellant appealed against sentence to the Court of Criminal Appeal (CCA) on the grounds that the sentence was, in the circumstances, gross and excessive and that the judge did not take into account nor give proper weight to the subjective features of the case.

The CCA found that the sentences imposed were severe, but the objective criminality involved in his behaviour was extreme. The appeal was dismissed.

The grounds of appeal include:

• The Court of Criminal Appeal erred in concluding that the overall sentence imposed upon the appellant was not manifestly excessive having regard to the relevant matters to be taken into account for the purpose of sentence;

• The Court of Criminal Appeal erred in finding that the sentence imposed upon the appellant took sufficient account of the subjective case of the appellant;

• The Court of Criminal Appeal erred in assessing that the learned sentencing judge took into account or gave sufficient credit to the appellant for the appellant's very substantial disclosure of offences which were not otherwise known to the authorities; and

• The Court of Criminal Appeal erred in upholding a severely retributive sentence for offences which were not known apart from the offender's confession.

 

Full Court Matters

(Other than Applications for Special Leave to Appeal)

BRISBANE CIRCUIT SITTINGS

JUNE 2000

PP CONSULTANTS PTY LTD v. FINANCE SECTOR UNION OF AUSTRALIA (S104/2000)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 10 September 1999

Date of grant of special leave: 14 April 2000

The appellant seeks special leave to appeal from a decision of the Full Court of the Federal Court on the construction of s149(1)(d) of the Workplace Relations Act 1996 ("the Act").

Until September 1997, the St George Bank ("the bank") operated one of its branches from premises in a shopping centre at Byron Bay, New South Wales. PP Consultants ("the appellant") operated a pharmacy in the same shopping centre.

On 10 September 1997 the appellant entered into a so-called "bragency" agreement with the bank. This agreement was to provide a "bragency" of the bank within the Pharmacy operated by the appellant located in Byron Bay. On 12 September 1997 the bank closed its branch office.

The appellant employed two of the bank's previous employees, one of whom was Mrs Patricia Moffatt. The respondent applied to the Federal Court for declarations that the appellant, by virtue of s149(1)(d) of the Act, was a successor, assignee or transmittee of part of the business of the bank so as to bind the appellant with the St George Bank Employees Award in respect of the employment of Mrs Moffatt.

At first instance the trial judge refused to order such declarations. An appeal to the Full Court was successful. The approach taken by the appellant before the Full Court concentrated on the nature of the transaction between the old employer and the new employer, while the respondent's approach was to look at the degree of identity between the activities carried out by the two employers. The Full Court favoured the latter approach and the matter was remitted to the trial judge for further hearing and determination.

The grounds of appeal are:

• The Full Court erred in holding that the question whether an award of the Australian Industrial Relations Commission was binding by operation of s149(1)(d) of the Workplace Relations Act 1996 was to be determined only by the degree of identity between the activities of the two employers concerned;

• The Full Court erred in holding that the words "part of a business" in s149(1)(d) denote "a particular bundle of activities that constitute an identifiable portion of the total activities that constitute a business" previously carried out by the successor, assignor or transmittor;

• The Full Court erred in failing to hold that for the purposes of s149(1)(d) the part of a business under consideration must itself constitute a business; and

• The Full Court erred in holding that the appellant was, within the meaning of s149(1)(d), a successor, assignee or transmittee to or of the business or part of the business of St George Bank Limited.

CONCUT v. OFFICIAL TRUSTEE IN BANKRUPTCY (B85/1999)

Court Appealed from: Court of Appeal of the Supreme Court of Queensland

Date of Judgment: 5 February 1999

Date of grant of special leave: 30 November 1999

The appellant employed Mr Geoffrey Wells (of whose estate the respondent was trustee), some time prior to 1980. In November 1980 Mr Wells was appointed as Queensland manager of the appellant's business pursuant to an oral agreement. On 1 December 1986 the appellant and Mr Wells entered into a written contract recording the terms and conditions of employment of Mr Wells as Queensland manager of the appellant.

The agreement was for a term of five years and included a term that the employee "... shall serve the company faithfully and diligently and use his utmost endeavours to promote the interests of the company ...". Mr Wells' employment was terminated on 1 February 1988. Subsequently, the appellant became aware of conduct by Mr Wells that had probably occurred during the time that Wells was employed under the oral agreement, ie prior to 1 December 1986. It was significant misconduct, sufficient to justify the termination of Wells' employment.

Mr Wells commenced proceedings in the District Court of Queensland, for damages for unlawful termination of his employment contract. The damages included the balance of the remuneration he would have received if he had been able to continue performance of his contract for the balance of its five year term. The appellant counterclaimed for damages for breach of the employment contract. The appellant was successful at first instance.

On appeal, Mr Wells submitted that the 1986 contract stood apart from the earlier oral contract, that his misconduct had only breached the earlier contract, and that, as he had no duty to disclose his earlier misconduct, the appellant was not entitled to terminate his existing contract. The appeal was allowed by a majority, Shepherdson J dissenting.

The respondent's solicitors have filed a notice of motion seeking to substitute Ivor Worrell and Morgan Lane (now the registered trustees in the bankruptcy of Mr Wells) as the named respondents.

The grounds of appeal are:

• That the majority of the Court of Appeal erred in law in concluding that the Appellant was not entitled to terminate the employment of the Respondent and, in particular, that the Appellant was not entitled to terminate the employment of the Respondent by reason of misconduct of the Respondent on the ground that a new written contract had been entered into between the parties after the occurrence of misconduct, even though:

1. the Appellant was wholly unaware of such misconduct at the time of entry into that new contract; and

2. the prior undisclosed and unremedied misconduct by the Respondent was inconsistent with the continued existence of the relationship of confidence between employer and employee;

• That the majority of the Court of Appeal erred in law in proceeding to that conclusion on the basis of a principle that the obligation of fidelity by an employee to an employer does not require the disclosure and rectification of past breaches of the obligation of fidelity by the employee in respect of the same employer where disclosure or rectification would require the employee to incriminate himself or herself; and

• That the majority of the Court of Appeal erred in law in concluding that it was not impliedly warranted in a contract of employment entered into as replacement for, or an extension of, an existing contract of employment, that the employee was not then guilty of any undisclosed misconduct inconsistent with the relationship of confidence between employer and employee.

MONEYWOOD PTY LTD v. SALAMON NOMINEES PTY LTD (B22/2000)

Court Appealed from: Court of Appeal of the Supreme Court of Queensland

Date of Judgment: 22 December 1998

Date of grant of special leave: 10 March 2000

The respondent was the registered proprietor of undeveloped land. On or about 1 March 1994, the respondent orally appointed the appellant (trading as an office of LJ Hooker) as its agent to find a buyer for the land. On 31 March 1994, the respondent entered into a contract to sell the land to BMD Constructions Pty Ltd for the price of $6,825,000 ("the original contract").

The original contract contained clause 30 of the standard conditions of sale adopted in Queensland by the Real Estate Institute of Queensland and approved by the Queensland Law Society. The contract named the appellant as the vendor's agent.

After entry into the original contract, but prior to settlement, the local Council indicated an intention to acquire a portion of the land. In order to save stamp duty on the purchase price of the whole land, two new contracts were entered into with the respondent, one by the Council to purchase a portion of the land and the other by the original purchaser for the balance of the land. The purchase prices were roughly apportioned.

The original contract was not terminated since the respondent was anxious to preserve it in case the two new contracts failed.

The new contracts also incorporated the standard conditions; however, no vendor's agent was named. As a result the respondent refused to pay commission to the appellant in relation to the sales.

The appellant sued the respondent for the commission and at first instance the appellant succeeded in the District Court and recovered the commission plus interest.

On appeal to the Court of Appeal, the majority held that the respondent could successfully defend the appellant's claim for commission by relying on s71(1)(c) of the Auctioneers' and Agents' Act 1971 (Qld) which provides:

"No person shall be entitled to sue or recover or retain any fees, charges, commission, reward or other remuneration for or in respect of any transaction as ... a real estate agent, ... unless –

(c) the engagement or appointment to act as ... real estate agent ... in respect of such transaction is in writing signed by the person to be charged with such ..., or the person's agent or representative ...".

The majority of the Court of Appeal found that the appellant was precluded from receiving commission on the sale which was the subject of the second contract as the appointment of the agent as evidenced by the original contract did not constitute an appointment "in respect of " that sale.

The respondent has filed a notice of contention.

The grounds of appeal are:

• That the Court of Appeal erred in finding that, in order to satisfy s76(1)(c) of the Auctioneers' and Agents' Act 1971 (Qld) ("the Act"), the appointment of an agent was required to contain documentary evidence which had specific reference to the very transaction out of which the claim for commission arises; and

• That the Court of Appeal erred in concluding that the appointment, evidenced by clause 30 of the contract of sale of land from the Respondent to BMD Constructions Pty Ltd ("BMD") dated 31 March, 1994 was specific only to that contract and did not operate to satisfy section 76(1)(c) of the Act in respect of a subsequent contract for the sale of land from the Respondent to BMD dated 14 June, 1995.

The respondent contends:

That the appellant did not earn its commission because it was not the effective cause of the sale of part of the land to BMD Constructions Pty Ltd.

 

 

(Other than Applications for Special Leave to Appeal)

AUGUST 2000

McCANN & ORS v. SWITZERLAND INSURANCE AUSTRALIA LIMITED & ORS (S229/1999)

Court appealed from: Supreme Court of NSW, Court of Appeal

Date of judgment: 27 August 1999

Date of grant of special leave: 19 November 1999

From October 1989 Ronald Powles was the resident partner in London of Allen, Allen and Hemsley (Allens) where he became interested in the prime bank instrument market (the pbi market). In order to carry out his investment activities Powles established an account with the London branch of Westpac. This account was opened without the authority of Allens and the operation of the account was a fraud on Powles' partners. It was used as a vehicle for dealings in the pbi market from which Powles was to obtain secret profits and commissions.

A transfer of US$8.7 million from the Nauru Phosphate Royalties Trust (the Nauruan Trust) was made into the Wespac account on 23 December 1991. On 31 December 1991, Powles instructed Westpac to draw US$8.55 million from the account for the purchase of a letter of credit. The delivery of the security failed to materialise. The monies were transferred to the Commonwealth National Bank Ltd in Antigua and eventually the funds went from the Commonwealth to a Swiss Bank. The funds became the subject of numerous transactions involving two other Swiss banks. Powles made demands on the Commonwealth for the return of the funds to no avail. The funds had been lost and Powles sought to conceal what was occurring from the Nauruan Trust by sending false and misleading reports until the Trust complained to Allens in Sydney in October 1992.

The Nauruan Trust brought proceedings against Allens for recovery of the US$8.55 million paid away by Powles. The appellants, the partners in Allens, claimed on the respondents for an indemnity in respect of their liability to the Nauruan Trust under their professional indemnity policies. The judge at first instance found that Powles had acted dishonestly, but that the liability of Allens was brought about by thieves who stole the US$8.55 million, not by Powles' conduct. He held that the appellants were entitled to be indemnified by the respondents for their losses.

The Court of Appeal found that Powles had acted dishonestly and probably fraudulently and that his conduct constituted the breach of duty from which the loss flowed, irrespective of whether that conduct brought about the loss. It held that the appellants were responsible for all loss flowing from the dishonest breach by Powles of his fiduciary duty, including loss caused through the deliberate acts of third parties. The Court held that the appellants rather than the respondents, their insurers, were liable to cover their own losses.

The grounds of appeal are:

• The Court of Appeal erred in finding that a clause in a professional indemnity insurance policy taken out by the appellant and those he represents which excludes indemnity in respect of any liability "brought about by the dishonest or fraudulent act or omission of the Assured" applied where the loss for which the insured was liable was not brought about by the relevant act or omission although the relevant liability flowed from that act or omission according to the appropriate concept of causation under the general law; and

• The Court of Appeal erred in finding that Powles' dishonest and fraudulent conduct, rather than the theft by others of moneys deposited by Powles with the Commonwealth National Bank, was that which brought about the liability with respect to which the appellant and those he represents sought indemnification.

MELWAY PUBLISHING PTY LTD v. ROBERT HICKS PTY LTD (TRADING AS AUTO FASHIONS AUSTRALIA) (M1/2000)

Court appealed from: Full Federal Court of Australia

Date of judgment: 20 May 1999

Date special leave granted: 10 December 1999

The appellant has for over 30 years published the Melway street directory for Melbourne. The product has about 85% of the retail market for Melbourne street directories. Except for a period in 1989-1990, Melway has been distributed by authorised wholesalers which deal in particular retail markets. The appellant charged the same price for its directories to each of its authorised wholesalers, which were free to make whatever pricing arrangements they wished with their customers.

The respondent was a wholesaler of the product to the automotive parts retail market. In February 1995 the appellant gave notice of termination of the respondent's distributorship effective from 30 June 1995. Prior to this the partners in the business of the respondent had a falling out. The departing partner started a new business and was appointed as distributor for the market sector which had been serviced by the respondent. In March 1995, while still in dispute about the termination, the respondent requested supply of over 30,000 directories from the appellant, for distribution as the respondent saw fit, i.e. outside the existing distribution structure set up by the appellant. The appellant refused supply and the respondent commenced proceedings, arguing that the appellant took advantage of its substantial market power for the purpose of preventing competition, contrary to s46 of the Trade Practices Act 1974 (Cth).

Merkel J found that in refusing to supply the respondent, the appellant had taken advantage of its market power. He further found that it was for a proscribed purpose, namely the purpose of preventing the respondent from engaging in competitive conduct in respect of the Melway directories with existing Melway distributors. The appellant appealed to the Full Court. The Court (Sundberg and Finkelstein JJ, Heerey J dissenting) dismissed the appeal. Heerey J considered that because Melway had operated a segmented distribution system from the commencement of its business in 1966, when it did not have market power, its refusal to supply in 1995, when it did have market power, did not amount to a taking advantage of its power. Sundberg and Finkelstein JJ each considered, as had the trial judge, that Melway's refusal to supply was only made possible because of the absence of competitive conditions.

The grounds of appeal include:

• The majority erred in proceeding upon that basis that a supplier with market power necessarily takes advantage of that power when it declines to sell its product by wholesale to a person who is not part of its distribution network; and

• The Full Court erred in finding that the purpose of the appellant in declining supply was to prevent the respondent from engaging in competitive conduct in respect.

COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v. PAYNE (S252/1999)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 30 March 1999

Date of grant of special leave: 10 December 1999

The respondent taxpayer had two sources of assessable income in the financial years 1991 to 1994. One was his salary as a pilot employed by Qantas. The other was his earnings from a deer farming business conducted by him on a property at Duri near Tamworth where he also resided. He travelled regularly from the farm property to the airport at Mascot. He claimed that he was entitled to deduct the cost of this travel and associated accommodation expenses as having been incurred in "gaining or producing the assessable income" within the meaning of s51(1) of The Income Tax Assessment Act 1936 (Cth) (the Act).

The appellant issued assessments in respect of those tax years which disallowed certain travelling expenses claimed as deductions pursuant to s51(1) of the Act. The respondent lodged objections against the amended assessments. These were disallowed. The respondent appealed to the Administrative Appeals Tribunal (the "AAT") which upheld the decision of the appellant. The AAT accepted that the expenses in question were necessary for the production of assessable income, in the sense that earning of income from both places would not be possible without expenditure upon travel between them. Nevertheless, it denied the claim for a deduction upon the basis that the travel expenses were not part of the cost of running the deer farming business nor were they incurred in the performance of the taxpayer's duties as a pilot. They did no more than place the taxpayer in the position where he could earn assessable income as a deer farmer in Tamworth and as a pilot in Sydney. The causal nexus was not sufficient to entitle the taxpayer to a deduction under the first limb of s51(1). The AAT said that the position would be otherwise if the travel was between two related places of business.

The respondent appealed to the Federal Court and the judge at first instance allowed the appeal. The appellant appealed to the Full Federal Court which (by majority) dismissed the appeal, holding that the Court was not precluded from concluding that travel between two unrelated places of business or employment can be deductible pursuant to s51(1) of the Act. Justice Hill, in the minority, found that "where the expenditure has no connection with either income producing activity which the taxpayer carries on and is not a working expense of either activity, the conclusion that it was incurred in, that is to say, in the course of gaining or producing assessable income is logically untenable."

The grounds of appeal include:

• Their Honours erred in law in holding that a taxpayer travelling from one place of business or employment, at which he or she derives assessable income, to another such place, in order to conduct unrelated activities from which he or she will also derive assessable income, ordinarily is "travelling on his (or her) work, as distinct from travelling to his (or her) work".

• Their Honours erred in law in holding that it does not matter that "the work" is for different employers, or involves one or more businesses, or spans different occupations; and

• Their Honours should have held that expenses of travelling between two places at which unrelated income earning activities take place are not deductible pursuant to s51(1) of the Income Tax Assessment Act, 1936 (Cth).

Full Court Matters

(Other than Applications for Special Leave to Appeal)

ADELAIDE CIRCUIT SITTINGS

AUGUST 2000

APPEALS

DINSDALE v. THE QUEEN (P42/2000)

Court Appealed from: Court of Criminal Appeal of the Supreme Court of Western Australia

Date of Judgment: 2 February 1999

Date of grant of special leave: 14 April 2000

On 24 September 1998, after a trial before a jury, the appellant was convicted on one count of sexually penetrating a child under the age of 13 and one count of indecently dealing with the child. The evidence supporting the charges was given by a 12 year old girl who was 10 at the time the offences were committed.

On 2 October 1998, the appellant was sentenced to 18 months' imprisonment on the first count and 18 months' imprisonment on the second count to be served concurrently with count one. An order was made that both sentences were to be wholly and immediately suspended under s76 of the Sentencing Act 1995 (WA).

The Crown appealed against the sentences and the Court of Criminal Appeal unanimously allowed the appeal and set aside the sentence imposed for the offence of sexual penetration. In lieu thereof, the Court made an order that the appellant be sentenced to a term of 30 months' imprisonment with eligibility for parole. The order for the suspension of the term of imprisonment was set aside.

The grounds of appeal are:

• The Court of Criminal Appeal erred in allowing the Crown appeal against the length of sentences imposed by the sentencing judge, when, in his sentencing reasons and decision, he made no express or implied error of law or fact;

• The Court of Criminal Appeal erred in allowing the Crown appeal against the order of suspension of the sentences imposed as:

(a) it could not be shown the sentencing judge had erred in exercising the discretion to suspend the sentences;

(b) The Court of Criminal Appeal was in error in deciding there was no evidence of rehabilitation;

(c) The Court of Criminal Appeal was in error in deciding the appellant's otherwise good character and the effect of an immediate sentence of imprisonment on the appellant's family were not relevant to the exercise of his Honour's discretion; and

(d) The Court of Criminal Appeal erred in attempting to proscribe or limit the circumstances in which, and factors relevant to, and order of suspension of imprisonment being appropriately made, and thus placed an unwarranted fetter on the exercise of the discretion to suspend a sentence under ss39 and 76 of the Sentencing Act 1995 (WA).

 

MODBURY TRIANGLE SHOPPING CENTRE PTY LTD v. ANZIL & ANOR (A16/2000)

Court appealed from: Full Court, Supreme Court of South Australia

Date of judgment: 12 August 1999

Date special leave granted: 24 March 2000

The appellant is the proprietor and lessor of the Modbury Triangle Shopping Centre ("the Centre"). The respondents are husband and wife. The first respondent (Tony) was employed by Focus Video Pty Ltd, a tenant of the appellant, as a co-manager of a video store in the Centre. The video shop faced the carpark which had four large lighting towers. Until about a year before the incident the subject of the proceedings, the lights would be left on until 11.00 pm. However, for some months prior to the incident in which Tony was injured, the carpark lighting had been turned off prior to the closure of the video shop. With the tower lights off at night the carpark and the area near the video shop was very dark. The video shop had complained on a number of occasions to the Centre management about the lack of lighting in the carpark whilst the video shop was open at night and at its closing time. It was Tony's practice when he left the video shop to check to see if anyone was about. If there was he would not leave the shop until that person had gone. In July 1983, after closing the shop at about 10.30 pm, Tony walked across the carpark towards his car (about 10 metres), after first checking that no one was around. He was violently attacked by three assailants carrying a baseball bat and badly injured. He brought an action in negligence against the appellant. Liability was in issue. The quantum of his damages was agreed at $205,000. The trial judge found in Tony's favour.

The appellant appealed on various grounds which, in effect, raised two matters. One, that the appellant did not owe a duty of care to Tony and two, that if there was such a duty and the appellant was in breach of that duty, there was no causal link between the breach and the injury sustained. The Full Court agreed with the trial judge that there was a duty of care owed by a landlord to a tenant and, at least, to the employees of the tenant. The Full Court found that the extent of the duty here was to ensure that sufficient lights were on when workers and customers were at the Centre and that the duty had been breached. On the issue of causation the Full Court upheld the trial judge's conclusions that the failure to keep the lights on created the very situation in which the attack was likely to occur. The Full Court dismissed the appeal.

The grounds of appeal include:

• The Full Court erred in finding that the scope of the duty of care owed by a commercial landlord to a tenant (or person claiming through a tenant) extended to the exercise of reasonable care to protect the tenant (or person claiming through the tenant) from the risk of physical injury caused by the criminal acts of third parties; and

• The Full Court erred in finding that the absence of lighting in the car park on the night in question was a cause of attack upon the first respondent and of the first respondent's.

SLIVAK & ANOR v. LURGI (AUSTRALIA) PTY LTD & ANOR (A18/2000)

Court Appealed from: Full Court, Supreme Court of South Australia

Date of Judgment: 18 June 1999

Date special leave granted: 12 May 2000

The first appellant (Slivak) and his wife, the second appellant, claimed damages from the first respondent (Lurgi) for personal injuries Slivak received in the course of his employment. The second respondent is Lurgi's insurer. The Broken Hill Proprietary Company Limited ("BHP") entered into a contract with Lurgi for the design, supply, erection and commissioning of a fume extraction system for a blast furnace operated by BHP at Whyalla. Under the contract Lurgi accepted responsibility for the whole project, including a general responsibility to BHP for the safety of the works and for safe working conditions. Slivak was employed by Lucon (Australia) Pty Ltd, who had contracted with Lurgi to carry out work on the project. Slivak and another worker were positioning a steel plate, prior to it being welded into its permanent position, in a tower which had been erected as part of the works. The plate fell; Slivak and his co-worker fell to the bottom of the tower and were injured.

Slivak's claims were based both in tort and on a breach of the duty imposed on designers of the industrial plant pursuant to s24(2a)(a) of the Occupational Health, Safety and Welfare Act 1986 (SA). The trial judge found the plate fell because the plate and its supports were not constructed in accordance with Lurgi's construction drawings, reducing to a dangerous level the overlap of the plate on its supports. Slivak contended that the statutory duty to ensure safety required the adoption of safety precautions which are simple and inexpensive relative to the cost and nature of the enterprise, even if the degree of risk is not high enough to be recognised in current industrial practices or to attract common law liability. The trial judge dismissed Slivak's claims.

Slivak appealed to the Full Court, which dismissed his appeal. The Court did not accept that a prudent designer should have anticipated the risk of exceeding the design tolerances during construction and should have incorporated features to safeguard against that possibility.

The grounds of appeal include:

• The Full Court erred in its construction of s24(2a)(a) of the Occupational Health Safety and Welfare Act 1986 (SA) which requires a person who designs any structure to "ensure so far as is reasonably practicable" that the structure is designed so that persons erecting it are "safe from injury" and in its consideration of the statutory duty imposed by the section in that the Full Court:-

(a) held that the phrase "reasonably practicable" required the Court to take into account whether other competent designers would have included the design elements which would have prevented the injury;

(b) held that the plaintiff carried the onus of proving that the design elements were reasonably practicable; and

(c) failed to hold that the section imposed a more onerous duty on a designer than the common law duty, in that even a small risk of injury was sufficient to require that the designer include design elements which were practicable.

 

 

(Other than Applications for Special Leave to Appeal)

AUGUST/SEPTEMBER 2000

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v. EDENSOR NOMINEES PTY LTD & ORS (M20/2000)

EDENSOR NOMINEES PTY LTD v. AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION & ORS (M23/2000)

YANDAL GOLD PTY LTD & ORS v. AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION & ANOR (M24/2000)

Court appealed from: Full Federal Court of Australia

Date of judgment: 9 March 2000

Date referred to Full Bench: 18 April 2000

RE EDENSOR NOMINEES PTY LTD & ORS; EX PARTE AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION (M35/2000)

RE AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION & ORS; EX PARTE EDENSOR NOMINEES PTY LTD (M38/2000)

RE AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION & ORS; EX PARTE YANDAL GOLD PTY LTD & ORS (M39/2000)

Order nisi applications

On 12 January 1999 Yandal Gold Pty Ltd ("Yandal Gold") made a formal takeover offer of $1.50 per share on Great Central Mines Ltd ("GCM"), a company listed on the Stock Exchange. Yandal Gold was a wholly owned subsidiary of Yandal Gold Holdings Ltd ("Yandal Gold Holdings"). The shares in Yandal Gold Holdings were owned as to 50.1% by Edensor Nominees Pty Ltd ("Edensor") and as to 49.9% by Normandy Consolidated Gold Holdings Pty Ltd ("Normandy Consolidated Gold"). Edensor held the shares in Yandal Gold Holdings as a trustee of a discretionary trust for the benefit of the Gutnick family. Normandy Consolidated Gold, Normandy Mining Holdings Pty Ltd ("Normandy Mining Holdings") and Normandy Mining Finance Ltd were subsidiaries of the ultimate holding company of the Normandy group, Normandy Limited ("Normandy"), a company also listed on the Stock Exchange.

At that time Yandal Gold had a "relevant" interest in 43% of the issued shares in GCM. The interest arose as a result of a Shareholders Agreement entered into on 11 January 1999 between all of the companies named in these proceedings. Prior to that agreement Yandal Gold and Yandal Gold Holdings held no shares in GCM. Upon entering into the Agreement, Edensor's interest in GCM increased from 12.56% to 40.37% and the Normandy group's entitlement increased from 27.81% to 40.37%. Immediately after the closure of takeover offers, Yandal Gold had become entitled to 94.37% of the issued shares in GCM (of which 40.37% related to the shares held by Normandy Mining Holdings and Edensor).

From an early stage of the takeover, Australian Securities and Investments Commission ("ASIC") was concerned about the consequences of the Shareholders Agreement. ASIC's concern was that, as a result of the takeover being launched by Yandal Gold from a "platform" of 40.37%, there was no realistic prospect of a rival bid and either no (or an inadequate) premium for control was being offered to shareholders in GCM, who were not being paid a fair or reasonable price for their shares. ASIC's investigations resulted in proceedings being commenced in the Federal Court. ASIC contended that as a result of the Shareholders Agreement, Yandal Gold, Yandal Gold Holdings, Edensor and certain companies in the Normandy Group were deemed to have relevant interest in the shares held by Edensor and Normandy Mining Holdings in GCM under s33 of the Corporations Law and had acquired the relevant interest in respect of those shares in contravention of s615 of the Corporations Law. ASIC sought relief including the making of orders under ss737 and 739 of the Corporations Law. Subsequently ASIC amended its application to seek further relief based on its contention that the making and dispatch of the takeover offers contravened s12DA of the Australian Securities and Investments Commission Act 1989 (Cth) (the "ASIC Act"), s995(2)(b) of the Corporations Law and/or s52 of the Trade Practices Act 1974 (Cth) (the "TP Act").

Merkel J was of the view that there had been breaches of s615 of the Corporations Law, as well as s52 of the TP Act or alternatively s12DA of the ASIC Act and s995(2)(b)(iii) of the Corporations Law. Merkel J gave judgment in favour of ASIC and made orders and declarations accordingly, including an order requiring Edensor to pay to ASIC $28.5 million for payment by ASIC pro-rata to shareholders in GCM. The order for payment was made pursuant to s737 or 739 of the Corporations Law. Edensor appealed to the Full Court. Edensor paid the amount of $28.5 million into court pending hearing and determination of the appeal.

A preliminary point arose on the appeal as a result of the High Court decision in Re Wakim. It was submitted that as a consequence of Re Wakim, to the extent that the orders and declarations made by Merkel J were made under the Corporations Law, he had no power to make them. The Full Court agreed with Merkel J that there was a common substratum of fact which conferred on the Federal Court jurisdiction to decide the whole "matter", the whole controversy between the parties (the accrued jurisdiction). However the Full Court found that the powers could not be exercised by the Federal Court because the State of Victoria could not, by the Corporations (Victoria) Act 1990 (Vic) give to the Federal Court jurisdiction to exercise the jurisdiction of the State of Victoria, following Re Wakim. The Court concluded that the exercise of powers under the Corporations Law was restricted, by the definition of "court" in S58AA of the Corporations Law, to the Federal Court when exercising the jurisdiction of the State of Victoria. The Full Court concluded that s58AA in substance precluded the existence in the accrued jurisdiction of any matter under the Corporations Law.

The Full Court delivered its judgment on 10 December 1999, but had sought further submissions from the parties as to the orders to be made. The Federal Courts (State Jurisdiction) Act 1999 (Vic) (the "State Jurisdiction Act") came into effect on 15 December 1999. In a further judgment delivered on 9 March 2000, the Full Court held that the order for payment made by Merkel J was invalid for want of jurisdiction and that it constituted an "ineffective judgment" within the meaning of s4(1) of the State Jurisdiction Act. Under that Act an ineffective judgment is to be treated as a judgment of the Supreme Court. The Full Court was of the view that the future course of the proceedings ought to be dealt with by the Supreme Court of Victoria.

The questions of law said to justify the grant of special leave in M20/00 include:

• Did the Federal Court of Australia have accrued jurisdiction to hear and determine the claims for relief under ss737 and 739 of the Corporations Law of Victoria made by the Australian Securities and Investments Commission, or another applicant; and

Did the Federal Court have original jurisdiction pursuant to ss39B(1A)(a) or (c) of the Judiciary Act 1903 (Cth) to hear and determine a claim for relief under ss737 and/or 739 made by ASIC or another applicant.

The questions of law said to justify the grant of special leave in M23/00 include:

• Is the State Jurisdiction Act inconsistent with section 22 and/or section 24 of the Federal Court of Australia Act 1976 (Cth) if and insofar as the definition of "State matter" in the State Jurisdiction Act includes matters outside the exclusive jurisdiction of the Federal Court of Australia but within the accrued jurisdiction of that Court.

The questions of law said to justify the grant of special leave in M24/00 include:

• Was order 7 [ordering payment of the $28.5 million] made by Merkel J:

a) made in a State matter as defined in the Federal Courts (State Jurisdiction) Act 1999 (Vic); and

b) an ineffective judgment as defined in the State Jurisdiction Act.

All three applications for special leave to appeal were heard on 18 April 2000. Gaudron and Hayne JJ made orders referring the three applications for special leave to an expanded Full Court. At the same time directions were given which resulted in each of the three applicants for special leave applying for prerogative relief, by way of mandamus and certiorari, in respect of the orders made by the Full Federal Court on 9 March 2000. The applications for prerogative relief came before Hayne J on 28 April 2000 who directed that each application for prerogative relief be made by notice of motion to the same Full Court that would be determining the special leave applications.

Notices of constitutional matters have been given. The Commonwealth, Victoria, Western Australia, South Australia and New South Wales will be intervening.

 

BRODIE & ANOR v. SINGLETON SHIRE COUNCIL (S44/1999)

Court appealed from: Supreme Court of NSW, Court of Appeal

Date of judgment: 6 March 1999

Date referred to Full Bench: 10 December 1999

This case concerns injuries to users of highways and liability of highway authorities and the distinction between nonfeasance and misfeasance.

The applicants sought to recover from the respondent damages in respect of injuries and losses sustained as a result of the respondent's negligence. On 19 August 1992 the first applicant drove a fully laden truck onto a wooden bridge (Forresters Bridge) in the Singleton area. The bridge which was at least 50 years old collapsed. The first applicant suffered injuries and the truck sustained damage.

At trial the applicants sought to advance a case of misfeasance. The basis for such a case was that, as over the years it had taken steps to replace defective decking planks, the Council became subject to a duty to repair the whole bridge; that, by not doing so, the Council had created a danger in the highway and thus was guilty of misfeasance. Tapsell DCJ held that the case was not a case of nonfeasance (which would have meant that the respondent was not liable) but rather of misfeasance and found a verdict and awarded damages for the applicants.

The Court of Appeal allowed the respondent's appeal, finding that the primary judge was in error in his finding that the respondent was liable on the grounds of misfeasance.

The States of Victoria, Western Australia and New South Wales are seeking leave to intervene and make submissions.

Questions of law said to justify the grant of special leave to appeal are:

• Whether the defence of nonfeasance is available to highway authorities. The case concerns a wooden bridge in the Singleton area which collapsed when the applicant drove a fully laden concrete truck onto it; its girders on which the planks were laid were badly "piped"; and

• Whether, if the defence of nonfeasance is available to highway authorities, the Court of Appeal applied the wrong test in finding that the respondent was not guilty of misfeasance because the replacing of planks on the surface of the bridge was only "superficial repairs to the road surface" (para 46). The planks which made up the surface were the functional part of the bridge and were not to be equated with filling in a hole in the surface of a road as in Gorringe v. The Transport Commission (Tas) (1950) 80 CLR 357.

GHANTOUS v. HAWKESBURY CITY COUNCIL (S69/1999)

Court appealed from: Supreme Court of NSW, Court of Appeal

Date of judgment: 14 April 1999

Date referred to Full Bench: 10 December 1999

This application concerns the misfeasance/nonfeasance rule and whether that rule extends to the nature strip beyond the footpath.

The applicant sought to recover from the respondent damages for injuries which she sustained in July 1990 when she fell while walking on a cement footpath in Kable Street, Windsor. The claim was founded in negligence. It was not disputed before the trial judge that the cement footpath in Kable Street was still in good condition, however it was clear that, at that time, the unsealed strips on each side of the footpath had become degraded, the strips being virtually denuded of grass, the surface of the strips being about 30 mm or so below the level of the cement, and the soil within each strip being uneven. The trial judge gave verdict for the respondent, holding that "it is regrettable that that Council's program of maintenance did not operate to keep the footpath in less hazardous condition but that failure to maintain is, by definition, nonfeasance. The Council enjoys immunity for nonfeasance and consequently the plaintiff fails."

The applicant appealed. The Court of Appeal dismissed the appeal. The Court found that the principle of immunity of a road authority in respect of nonfeasance remains part of the law of NSW, and that even though it has been suggested that there is doubt as to the extent to which this principle applies to foot or pathways as distinct from roadways, it concluded that the area beside the footpath was subject to the misfeasance/nonfeasance rule and that the Council's action or inaction amounted to nonfeasance and not misfeasance.

The States of Victoria, Western Australia and New South Wales are seeking leave to intervene and make submissions.

Questions of law said to justify the grant of special leave to appeal are:

• The Court of Appeal erred in extending the application of the misfeasance/nonfeasance rule from the "road surface proper" or "actual roadway itself" not merely to footpaths but to an area of nature strip beside the footpath said to be part of the road reserve;

• The Court of Appeal erred in concluding that the Respondent Council was not an active agent in creating, or adding to, an unnecessary danger; and

• The highway immunity (misfeasance/nonfeasance) should not form part of the law in New South Wales. The appellant requires leave to argue this point in the light of the High Court decisions in Buckle v. Bayswater Road Board (1936) 57 CLR 259 and Gorringe v. The Transport Commission (Tas) (1950) 80 CLR 357.

DURHAM HOLDINGS PTY LIMITED v. THE STATE OF NEW SOUTH WALES (S155/1999)

Court appealed from: Supreme Court of NSW, Court of Appeal

Date of judgment: 8 September 1999

Date referred to Full Bench: 10 March 2000

This application raises substantial questions as to the legislative power of the State Parliament. The applicant seeks to have the decision of the Court of Appeal set aside and questions the validity of certain sections of the Coal Acquisition Act 1981 (NSW) [the "CAA"] and Coal Acquisition (Compensation) Arrangements 1985 (NSW) [the "CACA"] as amended. The applicant also questions the Court of Appeal's approach to the construction of this legislation.

The applicant is incorporated in New South Wales. In 1969 and 1974 it bought certain coal deposits in NSW to mine. On 18 December 1981 the NSW legislature enacted the CAA to create an expropriation and compensation regime. The relevant sections came into force on 1 January 1982. In June 1985 the Coal Compensation Board [the "CCB"] was established for the purpose of determining claims for compensation after the expropriation of coal under the CAA. The applicant lodged a claim in April 1986 for compensation.

On 22 June 1990 the Coal Acquisition (Amendment) Act 1900 NSW [the "CAAA"] came into force. It added a new s6(3) to the CAA to provide a limit or 'cap' to compensation payments. A new subclause 22AA(3) was added to the CACA which purported to place a limit of $23,250,000 plus interest on compensation payable to the applicant, irrespective of the amount of compensation to which it would otherwise be entitled.

On 22 August 1997 the CCB decided the applicant's claim. It assessed that the applicant was entitled to a total amount of $93,397,327, however, the CCB applied the 'cap' in cl 22AA(3) of the CACA to determine that the applicant was entitled to no further compensation than that paid in interim payments totalling $27,006,254. The applicant then appealed to the Coal Compensation Review Tribunal and commenced proceedings in the Administrative Law Division of the Supreme Court which were removed into the Court of Appeal.

On 8 September 1999 the Court of Appeal dismissed the proceedings.

Firstly, the Court of Appeal rejected the applicant's proposition that by reason of s30 of the Interpretation Act 1987 (NSW) subcl 22AA did not apply to the applicant's pending claim for compensation since a contrary intention appeared in the Act and the Arrangements. Secondly, the Court of Appeal held that the presumption that the legislature does not intend to acquire property without compensation was rebutted by s6(3) of the CAA. Thirdly, the Court of Appeal rejected the claim that s6(3) of the CAA was inconsistent with s10 of the Racial Discrimination Act 1975 (Cth). Fourthly, the Court of Appeal rejected the claim that s6(3) of the CAA was beyond the power of the NSW Parliament on the ground that it purported to deprive named persons of their property without just, or any properly adequate, compensation. The Court relied chiefly on the statements of the High Court in Mabo v. Queensland (1986) 166 CLR 186 and Teori Tau v. Commonwealth (1969) 119 CLR 564.

A notice of constitutional matter has been filed and the Commonwealth and the States of Victoria, Queensland, Western Australia and South Australia have intervened.

Questions said to merit the grant of special leave to appeal are:

• Whether s6 of the Coal Acquisition Act 1981 (NSW) as amended rebuts the presumption that the legislature does not intend to acquire property without compensation; and

• Whether the Legislature of NSW has the power to acquire property from named parties without compensation.

STANOEVSKI v. THE QUEEN (S251/1999)

Court appealed from: Supreme Court of NSW', Court of Criminal Appeal

Date of judgment: 24 February 1998

Date of grant of special leave: 10 December 1999

The appellant, a solicitor, pleaded not guilty to a charge of conspiracy to cheat and defraud. She was convicted and sentenced to a fixed term of imprisonment of 9 months to be served by way of home detention.

The Crown case was that on 21 January 1993 the appellant approached her secretary, Glory Wailes, and an agreement was made between them for Ms Wailes to arrange for someone to take the appellant's BMW motor vehicle so that the appellant could make a claim on NRMA Insurance Limited. Ms Wailes approached a Robert White who agreed to take the car and arrangements were made for him to remove it from Jacob Street, Bankstown on 4 February 1993.

At the trial the principal witness against the appellant was the co-conspirator, Ms Wailes. Some time before the trial, Ms Wailes had made an allegation to the Law Society alleging that the appellant had forged the signature of a client to an affidavit in certain court proceedings, and had also purported to witness the client's signature. (The alleged forgery was unrelated to the charge on which the appellant stood trial). The Law Society had conducted an investigation into the matter. No charge was laid.

Trial counsel for the appellant sought from the trial judge an advance ruling as to whether, if he raised the issue of the appellant's good character, the Crown Prosecutor would be permitted to cross-examine the appellant about the alleged forgery. The trial judge indicated that he would be minded to permit such cross-examination. When the appellant came to her case she raised the issue of character, gave and called evidence of her good character and referred to the complaint to the Law Society (about which the jury had previously heard nothing). She was then cross-examined by the Crown Prosecutor. In due course the trial judge gave directions to the jury about the matter.

The Court of Criminal Appeal held that in the circumstances the cross-examination of the appellant was permissible, the trial did not become unfair and the trial judge's directions to the jury on the issue were appropriate.

The grounds of appeal are:

• The Court of Criminal Appeal erred in holding that the trial judge did not err in admitting evidence of bad character to rebut evidence of the appellant's good character; and

• The Court of Criminal Appeal erred in holding that the trial judge did not err in permitting cross-examination of the appellant regarding allegations made by Glory Mae Wailes to the Law Society of New South Wales.

RE THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA & ANOR; EX PARTE MIAH (S199/1999)

The prosecutor was born in Bangladesh on 29 September 1970. He arrived in Australia on 9 March 1996. On 1 April 1996 he lodged an application for a protection visa. The prosecutor claimed in his application that he feared serious harm at the hands of Muslim fundamentalists in Bangladesh because of his religious and political beliefs and because of his profession as a journalist. He claimed, inter alia, that he and his wife had each been publicly lashed 101 times. On 13 May 1997 the 2nd respondent (as delegate of the 1st respondent) rejected the application for a protection visa.

The delegate appears to have been satisfied that the prosecutor had a fear of persecution on the grounds identified within the Convention. The question he set out to answer was whether that fear was "well founded".

Three months after the application was lodged, a general election was held in Bangladesh as a result of which the Awami League took over government in place of the Bangladesh Nationalist Party ("the BNP") which had previously been in power. The delegate was of the view that the change in government was a critical factor in determining the fate of the prosecutor's application. The prosecutor had indicated that he had considered the Awami League and the BNP as having similar sympathies in relation to Jamat-i-Islam (the fundamentalist party). The delegate apparently took a different view on the basis of two documents identified in his reasons which were not supplied by the prosecutor. They were not made available to the prosecutor, nor was he advised of the possible adverse inferences that might be drawn from them.

The prosecutor argues that it is well established that the usual approach to determining whether Australia has protection obligations under the Convention Relating to the Status of Refugees is to identify the circumstances in which an applicant left his country of nationality. The prosecutor further argues that the failure to provide an opportunity to comment on the documentary material which proved critical to the prosecutor's case constitutes a contravention of procedural fairness.

On 23 May 1997 the prosecutor instructed his then solicitor to seek review of the decision by the Refugee Review Tribunal ("the Tribunal") and signed an application for review. In order to comply with s412 of the Migration Act 1958 (Cth) the application to the Tribunal should have been lodged by 11 June 1997. Due to the failure of the then solicitor to lodge the application as instructed, that was not done.

On 17 January 2000 McHugh J granted an order nisi.

 

MALIKA HOLDINGS PTY LTD v. STRETTON (M14/2000)

Court appealed from: Court of Appeal, Victoria

Date of judgment: 4 December 1998

Date special leave granted: 11 February 2000

The applicant claimed that goods imported into Australia in September 1986 were "handcrafted cotton garments", in which case no duty would have been payable. Duty would have been attracted if the garments were machine made. The Australian Customs Service ("Customs") decided to investigate handcraft importations, releasing the goods pending such investigation, after having taken samples for testing. Customs subsequently demanded payment of duty from the applicant. However Customs advised no further action would be taken pending the outcome of a test case in the Administrative Appeals Tribunal. After that case was determined, Customs made a formal demand to the applicant in April 1989. The applicant did not pay the duty on the basis that: the goods were handcrafted; the original letter stating that recovery action would not be taken was not a valid demand; and the subsequent letter of demand was outside the statutory 12 month period prescribed by s165 of the Customs Act 1901 (Cth) ("the Act").

The respondent, in her capacity as Regional Director of Customs, commenced proceedings in the Supreme Court to recover the customs duty of $44,540.77. A preliminary question came before Gray J to be determined as follows:

"Is the defendant entitled to dispute:

(a) the amount of duty;

(b) the rate of duty; or

(c) the liability of the goods the subject of the action to duty

where the defendant had neither:

(i) paid under protest pursuant to sub-section 167(1) of the Customs Act 1901 the sum demanded by the collector as the duty payable in respect of the goods; nor

(ii) brought an action pursuant to sub-section 167(2) of the Customs Act 1901 for recovery of the sum so paid?"

Gray J answered the preliminary question in the affirmative. The respondent appealed. The Court of Appeal answered the question in the negative and allowed the appeal. The Court held that those sections constituted an exclusive code for the challenging of assessments for customs duties.

The grounds of appeal include:

• The Court of Appeal erred in holding that s167 of the Customs Act 1901 (Cth) constituted the only means by which an importer may challenge the amount and rate of, and the liability of the goods to, customs duty; and

• The Court of Appeal erred in holding that s167 of the Customs Act 1901 (Cth), although in form permissive or facultative, is in effect peremptory or exclusive.

(Other than Applications for Special Leave to Appeal)

OCTOBER 2000

KRM v. THE QUEEN (M11/2000)

Court appealed from: Court of Appeal, Victoria

Date of judgment: 9 June 1999

Date special leave granted: 11 February 2000

The applicant was found guilty on 18 counts involving various sexual offences. The complainant was born in 1977 and when the complainant was about 2 years old the applicant married the complainant's mother. The alleged offences occurred at various times between 1984 and 1992. The complainant's mother gave evidence of having received complaints from her daughter about the sexual acts. She also gave evidence that in October 1992 the applicant had admitted the alleged behaviour after which he took an overdose of tablets and was hospitalised. The applicant gave evidence and denied any sexual activity with the complainant. He said he had taken some tablets to help overcome a back injury.

Counts 1 to 17 alleged 17 specific acts. Count 18 was a charge laid under s47A Crimes Act 1958 (Vic), namely of maintaining a sexual relationship with a child aged under 16 (between 5 August 1991 and 18 March 1992). The evidence consisted of unparticularised acts, the complainant stating that she was subjected to routine, repeated sexual acts during the six months immediately preceding her fifteenth birthday.

The applicant appealed against conviction. One of the grounds was whether the nature of the evidence led to establish count 18 was a matter which required the giving of a propensity warning. The applicant submitted that the trial judge should have directed the jury not to reason that because the applicant engaged in sexual conduct the subject matter of count 18, he was the kind of person who was likely to have committed the crime the subject of other counts. The Court of Appeal dismissed the appeal.

The grounds of appeal are:

• That the Victorian Court of Appeal erred in law in failing to hold that in every such case involving a presentment including a count pursuant to s47A of the Crimes Act 1958 (Vic) that there should have been a propensity direction; and

• That the Victorian Court of Appeal erred in law by holding that a propensity direction was not necessary in the particular circumstances of this case.

VETTER v. LAKE MACQUARIE CITY COUNCIL (S27/2000)

Court appealed from: NSW Supreme Court, Court of Appeal

Date of judgment: 16 April 1999

Date of grant of special leave: 11 February 2000

The appellant left her place of work and drove to her grandmother's house from where she later set out for home after dinner. This was a fortnightly occurrence. On the way home she was seriously injured in a car accident.

The appellant commenced proceedings in the Compensation Court under s10 of the Workers' Compensation Act 1987 ("the Act"). The trial judge found in her favour and awarded compensation. Relevantly, he held that at the time of injury the appellant was on a single journey from her place of employment to her place of abode.

The respondent appealed on questions of law relating to whether there were two journeys or one, whether (if it was a single journey) that journey was a daily or other periodic journey for the purposes of s10(3)(a) of the Act, whether the substantial deviation from and interruption to that single journey materially increased the risk of injury and whether the injury caused was partly or wholly the fault of the worker.

The Court of Appeal allowed the appeal setting aside the award for the appellant entered in the Compensation Court and ordering a new award for the respondent. Two of the three judges held that the journey was not a single journey but two journeys and that the trial judge had erred in law in not drawing this conclusion. Two of three judges held that the trial judge had erred in law in finding that the injury had not been caused by fault of the worker.

The grounds of appeal include:

• The Court of Appeal erred in concluding that the question of whether or not the appellant was injured in the course of a daily or other periodic journey between her place of employment and her place of abode was a question of law;

• The Court of Appeal erred in concluding that the appellant was injured in the course of a journey which was not a daily or other periodic journey between her place of employment and her place of abode; and

• The Court of Appeal erred in concluding that it was not open as a matter of law to find that the injury to the appellant occurred during a single journey from her place of employment to her place of abode.

KIMBERLY-CLARK AUSTRALIA PTY LIMITED v. ARICO TRADING INTERNATIONAL PTY LIMITED & ORS (S75/2000)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 30 August 1999

Date of grant of special leave: 17 March 2000

The appellant, Kimberly-Clark Australia (KCA), brought a patent infringement suit for infringement of its patent by the first respondent, Arico, by the importation and sale of disposable nappies, which are marketed under the name "baby sitter". Arico sought, by cross claim, a declaration of invalidity and an order revoking the KCA patent. The patent is a convention patent, the priority date of which, in reliance on a United States patent, is 2 July 1984. The complete specification refers to an invention entitled "Diapers with Elasticised Side Pockets".

The judge at first instance found for KCA on its claim for infringement and dismissed Arico's cross claim for invalidity. Arico appealed against both these findings raising issues of insufficient description, fair basis, novelty, manner of manufacture and infringement.

The majority of the Full Federal Court allowed the appeal holding that the appeal could be decided by reference solely to s40(2)(a) of the Patents Act 1990 (Cth) ("the Act"). Section 40 of the Act is concerned with specifications. Section 40(2) provides as follows:

"A complete specification must:

a. describe the invention fully, including the best method known to the applicant of performing the invention; and

b. where it relates to an application for a standard patent – end with a claim or claims defining the invention."

The majority held that the complete specification did not "describe the invention fully, including the best method known to the appellant of performing the invention within the meaning of s40(2)(a) of the Act. The complete specification does not disclose to a person who may wish to make the invented product after the patent has expired how the product should be constructed."

Tamberlin J, dissenting, inter alia rejected the submission that the invention is not fully described in the specification and considered that there had been an infringement of the KCA patent by the Arico product. He found that the respondent had not made out the grounds for revocation of the patent and the appellant had made out its case of infringement.

The grounds of appeal include:

• The Court erred in ordering that Australian Patent No. 586633 ("the Patent") be revoked;

• The Court erred in declaring that the Patent was at all times invalid;

• The Court erred in otherwise making Orders 1, 2 and 3 made on 30 August 1999; and

• The Court erred in holding (per Wilcox and Branson JJ, Tamberlin J dissenting) that the complete specification of the patent did "not describe the invention fully, including the best method known to the appellant or performing the invention" within the meaning of s40(2)(a) of the Patents Act 1990 and in doing so applied a wrong test of "sufficiency".

STATE OF NEW SOUTH WALES v. TAYLOR (S46/2000)

Court appealed from: Supreme Court of NSW, Court of Appeal

Date of judgment: 2 June 1999

Date of grant of special leave: 17 March 2000

This appeal concerns the construction of s151A(5) of the Workers' Compensation Act 1987 ("the Act"), in particular the construction of sub-section 5(c).

The respondent was employed as a cleaner at Blacktown Girls High School. In October 1992 he injured his back lifting garbage bins. He elected to accept permanent loss compensation under the Act.

In October 1995 he commenced proceedings claiming damages in respect of the injury. The election that he had made stood in his way and was irrevocable except with the leave of the court. By s151A(5) if certain conditions were satisfied then, with the leave of the court, the respondent could revoke the election. The conditions which had to be satisfied included in sub-section 5(c): "At the time of the election there was no reasonable cause to believe that the further deterioration would occur."

In April 1997 the respondent applied by notice of motion for leave and for an order that the proceedings "be deemed to have been validly commenced" pursuant to the leave. On 3 June 1997 Master Greenwood granted leave to the respondent to revoke his election and to commence fresh proceedings.

The appellant appealed from the Master's decision. The judge at first instance allowed the appeal. The respondent then appealed to the Court of Appeal.

By majority the Court of Appeal allowed the appeal, holding that (per Giles JA): "taking the medical opinions together with the [respondent's] account of his condition, including of its continuing worsening ... the position is the same [as in Francis v. Dunlop]. There was no reasonable cause to believe that the further deterioration would occur, and para (c) is satisfied."

The ground of appeal is:

• The Court of Appeal erred in not finding that upon its proper construction s151A(5)(c) operates to preclude a worker from revoking his or her election not to sue for damages when a reasonable person in the position of the worker at the time the election is made would think that deterioration was either likely or was a real possibility as a consequence of the injury.

RE THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR; EX PARTE EPEABAKA (M22/1999)

Date of order referring application to Full Court: 29 March 2000

The applicant arrived in Australia in April 1996 and then applied for a protection visa. In September 1996 the delegate of the first respondent refused the application. The applicant then applied to the Refugee Review Tribunal ("the RRT") to review the delegate's decision. The Member constituting the RRT was Dr Rory Hudson, the second respondent. In January 1997 the RRT affirmed the decision of the delegate. The applicant sought judicial review in the Federal Court. Finkelstein J heard the matter in August 1997. Judgment was delivered on 10 December 1997, setting aside the decision of the RRT and remitting the matter to the RRT for reconsideration. The first respondent appealed to the Full Federal Court, which on 6 January 1999 allowed the appeal and set aside the orders made by Finkelstein J.

The applicant subsequently became aware that on 23 December 1998 Heerey J had delivered judgment in a matter (Besim Ferati v. Minister for Immigration and Multicultural Affairs) in which he had considered material which had been published by the second respondent on the internet on his "homepage". Part of the material on the homepage, which was published in October 1997, included the following:

"But while I would like to let into Australia at least 95% of the applicants who come to us, who are usually deserving cases and decent human beings even if they lie through their teeth (as they often do) in their desperation to find a better life, it's not as simple as that.";

"We work with dishonesty and corruption on all sides: ... applicants who weave webs of lies...".

Heerey J had held in Ferati that this material constituted a clear case of apprehended bias.

The applicant filed an application for prerogative relief by way of prohibition and certiorari, upon the ground that the decision taken by the second respondent in the case of the applicant would excite in the mind of a reasonable party or member of the public that it affected by apprehended bias. The application also sought an extension of time in respect of the application for certiorari.

On 29 March 2000 Hayne J directed that the application for prerogative relief (and the application for extension of time) be made by notice of motion to a Full Court.

 

 

AZZOPARDI v. THE QUEEN (S105/2000)

Court appealed from: Supreme Court of NSW, Court of Criminal Appeal

Date of judgment: 1 October 1998

Date of grant of special leave: 14 April 2000

The appellant was convicted at a trial before a judge and jury of the attempted murder of a man who had a sexual relationship with the appellant's wife, by arranging for him to be shot by others.

The victim, Mr Gauci, was leaving for work on 7 December 1994 at about 8.30 am. He saw two young men speaking to his wife near the front gate of his home. One of the two men leaned into the passenger seat of the white Laser parked in front of the gate and stood up holding a gun in his hand. He fired a shot which hit Mr Gauci in the abdomen. Mr Gauci fell backwards onto the ground, crying out for help. Two further shots were fired at him and hit him as he lay on the ground. He sustained severe injuries which left him a paraplegic. The person who did the shooting was Daniel Papalia. He gave evidence in support of the Crown case against the appellant. He said that he had been living at the home of Allan Knibbs. The appellant had come to the house and told Papalia that he wanted him to kill someone. The appellant made threats against Papalia's family which influenced Papalia to carry out the shooting.

The appellant was interviewed by police. He admitted knowing the victim, but repeatedly and vehemently denied any involvement in the shooting.

The appellant did not give evidence at his trial.

He appealed to the Court of Criminal Appeal (CCA) on several grounds including the ground that " the ... judge erred in commenting on the failure of the appellant to give evidence at his trial." Section 20(2) of the Evidence Act 1995 (NSW) provides relevantly as follows: "The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence charged." The CCA said that a comment of the kind permitted by s20(2) must be made in a way that is appropriate to the facts and circumstances of the individual case and that it must give effect to certain general principles. The Court found that although the directions could have been more simply and clearly expressed by the trial judge, they were adequate to the circumstances of the particular case. The appeal against conviction was dismissed.

The grounds of appeal are:

• The Court of Criminal Appeal erred in determining that the directions to the jury on the question of the appellant's failure to give evidence at his trial were adequate to meet the circumstances of the case; and

• The Court of Criminal Appeal erred in holding that the directions given to the jury did not breach the terms of the Evidence Act 1995 (NSW) s20.

This matter was stood over on 16 April 1999 awaiting the decision in RPS v. The Queen.

 

 

DAVIS v. THE QUEEN (S39/2000)

Court appealed from: Supreme Court of NSW, Court of Criminal Appeal

Date of judgment: 24 February 1999

This application raises questions regarding directions to the jury where an accused person elects not to give evidence and relies instead upon evidence of answers given to the police.

The applicant was charged with a number of offences alleged to have been committed on a child under 10 years. After a trial by jury in the District Court he was found guilty in relation to each count.

The Crown case was that the offences occurred on 4 May 1996 at the home of the applicant. The applicant had developed a friendship with the complainant's stepfather. On 4 May the applicant and his sons had visited the complainant's home. The applicant and the complainant's stepfather consumed a quantity of alcohol, watched television and had a meal. Later the complainant left with the applicant and his sons to spend the night at the applicant's home. The Crown case is that the applicant indecently assaulted the complainant as she sat on his lap while he was driving home. When they arrived at the applicant's home the applicant and the complainant and his two sons all went to his bedroom to watch television. The boys sat on the floor. The applicant lay on the bed and the complainant sat at the end of the bed. The applicant told the complainant to lie down. The complainant alleged that the applicant removed her clothes and had sexual intercourse with her on the bed.

The applicant elected not to give evidence and the trial judge gave lengthy directions to the jury in respect of the applicant's failure to give evidence.

The Court of Criminal Appeal held that although the trial judge should, ordinarily in giving directions to the jury concerning the failure of the accused to give evidence, refer to the possibility that the accused may have reasons for remaining silent, the rule is not expressed in absolute terms. Although the trial judge should have referred to that possibility, the applicant did not suffer any miscarriage of justice by reason of the omission. Counsel for the applicant had not taken the point at the trial. The Court also found that the fact that the applicant had participated in an ERISP (Electronically Recorded Interview with Suspected Person) does not necessarily militate against giving a Weissensteiner direction.

The trial and the appeal to the Court of Criminal Appeal were heard before the decision in RPS v. The Queen.

The question of law said to justify the grant of special leave to appeal is:

• Were the directions given by the trial judge to the jury in respect of the failure of the applicant to give evidence in error?

LIFTRONIC PTY LIMITED v. UNVER (S102/2000)

Court appealed from: Supreme Court of NSW, Court of Appeal

Date of judgment: 29 July 1999

Date of grant of special leave: 14 April 2000

This appeal concerns the appropriateness of an Appeal Court disturbing the assessment of a jury as to the measure of apportionment for contributory negligence where no new facts were before the Appeal Court and no complaint made in respect of the directions given by the trial judge to the jury.

The respondent brought proceedings for damages for personal injury in the District Court in respect of a work related accident which occurred on 20 February 1995. He and an apprentice, Mr Dawes, were instructed by a foreman to clean and paint some steel rails weighing approximately 110 kilograms each. The system of work adopted, apparently in accordance with the foreman's instructions, involved moving each rail one at a time from where it was lying in a bundle and placing it onto two pieces of wood which lay upon the floor some two metres away. When the rail was in this position the two men could clean and paint it. The rails were lifted and moved by using a lifting hook, each rail being lifted a short height and then lowered onto the pieces of wood. Explicit instructions were given to the respondent that when lifting, he was to keep his back straight and bend his knees.

The respondent became fed up with painting the rails whilst bending over, so he chose to modify the system of work designed by the appellant. He wanted to lift the rails to a better height so that he could paint them without bending over. He found something described as a scaffold frame and placed this in an appropriate position. He and Mr Dawes then manually (rather than using the lifting hooks) lifted the next rail onto the scaffold frame so that the rail then stood about 2 feet above floor level. Within probably 5 to 10 minutes of adopting this new procedure, the respondent hurt his back lifting a rail.

On the trial of his action in negligence for damages the respondent was awarded compensation by a jury, however this was reduced by 60% on the grounds of contributory negligence.

The respondent appealed from the decision of the trial judge, allowing the question of contributory negligence to go to the jury, and from the jury's assessment that the respondent should bear 60% of the responsibility for the injury. The appeal was successful. The majority found the jury's assessment of 60% perverse in the circumstances and substituted a finding of a 20% reduction in damages for the respondent's contributory negligence. Meagher J dissented.

The ground of appeal is:

• The Court of Appeal erred in substituting the assessment of the respondent's contributory negligence assessed by the jury at 60% with an assessment of 20%.

RE THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; EX PARTE DEVASAHAYAM & ANOR (M77/1998)

Date of order referring matter to Full Court: 29 March 2000

The applicants are Tamil nationals of Sri Lanka, who arrived in Australia in 1996. They applied for protection visas, which in January 1997 the delegate of the Minister refused. On 28 January a migration agent acting for the applicants sent an application for review of the delegate's decision to the Refugee Review Tribunal ("the RRT") by post. The application was not received by the RRT. The migration agent then made a submission to the RRT regarding the posting of the application. The RRT held that as the review application was not received within the mandatory time period specified in the Migration Regulations, the application for review was not valid and it had no jurisdiction.

The applicants filed an application for judicial review of the RRT determination, but later withdrew it. The applicants instead sought the intervention of the respondent ("the Minister") under s417 of the Migration Act 1958 (Cth) ("the Act"), asking him to exercise his discretion to make a more favourable decision. They also asked the Minister under s48B of the Act to allow them to make a further application for a protection visa. By letter of 4 September 1997 the Minister advised that he had no power to exercise any discretion under s417 because the decisions of the delegate had not been reviewed by the RRT. On 15 July 1998, the Minister advised that he had decided not to consider exercising his powers under s48B. The applicants again applied to the Minister under s417 of the Act. This application was refused on 27 August 1998 on the same ground as the original s417 application.

The applicants then filed application for prerogative relief. They also sought extensions of time for the making of such applications. The grounds upon which the applicants rely include:

• The respondent failed properly to exercise his jurisdiction in that the delegate breached the rules of natural justice or procedural fairness or alternatively failed to take relevant considerations into account, in that in making the decision, she failed to make all due and proper inquiries as to the truth of the claims of the prosecutors and in particular, failed to utilise mechanisms available within the Department and the Government whereby the prosecutors' claims as to the current situation in Sri Lanka and the impact of that situation upon them were on the date to be returned there, could have been readily assessed;

• The respondent exceeded his jurisdiction or failed properly to exercise his jurisdiction under s48B(1) of the Act in that he made the decision:

(a) not personally, as required by s48B(2), but in substance in effect through a person to whom he had delegated the matter, namely an officer of his department;

(b) without giving the matter his personal attention as required by s48B(2) but by acting upon, without independent and proper consideration, the recommendation or advice of an officer of his Department; and

(c) without reference to relevant considerations including the intention of Parliament that applicants for protection visas should have an opportunity for review on the merits by the Refugee Review Tribunal, and also that it was through no fault of the prosecutors that they were unable to obtain review by the Refugee Review Tribunal of the decision of the respondent's delegate.

On 29 March 2000 Hayne J directed that the application be made by notice of motion to the Full Court.

 

Full Court Matters
(Other than Applications for Special Leave to Appeal)

PERTH CIRCUIT SITTINGS

OCTOBER 2000

McDADE v. THE UNITED KINGDOM & ANOR (P54/2000)

Court Appealed from: Full Court of the Federal Court of Australia

Date of Judgment: 23 December 1999

Date of Grant of Special Leave: 16 June 2000

The appellant with his wife and two young children emigrated from the United Kingdom to Australia in July 1991. A warrant for the arrest of the appellant was issued in the United Kingdom on 9 August 1994. The offences with which the appellant was charged under the Criminal Law Act 1977 (UK), related to stealing and to dishonestly obtaining property and cash.

The British High Commission issued a Diplomatic Note on 9 September 1994, seeking his extradition to the United Kingdom from Australia. On 20 April 1997, the Attorney-General of the Commonwealth of Australia gave a Notice under s16 of the Extradition Act 1988 (Cth) ("the Act") stating that the request had been received, upon which a magistrate in Perth issued a warrant for the appellant's arrest.

Ultimately the second respondent, a magistrate of the Court of Petty Sessions in Perth, determined that the appellant was eligible for surrender in relation to 18 of the 23 offences relied on by the United Kingdom.

A question arose before the magistrate as to whether the statement of Detective Inspector Cook of the London Metropolitan Police Service satisfied the requirements of s19(3)(c) (ii) of the Act. This subsection requires "a duly authenticated statement in writing setting out the conduct constituting the offence". The magistrate was so satisfied and upon an application for an order for review, the primary Judge of the Federal Court was also so satisfied. The appellant then appealed to the Full Court of the Federal Court asserting that the statement failed to comply with s19(3)(c)(ii) of the Act because:

1. It included facts or conduct which went beyond what was necessary to establish the offences, or which were irrelevant to the offences and, in consequence, made it impossible to ensure that the double criminality and specialty requirements of the Act were not breached;

2. The statement failed to segregate or separately set out the acts or omissions by virtue of which each offence was alleged to have been committed; and

3. The statement was not self sufficient in that it was incapable of standing on its own without reference to other documents.

When the matter came on for hearing before the Full Court, the appellant was unrepresented and was refused an adjournment. The Full Court dismissed the appellant's appeal.

The grounds of appeal are:

• Whether the Full Court erred in law in determining that in extradition proceedings, a statement of conduct constituting a foreign offence, required by s19(3)(c)(ii) of the Extradition Act 1988 (Cth) can be widely drawn, so as to include conduct beyond that necessary to establish the foreign offence; including additional conduct that may affect the determination of the principles of double criminality and specialty;

• Whether the Full Court erred in law in holding that, pursuant to s19(3)(c)(ii) of the Act, a separate statement of conduct is not required in relation to each extradition offence;

• Whether the Full Court erred in law in holding that the statement of conduct produced in this case sufficiently set out and delineated the conduct constituting each offence and was a valid and sufficient statement for the purposes of the Act;

• Whether the Full Court erred in law in holding that, for the purposes of s19(3)(c)(ii) of the Act, a statement of conduct can validly incorporate material by reference to other documents; and

• Whether the Full Court erred in law in refusing an adjournment and whether this gave rise to a denial of natural justice to the appellant.

ROSENBERG v. PERCIVAL (P44/2000)

Court Appealed from: Full Court of the Supreme Court of Western Australia

Date of Judgment: 25 May 1999

Date of Grant of Special Leave: 14 April 2000

Due to an underdeveloped lower jaw, which gave rise to a malocclusion, the respondent underwent a surgical procedure known as a sagittal split osteotomy. This was performed by the appellant on 6 December 1993. Following that operation, the respondent underwent a further procedure carried out by the appellant on 25 February 1994 in an effort to mobilise the appellant's temporomandibular joints.

The respondent sued the appellant claiming that, primarily as a result of the operation, her life had been badly affected due to pain and other maladies which she had suffered since the operation. She claimed that the appellant had not warned her of all the possible complications that could arise from the surgery and that the appellant had been negligent in that prior to the operation he had failed to take note of minor complaints which she had related in regard to her pre operative condition. Her case was that there had not been informed consent on her part.

At first instance the trial Judge found that the appellant had no duty to warn the respondent of the risk of the condition (known as temporomandibular "TMJ" problems) that the respondent developed after the osteotomy. He further found that, even if the respondent had been warned of the slight possibility of complications, she would have proceeded in any event. He also found the respondent to be a generally unreliable witness.

On appeal to the Full Court, the respondent was successful, the Full Court finding that the evidence disclosed there was a risk (of TMJ problems) which was generally known to the appellant's profession, and this gave rise to a duty to warn which the appellant had negligently failed to do. The Full Court also overturned the trial Judge's finding that, even if warned of the risks, the respondent would have undergone the osteotomy procedure.

The grounds of appeal are:

• Whether the Full Court erred in holding that once there was a risk involved in dental treatment which is generally known to the dental profession, there is a duty to warn a patient of that risk;

• Whether the Full Court erred in law in failing to consider or to give reasoned consideration to the specific complication suffered by the patient, the effects thereof, whether and why the risk of that complication was material and, if material, the nature of the warning required in the particular circumstances of the case;

• Whether the Full Court erred in law in failing to consider or give reasoned consideration to the appellant's case that the post operative condition, the subject of the respondent's claim, was not a risk of which he knew or ought to have known at the material time; and

• Whether the Full Court erred in law in having no proper basis or no properly reasoned basis for overturning the learned trial Judge's finding that, had the respondent been warned of the relevant risk, she would have proceeded with the surgery in any event.

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v. JIA (P43/2000);

RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; EX PARTE JIA (P77/2000)

Court Appealed from: Full Court of the Federal Court of Australia

Date of Judgment: 15 July 1999

The respondent is a Chinese National. In December 1993, whilst residing in Australia on a Special Entry Permit, the respondent was convicted of assault occasioning bodily harm, deprivation of liberty, threatening to unlawfully harm and sexually penetrating a woman with whom he had had a previous relationship. He was sentenced to imprisonment. The Western Australian Court of Criminal Appeal dismissed the respondent's appeal against his convictions in August 1995.

The current application arises out of a decision of the appellant not to grant the respondent a transitional (permanent) visa on the basis that he was not of good character.

Following the Administrative Appeals Tribunal decision on 14 March 1997, which overturned the appellant's initial refusal, the appellant made comments in the media, where he indicated that he did not believe that a person was of good character if they had committed significant criminal offences involving penal servitude. The visa was subsequently issued and then cancelled on 10 June 1997 pursuant to the appellant's discretion under section 501 of the Migration Act 1958 (Cth).

The respondent applied to the Federal Court for an order for review, which was dismissed on 1 July 1998. The respondent appealed from the decision to the Full Court who allowed the appeal and set aside the appellant's decision to cancel the respondent's visa. The appeal was allowed by a majority on the ground that the decision of the appellant, that the respondent was not of good character, was induced or affected by actual bias.

The grounds of appeal are:

• Whether the majority of the Full Court erred in law in holding that the decision made by the appellant on 10 June 1997 to cancel the respondent's visa under section 501 of the Migration Act 1958 (Cth) and to declare him to be an excluded person, in accordance with section 502(1) of the Act were affected by actual bias;

• Whether the majority of the Full Court erred in drawing inferences from all the relevant circumstances that the appellant had prejudged the issue and whether the respondent was a person not of good character such that, at the time of making his decision on 10 June 1997, the appellant "had a closed mind" or "was precluded from consideration of all the relevant circumstances in relation to the respondent"; and

• Whether the majority of the Full Court erred in law in, having found that the primary Judge had correctly stated the test for actual bias, failed to hold that it was open to the primary Judge to be satisfied that, at the time of the appellant's decision, he had not so pre judged the issue of the respondent's character that his view was not open to change by the relevant facts falling for consideration.

In relation to P77/2000:

On 5 October 2000, Kirby J ordered that applications for prerogative relief filed by Mr Jia be returned on the day of the hearing of the appeals with which they are connected. The applicant has filed a notice of motion seeking a writ of prohibition against the Minister prohibiting him from proceeding to act on the decision that the applicant was not of good character and to issue a certificate of exclusion and prohibiting him from removing the applicant. A writ of certiorari is also sought to remove into this Court to be quashed the decision of the Minister.

The grounds said to justify prerogative relief are:

• The respondent failed to accord the applicant natural justice in making his decision as it was induced or affected by bias; or, in the alternative,

• That such decisions were made in circumstances where there was a reasonable apprehension of bias by the respondent against the applicant.

MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS v. WHITE (P47/2000)

RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS;

EX PARTE WHITE (P81/2000)

Court Appealed from: Full Court of the Federal Court of Australia

Date of Judgment: 8 March 2000

Date of Grant of Special Leave: 5 September 2000

The respondent in this appeal and the applicant for prerogative relief was formerly known as Leslie Edward Milton Towers, a citizen of New Zealand, who first arrived in Australia on 7 June 1987. The respondent was granted a special category visa on 31 January 1992. The respondent had committed a number of criminal offences in New Zealand before his arrival in Australia and committed further offences in Australia between 1988 and 1989. During a return trip to New Zealand, the respondent was convicted of a further offence. On 17 March 1994, the respondent was convicted of manslaughter in the Supreme Court of the Northern Territory and was sentenced to 4 years' imprisonment. He was also convicted of three counts of committing an aggravated dangerous act and was sentenced to 2 years' imprisonment on each count, with sentences to be served concurrently. The respondent was released from prison on 29 June 1994.

On 21 February 1997, the respondent pleaded guilty to two counts of dangerous driving causing bodily harm and grievous bodily harm, one count of driving under the influence of alcohol, one count of having no motor driver's licence and one count of dangerous driving causing grievous bodily harm. The respondent received 2 suspended sentences, a disqualification and a fine.

On 9 January 1998, a delegate of the appellant made a decision that, pursuant to ss200 and 201 of the Migration Act 1958 (Cth) ("the Act"), the respondent be deported. The deportable offences upon which the decision was based were the manslaughter convictions and the convictions on three counts of committing aggravated dangerous acts.

On 28 January 1998, the respondent applied to the Administrative Appeals Tribunal ("the Tribunal") for a review of the decision that he be deported. On 21 May 1998 the Tribunal set aside the deportation order and remitted the matter to the appellant with a direction that the respondent not be deported. The appellant did not appeal from that decision.

By letter to the respondent dated 13 August 1998, the Director of the Character Section of the Department of Immigration and Multicultural Affairs ("the Department") advised him that his visa might be liable to cancellation under s501 of the Act. The respondent was invited to make comments before consideration was given by the appellant whether to cancel the respondent's visa and declare him an excluded person under s502. The respondent made submissions by letter dated 22 August 1998. On 14 October 1998, a Minute was forwarded to the appellant seeking his decision on whether to cancel the respondent's visa and declare him an excluded person. The appellant made decisions on that date to cancel the respondent's visa on the ground that he was not of good character. A Notice of Visa Cancellation was served on the respondent and he was detained by officers of the Department under s189 of the Act.

The respondent applied to the Federal Court for a review of the appellant's decision on the basis that the decision of the appellant was induced or affected by fraud or by actual bias. After obtaining legal assistance, the application was further amended by deleting the existing 2 grounds of review and substituting various other grounds. It was not a ground of review of the application as further amended that the decisions were induced or affected by actual bias. At the time that the application was further amended so as to delete the ground of review that the appellant's decision was induced or affected by actual bias, counsel of the respondent was aware of the decision of Justice French in Jia Le Geng v. Minister for Immigration and Multicultural Affairs (1998) 34 FCR 87 and was aware, or should have been aware, of the relevant facts upon which a claim of actual bias against the Minister in that case was based.

The application was heard before French J on 18 May 1999. Prior to the hearing, counsel for the respondent was aware that there had been an appeal from the judgment of French J in Jia and that the appeal had been heard and judgment was reserved. On 21 May 1999, French J dismissed the application with costs. The respondent appealed.

On 15 July 1999, the Full Court of the Federal Court handed down its reserved decision in the appeal from the judgment of French J in Jia. The appeal was allowed by a majority on the ground that the decision of the appellant in that case to cancel Mr Jia's visa on the ground that he was not of good character, was induced or affected by actual bias within the meaning of s476(1)(f) of the Act.

In his submissions to the Full Court, the respondent referred to the decision of the Full Federal Court in Jia and stated that the Court had already found the Minister to be actually biased toward persons with convictions for serious crimes and that the respondent's circumstances are, in effect, similar to those of Mr Jia and therefore the Court should make a similar finding of actual bias in the Minister's decision to remove the respondent. In a decision dated 22 October 2000, the Court found, inter alia, that the fact that criminal sentencing Judge's remarks were not included in the submissions to the Minister provided no basis for a finding that the appellant's decisions were induced or affected by actual bias. In relation to the respondent's reliance on decision of the Full Court in Jia, the Full Court ordered that the appeal be adjourned and that the parties file and serve any affidavits upon which they might wish to rely. A further hearing of the appeal took place on 24 November 1999.

On 8 March 2000, the Full Court of the Federal Court handed down its decision, allowing the respondent's appeal and setting aside the appellant's decision of 14 October 1998 that he was satisfied that the respondent was not of good character and that his visa be cancelled. The Court found that the same inference should be drawn that the majority of the Full Court drew in Jia as to the Minister's state of mind on 10 June 1997, which was that he was incapable of persuasion; that the Tribunal's line of reasoning was acceptable when he came to decide whether Mr Jia was of good character. It further found that it should be inferred that, continuously between 10 June 1997 and 14 October 1998, the Minister's mind was closed to the possibility of a decision favourable to a person in the respondent's circumstances, by reason of his perception that a matter of sound policy or sound administration rather than law, a person who had been sentenced to no more than 1 year's imprisonment could not be of good character.

In relation to P74/2000, the grounds of appeal are:

• Whether the Full Court of the Federal Court of Australia erred in holding that the decision made by the appellant on 14 October 1998, that he was satisfied that the respondent was not of good character, and that the respondent's visa be cancelled, was induced or affected by actual bias;

• Whether the Court erred in drawing the inference on the same facts as were before the Full Court in Jia that, as at 10 June 1997, the appellant had prejudged the issue of whether Jia was a person not of good character;

• Whether the Court erred in drawing the inference that at the time of making his decision on 14 October 1998, the appellant had prejudged the issue of whether the respondent was a person not of good character; and

• Whether the Court erred in allowing the respondent to amend his original application and his notice of appeal and to adduce further evidence so as to enable the respondent to argue that the appellant's decision to cancel his visa and to declare him an excluded person were induced or affected by actual bias.

In relation to P81/2000:

On 5 October 2000, Kirby J ordered that the applications for prerogative relief by Mr White be returned before the High Court in Perth on the day of the hearing of the appeals with which the are connected.

The notice of motion of the applicant seeks a writ of prohibition directed to the respondent prohibiting him from proceeding to act on the decisions made by the Minister on 14 October 1998 by taking the applicant into detention in Australia or by removing him from Australia. The notice of motion also seeks a writ of certiorari directed to the respondent removing into this Court to be quashed the decisions made on 14 October 1998. The notice of motion further seeks that the respondent be restrained from removing the applicant from Australia until further order.

The grounds said to justify prerogative relief are:

• That the respondent failed to accord the applicant natural justice in making the decision that the applicant was not of good character and that a certificate of exclusion be issued; and

• That both of those decisions were induced or affected by the bias of the respondent towards the applicant or, in the alternative, that such decisions were made in circumstances where there was a reasonable apprehension of bias by the respondent against the applicant.

CLAY v. CLAY & ORS (P52/2000)

Court Appealed from: Full Court of the Supreme Court of Western Australia

Date of Judgment: 28 July 1999

Date of Grant of Special Leave: 16 June 2000

The appellant (Mrs Clay), is the widow of the late James Clay (Mr Clay) who died in 1970. The first respondents are the three children of Mr Clay's first marriage, Mrs Clay becoming their stepmother upon her marriage to Mr Clay. The first respondents ("the children"), were all born in the 1950's. Mr and Mrs Clay also had a child of their own, born in 1964 ("the fourth child") who is not a party to these proceedings.

Mr Clay disappeared in November 1970 whilst flying a light aeroplane in New South Wales. The wreckage was not discovered until some years after his death and, until October 1972, his affairs were managed by trustees after which the administration of the estate commenced and probate was granted.

Immediately prior to Mr Clay's death, he, Mrs Clay and all four children resided together as a family at a property at 24 Queenslea Drive, Claremont in Western Australia ("the Claremont property"). The property was owned by Mr Clay and had been his family home during the latter years of his first marriage.

Apart from a period from 1971 to 1973 Mrs Clay lived with the 4 children in the Claremont property. In due course all of the children left home, leaving Mrs Clay to reside there where she remained until the conclusion of these proceedings in the Supreme Court.

David Speed was appointed a trustee and executor under the terms of Mr Clay's will. By the terms of the will, the entire estate vested in Mr Speed with the power of sale and conversion with payout to be postponed until the estate vested in all four children on their attaining the age of 25 years. There was a discretionary power of advancement in favour of Mrs Clay during her life by which up to $20,000 a year might be paid to her out of income or corpus of the estate.

In March 1973, Mr Speed executed an instrument of transfer in respect of the Claremont property to Mrs Clay for the consideration of $45,000. Mrs Clay paid this sum from her own money. It is this transaction which has given rise to this litigation. It was the children's case that as at the date of transfer the true market value of the Claremont property was in the range of $60-65,000, that the sale was in breach of Mr Speed's duty as a trustee, and that Mrs Clay was a party to the breach by Mr Speed.

It was also the children's case that, as Mrs Clay was their legal guardian, she stood in a fiduciary relationship to them and to the fourth child and that this acquisition was in breach of her duties as a guardian. Alternatively, it was alleged that she intermeddled in the affairs of the estate thereby herself becoming a trustee and executor de son tort in which capacity it was alleged she owed fiduciary obligations to the children and the fourth child as residuary beneficiaries.

The current proceedings did not commence until 1994 with the children seeking relief by way of declaration of constructive or express trust. Issues arose regarding whether the action was limitation barred. The Claremont property is now of significant value.

The appellant was successful at trial but unsuccessful upon the children's appeal to the Full Court. The Full Court made orders with effect from 1 May 1973 (the date of settlement of the sale of the property), to the effect that the appellant holds or has held the property on trust as to one fourth share to each of the children save for the purchase price paid by her together with interest and some allowance for improvements effected by her over the period of her residence in the property. It was ordered that the property be sold and the net proceeds distributed amongst the parties in those shares.

The Full Court held that the appellant had breached her fiduciary duty as a guardian, notwithstanding the finding by the trial Judge that the appellant had paid a sum determined by the Valuer-General as being the true value of the property at the time. The Full Court concluded that the trustee did not have a defence under s50 of the Trustees Act 1963 (WA) and also held that the children's claim was not statute barred.

The grounds of appeal are:

• Whether the Full Court erred in law in concluding that by acquiring the property from David Speed, the appellant had placed herself in a position whereby there was a sufficient risk that her personal interest in acquiring and retaining the property might impede the faithful performance of her duty as guardian so as to constitute the acquisition of the property a breach of her fiduciary duty as guardian;

• Whether the Full Court erred in law in concluding that the trustee did not consult a valuer within the meaning of s50(1) of the Trustees Act 1962 (WA) and in consequence, erred in failing to conclude that the valuation of the Valuer-General was binding on all persons beneficially interested under the trust in the will;

• Whether the Full Court erred in law in concluding that the respondents' claim was not statute barred by reason of s25(2) of the Supreme Court Act 1935 (WA) or s47(1) of the Limitation Act 1935 (WA), and whether, in particular it erred in concluding that there was an express trust constituted by s10 of the Guardianship of Children Act 1972 (WA);

• Whether the Full Court erred in law in failing to give any reasons to support its conclusion that an express trust was constituted by s10 of the Guardianship of Children Act 1972 (WA);

• Whether, in the alternative, if the Full Court was not in error in finding that the appellant was in breach of her fiduciary duty as guardian, the Full Court erred in law by failing to consider whether there was an appropriate remedy which fell short of the imposition of a constructive trust; and

• Whether, in the alternative, if the Full Court did consider whether there was an appropriate remedy which fell short of the imposition of a constructive trust, it erred in law in failing to provide any reasons for reaching such a conclusion.

After the grant of special leave to appeal, the appellant filed a notice of motion seeking to expand the grounds of appeal to include:

• Whether, in acquiring the property, the appellant owed no fiduciary duty to the second named first respondent, he having attained his majority on 7 December 1972.

The first-named first respondent and the first-named second respondent have filed a notice of cross appeal and notice of contention, as have the second and third-named first respondents.

 

 

(Other than Applications for Special Leave to Appeal)

DECEMBER 2000

 

PATTERSON; EX PARTE TAYLOR (S165/2000)

The proceedings before the Court challenge a decision that the prosecutor be deported from Australia to England.

The prosecutor who is now aged 40, was born in England and came to Australia at the age of 7. He arrived on his father's passport. He was raised and educated in Australia. He has never been overseas. Originally he was a British subject resident in Australia without differentiation from Australian citizens. Subsequently, the law was changed and this change affected his status. He is on the electoral roll and is an elector of the Commonwealth.

In 1996, the prosecutor pleaded guilty to eight counts of sexual assault and acts of indecency involving young boys, mostly aged 11. He was sentenced to a minimum term of three and a half years imprisonment to be released in August 1999. Immediately after his release, the Minister for Immigration and Multicultural Affairs cancelled his visa under s501(2) of the Migration Act 1958 (Cth) ("the Act"). The prosecutor was taken into custody. He commenced proceedings in this Court seeking writs of prohibition, certiorari and habeas corpus against the Minister for Immigration. On 19 March 2000, Callinan J granted an order nisi on the ground of denial of natural justice (but not unreasonableness). Subsequently, the Minister consented to that order being made absolute, as it was by Callinan J on 11 April 2000. The prosecutor was then released from detention and returned to Gunnedah where he lives with his aged mother and brother.

On 30 June 2000, the respondent Parliamentary Secretary, Senator Patterson, cancelled the prosecutor's visa under s501(3) of the Act. Unlike s501(2) this procedure does not require the provision of natural justice before a decision, but the Minister must be satisfied that deportation is justified in the national interest.

The prosecutor contends that the decision was in excess of jurisdiction and void because, while there was a reasonable suspicion that the prosecutor did not pass the character test (because he had a substantial criminal record for relevant purposes)

1. the relevant decision was not made by the Minister personally, but by his Parliamentary Secretary;

2. no reasonable repository of the s501(3) power could have been satisfied that cancellation of the prosecutor's visa was in the national interest;

3. the Migration Act, insofar as it purports to authorise the cancellation of the prosecutor's visa is not a valid law of the Commonwealth as the prosecutor is no longer an immigrant and never was an alien; and

4. the respondent in making the decision took into account an irrelevant consideration, namely the wishes of Minister Ruddock.

An order nisi was granted by Kirby J on 29 September 2000.

 

MARSHALL v. DIRECTOR-GENERAL, DEPARTMENT OF TRANSPORT (B74/1999)

Court Appealed from: Court of Appeal of the Supreme Court of Queensland

Date of Judgment: 22 October 1999

Date of Grant of Special Leave: 21 June 2000

The appellant claimed compensation from the respondent under the Acquisition of Land Act 1967 (Qld) ("the Act") as a result of the compulsory resumption of a strip of land on the boundary of the applicant's property which adjoined the Bruce Highway. The resumption was to permit the extension of the highway.

The appellant's claim for compensation included a claim for damages due to injurious affection. This was based on the appellant's claim that the highway extensions had altered the drainage systems for Eudlo Creek and that in consequence, parts of the appellant's land that had not been resumed were rendered more susceptible to flooding.

Initially, the appellant's claim came before the Land Court, which heard conflicting expert evidence. The Land Court found that the road surface of the new carriage way, the new culverts and the extended bridge, which were all part of the highway extensions, were all located on the original road reserve. The Land Court applied the principle in Edwards v. Minister for Transport [1964] 2 QB 134 and held that the claim for injurious affection could not be entertained at law. As a result of this conclusion, the Land Court did not proceed to resolve any conflicts in the evidence.

The appellant appealed to the Land Appeal Court and applied to adduce fresh evidence. The Land Appeal Court came to the same conclusion as the Land Court and dismissed the appeal and the application.

The appellant then appealed to the Court of Appeal to which an appeal lay pursuant to s45 of the Land Act 1962. The Court of Appeal allowed the appellant to challenge the correctness of Edwards v. Minister for Transport, but concluded that the additional compensation of the kind claimed by the appellant "... could not be granted unless at the very least some damage to the balance land was caused by (or by the use of) works performed on the resumed land." The Court of Appeal dismissed the appellant's appeal taking the view that Edwards v. Minister for Transport was settled law.

The grounds of appeal are:

• Whether the Court of Appeal erred in concluding that s20 of the Acquisition of Land Act 1967 (Qld), as amended, bore a meaning similar to that adopted in relation to s63 of the Land Clauses Consolidation Act 1845 (UK) in Edwards v. Minister for Transport [1964] 2 KB 134; and

• Whether the Court of Appeal erred in concluding that for the purposes of s20 of the Acquisition of Land Act 1967, Edwards' case should be taken as settled law.

HOLLIS v. VABU PTY LTD t/as CRISIS COURIERS (S149/2000)

Court appealed from: Supreme Court of NSW, Court of Appeal

Date of judgment: 5 November 1999

Date of grant of special leave: 16 June 2000

The appellant was knocked down on a footpath by a bicycle courier wearing the uniform of the respondent. The appellant sued the respondent in negligence claiming that the courier was riding the bicycle as its servant and agent and that the respondent was in breach of a duty of care owed to the appellant.

The respondent, trading as Crisis Couriers, conducted a parcel and document courier business. It contracted with approximately 25-30 persons who worked for it as bicycle couriers. The couriers were independent contractors. The respondent had public liability insurance cover, under which policy it was stated that the 'Insured' included 'sub-contractors' in respect of work done on behalf of Crisis Couriers. The respondent levied the couriers each week and used this money to pay the insurance premium.

The trial judge gave judgment for the respondent. The appellant appealed against this decision. The majority of the Court of Appeal found that the respondent engaged the couriers as independent contractors to carry by bicycle, parcels and documents on its behalf and in fulfilment of engagements it had with third parties, saying: "To the extent to which parcels and documents are carried on ... a particular bicycle, the ... rider owes the ordinary duty of care to other users of public streets. If that ... rider is an employee of Vabu, Vabu is vicariously responsible for any breach by the ... rider of that duty. If that ... rider is an independent contractor ... Vabu is not vicariously liable for such a breach."

Davies AJA, dissenting, considered that the respondent was liable for the acts of its bicycle couriers when they were riding in the course of its business. His Honour said: "Taking account of the vulnerability of pedestrians, of the respondent's recognition that there was a need for insurance to cover public liability claims, of its deduction from the couriers' remuneration of weekly amounts to meet the premiums and of the fact that it was the respondent's own act of obtaining insurance in its own name, thereby doing nothing to relieve the vulnerability of injured pedestrians, it seems to me that the circumstances were such as to impose upon the respondent personal liability for the acts of its couriers done in the course of its business. The respondent, by the structure of its business, not only created the risk to pedestrians, but, failed to exercise due care to avoid such risks and failed to take the steps which were necessary to alleviate the problem that injured pedestrians would be unable to recover."

The grounds of appeal are:

• The Court of Appeal was in error:

• When it found that the respondent was not vicariously liable for torts committed during the course of work being performed at its request, and on its behalf by bicycle couriers retained by it;

• When it failed to find that within the neighbourhood of the respondent's delivery area, it owed a duty of care to pedestrians, because of the inherent risk of injury to them created by its system of work, including its system of remunerating couriers retained by it;

• When it failed to find that the respondent owed a general duty of care to pedestrians lawfully using footpaths and roads within the respondent's delivery area; and

• When it failed to find that the respondent was subject to a duty to devise a system of work which would ensure that the bicycle couriers whom it employed to deliver and pick up articles would do so safely.

COMMISSIONER OF TAXATION v. CONSOLIDATED PRESS HOLDINGS LIMITED (S127/2000)

COMMISSIONER OF TAXATION v. MURRAY LEISURE GROUP PTY LIMITED (S128/2000)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 7 September 1999

Date of grant of special leave: 26 May 2000

These appeals concern dividend stripping and the statutory construction of s177E which forms part of Part IVA of the Income Tax Assessment Act 1936 ("the Act").

Consolidated Press Holdings Ltd ("CPH"), CPH Property Pty Limited and Murray Leisure Group Pty Limited ("MLG") are all part of the Consolidated Press Group of Companies ("the Group"). Prior to 16 May 1990 the two holding companies for the overseas members of the Group, namely Consolidated Press International Limited ("CPIL(UK)") and Consolidated Press International Holdings Limited ("CPIHL(UK)") were incorporated in as non-residents of the United Kingdom.

In May 1988 announcements were made by the UK Chancellor and the Australian Treasurer about proposed changes to the tax legislation respectively of the UK and of Australia. The Group was advised that the overseas holding companies should be relocated from the UK to a tax haven. The Bahamas was chosen as the appropriate location for the new holding structure and on 5 April 1990 two companies were incorporated in the Bahamas under the names Consolidated Press International Ltd ("CPIL(B)") and Consolidated Press International Holdings Ltd ("CPIHL(B)").

The Commissioner proceeded upon the basis that s 177E of Part IVA, relating to dividend stripping schemes, applied to transfers of shares by CPH and MLG in each of CPIL(UK) and CPIHL(UK) to CPIL(B) and the subsequent liquidation of the two United Kingdom companies & associated arrangements. The judge at first instance identified the elements necessary to attract the application of s177E. He also distinguished the essential character of dividend stripping. He allowed the appeals of the respondents against the assessments made by the Commissioner.

On appeal, the Full Federal Court concluded that s177E was intended to apply only to schemes which can be said to have the dominant purpose of tax avoidance. The Court found that "[t]he section was not intended...to apply to a 'scheme' entered into or carried out primarily for business or other purposes unconnected with avoidance of tax, even if the scheme is implemented in a manner that produces taxation avoidance ... In our view the first limb of s177E(1) embraces only a scheme which can be said to have the dominant (although not necessarily the exclusive purpose) of avoiding tax." The Court held that the scheme was not by way of or in the nature of dividend stripping and therefore was not within the first limb of s177E(1)(a).

The Full Court also considered the second limb of s177E(1)(a). The primary judge held that the scheme had "substantially the effect of a scheme by way of or in the nature of dividend stripping" and therefore fell within the second limb of s177E(1)(a). The primary judge's reasoning had proceeded on the basis that there was a difference between the purpose and effect of a scheme. However, the Full Court held that a scheme is not within the second limb unless the dominant purpose of the scheme is that of tax avoidance in the sense explained earlier. Therefore the scheme in the present case was not within the second limb of s177E(1)(a).

The Full Court unanimously dismissed the Commissioner's appeals.

The grounds of appeal include:

• The Full Court failed properly to construe the meaning of:

1. "a scheme by way of or in the nature of dividend stripping" in s177E(1)(a)(i) of the Income Tax Assessment Act 1936 ("the Act"); and

2. "a scheme having substantially the effect of a scheme by way of or in the nature of a dividend stripping" in s177E(1)(a)(ii) of the Act.

• The Full Court erred in holding that:

1. a scheme is by way of or in the nature of dividend stripping within the meaning of s177E(1)(a)(i); and

2. a scheme has substantially the effect of a scheme by way of or in the nature of a dividend stripping within the meaning of s177E(1)(a)(ii), only if the scheme can be said objectively to have the sole or dominant purpose of avoiding tax.

 

 

CPH PROPERTY PTY LIMITED v. COMMISSIONER OF TAXATION (S132/2000 and S133/2000)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 7 September 1999

Date of grant of special leave: 26 May 2000

CPH Property Pty Limited ("CPH Property", the appellant) and Murray Leisure Group Pty Limited ("MLG") are all part of the Consolidated Press Group of Companies ("the Group"). Consolidated Press Holdings Limited ("CPH") is the holding company for the Group and its ultimate shareholder is a private company beneficially owned by Mr Kerry Packer.

In April 1989, the Group participated in a takeover bid for British conglomerate BAT Industries Plc. As part of that bid, the Group needed to demonstrate it had sufficient funds to proceed. Consolidated Press Finance Limited, the finance company in the Group, raised funds on-market in Australia which it loaned at interest to CPH Property. At that time, CPH Property was known as Australian Consolidated Press Limited ("ACP"), and operated the magazine publishing business of the Group.

CPH Property subscribed for redeemable preference shares in MLG, a holding company, which then subscribed for shares in Consolidated Press International Limited (CPIL(UK)), a UK incorporated company which was the holding company for the Group's international operations. CPIL(UK) loaned the funds at interest to CPH Investment (Singapore) Pty Limited which took a one-third equity position in the bidding vehicle. Ultimately, the bid for BAT was withdrawn due to regulatory problems.

The issue in these matters concerns Section 79D of the Income Tax Assessment Act 1936 ("the Act") and Part IVA of the Act to what is said to be a scheme whereby deductions relating to foreign source income were offset against taxable income of CPH Property. Section 79D of the Act was enacted in 1988 to restrict the offsetting of losses relating to assessable foreign income against Australian income. Section 79D replaced former Section 51(6) of the Act, and was further amended with effect from the year commencing 1 July 1990.

The question of the proper construction of s79D of the Act arose in relation to the assessments issued against CPH Property for the years of income 1988-1989 and 1990-1991. The trial judge held that the assessments were excessive and he allowed the applications of the taxpayer. The Commissioner appealed in each matter. At the core of the appeals was the proposition that the trial judge erred in holding that s79D of the Act as in force in the 1988-1989 income year had no application where, in the year of income, no foreign source income was derived. It was also a ground that the trial judge erred in failing to hold that the dominant purpose of a participant in the scheme as found by him, namely to bring about the result that a deduction would be allowed to ACP which, but for the scheme, would have been disallowed because of the application of s79D, was not a purpose of enabling ACP to obtain a tax benefit in connection with the scheme.

For Part IVA to apply to the relevant scheme in the circumstances of this case, a finding must be made that the person or one of the persons who entered into or carried out the scheme or any part of the scheme, did so for the sole or dominant purpose of enabling the relevant taxpayer to obtain a tax benefit in connection with the scheme. The consideration which leads to a finding on that issue must have regard to the eight necessary criteria set out in s177D(b) of the Act.

The trial judge commented that the scheme was entered into on the advice of the firm Arthur Young. The Full Court held that the relevant dominant purpose can be found by reference to the purpose of the advisers to the Group.

The Full Court unanimously allowed the Commissioner's appeals.

The grounds of appeal include:

• The Full Court erred in holding that it was permissible to take account of matters other than the eight matters to which s177D(b)(i)-(viii) of the Income Tax Assessment Act 1936 ("the Act") refers in reaching the conclusion required by s177D(b) of the Act;

• The Full Court erred in concluding that the dominant purpose of an unidentified person who was not a party to the scheme identified by the respondent could be attributed to the appellant in determining the conclusion to be drawn under s177D(b) of the Act; and

• The Full Court erred in concluding that the share acquisitions identified by the respondent as the scheme, was a scheme within the meaning of s177A of the Act.

COMMISSIONER OF TAXATION v. COMMERCIAL NOMINEES OF AUSTRALIA LIMITED (S150/2000)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 22 October 1999

Date of grant of special leave: 16 June 2000

The respondent is the Trustee of the Miden Group Superannuation Fund ("the Fund") which was established by a trust deed dated 11 March 1988. The Fund was established initially for the purposes of providing superannuation benefits for employees of a company known as Miden Pacific. The Fund incurred significant losses for income tax purposes in the 1989 and 1990 years of income. The Fund deed was amended by a deed dated 1 November 1993, but expressed to be effective from 1 July 1992 ("the Amending Deed"). Under the Amending Deed the operative rules of the Fund were replaced and one of the changes effected was a change in the nature of benefits to which members were entitled. Another change was the introduction of a provision allowing employers to join as participating employers so as to enable employees of such a participating employer to become members without reference to Miden Pacific. By 4 November 1993, receivers had been appointed to Miden Pacific.

This appeal concerns the availability in the year ended 30 June 1995 of losses incurred in 1989 and 1990 to be carried forward under ss79E and 80 of the Income Tax Assessment Act 1936 ("the Act"). In the 1995 year of income the Fund returned a taxable income of $165,881 and sought a deduction in respect of carry forward tax losses of $11,285,876 from the 1989 and 1990 years of income. The respondent contends that at all material times the Fund continued and that accordingly, the respondent is entitled to a deduction of those losses. The appellant contends to the contrary.

The Administrative Appeals Tribunal ("the AAT") found that the Fund in the 1995 year of income was the same Fund as the Fund that existed in the 1989 and 1990 years of income and was accordingly entitled to a tax deduction for the carry forward losses under ss80(2) and 79E of the Act for the 1989 and 1990 years respectively. The AAT held that the hallmark of continuity lay in the purpose for which the Fund was established.

The appellant appealed to the Federal Court from the AAT's decision. It argued that the objects of the Fund and the obligations undertaken in administration of the Fund, were so altered by the amendments made to the Original Trust Deed on 1 November 1993 that those objects and obligations related to a new entity which commenced on that day. Accordingly, it was submitted, any prior losses able to be carried forward and utilised by the previous entity under ss79E and 80 of the Act were not losses which the new entity may deduct from its assessable income pursuant to those provisions.

The Full Federal Court found that the AAT's conclusion was correct and dismissed the appeal.

The grounds of appeal include:

• The Full Court erred in holding that the respondent was entitled to a deduction for carry forward losses and in doing so:

• Wrongly held that the same taxpayer in relation to a superannuation fund for trust estate will exist for the purposes of the Income Tax Assessment Act 1936:

1. Where there has been some degree of continuity of the trust property or corpus that earns the income from the income year of loss to the income year of derivation of assessable income; and

2. Where there has been continuity of the regime of trust obligations affecting the property in the sense that any amendment of those obligations was in accordance with such terms of the original trust as providing for amendment, and

• Wrongly held that it was not to the point whether the changes wrought by the Amending Deed effected a resettlement of the trusts of the superannuation fund or not.

The appellant will move the Court on 14 December 2000 for leave to amend the notice of appeal to add an additional ground of appeal.

The additional ground of appeal that the appellant seeks to rely on is:

• If the Miden Group Superannuation Fund, as it existed in the 1989 and 1990 years of income, did exist in the 1995 year of income, then the Amending Deed effected a resettlement such that there co-existed a separate fund called the Midas Executive Superannuation Plan, with the consequences that:

1. the appellant in its capacity as trustee of the Miden Group Superannuation Fund is entitled to a deduction in the 1995 year of income, to the extent permitted by ss80 and 79E respectively, for the losses incurred in the 1989 and 1990 years of income; but

2. the appellant in its capacity as trustee of the Midas Executive Superannuation Plan is not so entitled to such deductions.

 

 

(Other than Applications for Special Leave to Appeal)

FEBRUARY 2001

THE COMMONWEALTH OF AUSTRALIA v. YARMIRR & ORS (D7/2000)

YARMIRR & ORS v. THE NORTHERN TERRITORY OF AUSTRALIA & ORS (D9/2000)

Court Appealed from: Full Court of the Federal Court of Australia

Date of Judgment: 3 December 1999

Date special leave granted: 4 August 2000

On 22 November 1994, five clans of Aboriginal peoples applied under the Native Title Act 1993 (Cth) for a determination of native title in relation to an area of sea territory in the vicinity of Croker Island in the Northern Territory. They claimed exclusive occupation, possession, use and enjoyment of the claimed area as well as lesser rights. More specifically, the native title rights and interests claimed included a right of access to waters and sea bed, a right to control the access of others to the waters and sea bed, and an exclusive right to hunt, fish and gather food and material in the waters and from the sea bed and a right to trade in the resources of the claim area. The rights claimed also included exclusive possession of the waters and seabed and exclusive ownership of living marine organisms found permanently or from time to time within the waters or on the seabed. The Aboriginal groups also claimed rights to receive and to pass on the religious and cultural knowledge associated with the waters and the land and the right and responsibility to care for and to protect the sites of significance in the waters and on the land.

The application was heard by Olney J between 22 April 1997 and 21 August 1997. The Commonwealth and the Northern Territory as well as a group known as the "fishing industry parties" were all party to these proceedings. The Aboriginal groups relied on the evidence of senior members of their clans and the expert evidence of two anthropologists with extensive expertise and experience in Aboriginal land tenure in the region, in the preparation of genealogies and the mapping of sites.

On 6 July 1998, the trial Judge handed down his decisions and made findings in relation to the nature and constitution of the clans (or estate groups), the extent of their estates and the nature and content of the rights they enjoyed in the particular estates pursuant to traditional law and custom. While the trial Judge upheld the Aborigines' claims with respect to native title in relation to the whole of the claim area, he held that the rights could not confer possession and occupation of the sea and sea bed to the exclusion of all others. His Honour found that the Aborigines had established non-exclusive native title rights to fish, hunt and gather within the claimed area, and to access the area for specified purposes. He further held that those limited rights could be recognised by virtue of the off-shore operation of the Native Title Act. His Honour also held that the Aborigines had rights and obligations to protect places of spiritual and cultural importance from unauthorised and inappropriate use.

Both the Aboriginal groups and the Commonwealth appealed from Justice Olney's judgment and orders. The Northern Territory and fishing industries parties supported the Commonwealth in each appeal.

On 3 December 1999, the Full Court handed down its judgment, unanimously dismissing the appeal of the Commonwealth. In relation to the Aboriginal claimants, the majority of the Court held that the trial Judge erred in seeking to establish the nature of the rights and interests enjoyed under the traditional laws and customs of the Aboriginal groups at the time at which the Crown acquired sovereignty. Their Honours dismissed the appeal with respect to the Aborigines' claim of exclusive rights of fishing and rights to exclude others from the claim area. They also rejected the Aborigines' claim to a right to trade in the resources of the claim area.

The grounds of appeal of the Commonwealth (D7/2000) are:

• Whether the majority erred in that it wrongly construed the Native Title Act so as to provide the basis for recognition of native title beyond the limits of the Northern Territory;

• Whether the majority erred in that it ought to have held that no native title exists within that part of the claim area outside the limits of the Northern Territory for reasons that the common law does not, of its own force, apply outside the said limits; no law of the Commonwealth or of the Northern Territory provides a basis for the recognition of native title outside the said limits; and in the absence of a law of the Commonwealth or of the Northern Territory making such provision, no basis exists for the recognition of native title outside the said limits;

• Whether the majority erred in failing to hold that no native title exists in that part of the claimed area which lies beyond the seaward limit of the coastal waters of the Northern Territory as defined by the Coastal Waters (Northern Territory Powers) Act 1980 (Cth) for the reasons set out above and for the further reasons that neither the Commonwealth nor the Northern Territory has radical or other title in or to the said area and the extension by Australia of its territorial sea to 12nm did not so affect the legal character or status of that area that it ceased to be regarded for the purposes of the common law as territory external to Australia and governed by international law subject only to the valid exercise of legislative power by the Commonwealth, the states and the territories; and

• In the absence of any/sufficient evidence of traditional or other occupation or use by the First Respondents, the learned trial judge erred in determining that native title exists in a particular part of claimed area and the Full Court erred in failing to determine that the trial judge had so erred and in failing to amend the determination of the trial judge accordingly.

The grounds of appeal of the Aboriginal claimants' (D9/2000) are:

• Whether the majority of the Full Court erred in failing to hold that under traditional laws/customs observed by them, native title holders had a significant spiritual connection with the waters and sea-bed in the claim area, had spiritual responsibility for the claim area, were entitled to require that people and vessels stay outside particular areas at particular times in accordance with traditional laws and customs, had an exclusive right to fish, hunt and gather in the claim area, had a right to possess, occupy, use and enjoy the claim area generally to the exclusion of all others, had a right to control the use and enjoyment of the resources in the claim area;

• Whether the majority erred in failing to hold that the public rights to fish, to navigate and of innocent passage in the claim area did not preclude recognition of exclusive rights of fishing, hunting and gathering by native title holders nor prevail over any such inconsistent rights of native title holders;

• Whether the majority erred in having held that to constitute native title rights and interests, s223 of the Native Title Act required only that the rights and interests be those currently possessed under traditional laws and customs observed and the trial judge, having found that traditional laws and customs required that persons other than members of the particular estate group of native title holders required permission of a senior member of the estate group to use and enjoy the sea-country of the estate group, the majority erred in failing to hold that the trial judge erred in holding that traditional law and custom did not extend to exclusive control of the use and enjoyment of the claim area because it could not have binding effect on non-Aboriginal people; and

• Whether the majority erred in holding that the application extended to the waters which overlay the shores of the land and islands from time to time between the low and high water marks and whether it erred in failing to hold that the application did not extend to such waters because the column of air or waters from time to time over the inter-tidal zone was included in the fee simple estate granted to the Ninth Respondent (the Land Trust) under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (which included the inter-tidal zone) and was in terms excluded from the application under the Native Title Act.

HENVILLE & ANOR v. WALKER & ANOR (P55/2000)

Court Appealed from: Full Court of the Supreme Court of Western Australia

Date of Judgment: 9 August 1999

Date special leave granted: 16 June 2000

In 1995 the respondents, through the first respondent Mr Walker, represented to the appellants, through the first appellant Mr Henville, that the property market in Albany favoured the sale of quality home units, and that if certain units were to be built on a certain property of which Mr Walker was the selling real estate agent, each could be sold for $250,000 to $280,000.

In reliance on those representations, Mr Henville, a retired architect and property development consultant purchased the property in Albany. He proceeded to construct three quality home units on the property. The units, however, were sold for prices that in the aggregate amounted to $545,000. The cost of the development amounted to $846,846.51. The appellants claimed, as damages, the costs less the net proceeds of sale, on the basis that the respondent had engaged in misleading conduct in breach of s52 of the Trade Practices Act.

It was the respondents' case at trial that it was Mr Henville's own conduct in relying upon his feasibility assessment (which underestimated the costs associated with the development) that had been the cause of the appellants' loss and damage.

At trial, it was found that Mr Walker's representations had constituted misleading conduct that caused the appellants to sustain loss, however, it was also found that there were several other causes which had contributed to the loss. These included carelessness on the part of Mr Henville and his adviser in calculating the costs of the development and other factors that had led to the costs of construction being increased. The amount of damages awarded at trial sought to accommodate these various causes.

The respondents appealed, arguing that Mr Walker's misleading conduct was not, in law, the true cause of the loss or, in the alternative, that the appellants had failed to properly prove their loss. The appeal was upheld.

The grounds of appeal are:

• Whether the Full Court erred in interpreting the word 'by' in s82 of the Trade Practices Act 1974 (Cth) felt compelled to identify and isolate a cause of the appellants' loss and damage instead of acknowledging there were to concurrent causes (the respondent's misleading and deceptive conduct and the appellant's folly);

• Whether the Full Court in applying the common sense test of causation erred in testing whether the respondent's misleading conduct caused loss by, in effect, inquiring into what the appellants would have done or what would have occurred had the representation constituting the misleading conduct (as to the selling price of each unit) been true instead of misleading, rather than by testing causation by reference to what the appellants would have done had the respondents' conduct not occurred and or had the respondents represented the true position;

• Whether the Full Court erred in artificially elevating conduct that was in effect contributory negligence to the sole cause of the appellant's loss and damage;

• Whether the Full Court erred in finding that an absence of evidence segregating losses attributable to the respondents' misleading conduct, and losses incurred by the appellant's inadequate financial resources and delays, precludes an entitlement on the part of the appellants to any award of damages whatsoever and/or that there was an absence of evidence segregating such losses.

PETERS (WA) LTD v. PETERSVILLE LTD & ANOR (P64/2000)

Court Appealed from: Full Court of the Federal Court of Australia

Date of Judgment: 14 September 1999

Date special leave granted: 4 August 2000

In the early 1900's an American, Mr F A B Peters, established various Peters ice cream manufacturing businesses around Australia. Separate businesses were established under separate ownerships in New South Wales, Victoria, Queensland and Western Australia. In the late 1920's the operators of those separate businesses entered into agreements under which they did not encroach on each others' markets and cooperated in relation to the sharing and marketing of technical information. The respondent became the operator of the Western Australian business in 1929, under the name of "Peters American Delicacy Co (WA) Limited".

In the 1930's, a group of families in Queensland founded Pauls Ltd to compete in the ice cream market with the Peters company in Queensland. In 1960 Pauls Ltd and Peters companies in Queensland amalgamated to form a company referred to by the trial Judge as "QUF". By 1980, QUF manufactured ice cream in Queensland, Victoria and Western Australia which it sold in Queensland under both the Peters and Pauls brands, but elsewhere solely under the Pauls brand. By that time, all of the other Peters ice cream businesses (other than in Western Australia and Queensland), had been consolidated into a company called Petersville Ltd, the first named respondent.

In 1980, Petersville and QUF established a partnership under the name "Australian United Foods" (AUF) and manufactured and sold ice cream under the Pauls brand nationally and under the Peters brand in every state except Western Australia. At that time, the appellant manufactured and sold ice cream under the Peters brand in Western Australia and continues to do so. On 15 February 1983 AUF sold their Western Australian ice cream business to the appellant under an agreement entered into on that day. The contract contained a clause entitled "Future Arrangements" which operated as a constraint on both QUF and Petersville selling, supplying or distributing such products or carrying on such a business for the period of the "Licensing Arrangements" referred to in the contract.

The question before the primary Judge and on appeal to the Full Court of the Federal Court of Australia related to the validity of the future arrangements clause which was clause 7 of the principal agreement. Clause 7.1 set out various covenants not to sell, supply or distribute ice cream in Western Australia during the period of particular licensing arrangements referred to in Article 5 of the principal agreement. The first term of the licensing arrangement ended in December 1997 and the appellant exercised the first of 3 options, each for a 5 year extension, when the matter was first heard.

The appellant contended that the restraint was connected with an ongoing contractual relationship between the parties and in particular was connected with, and incidental to, licensing arrangements for the use of the respondent's brand or mark "Pauls" in Western Australia. The trial judge accepted that there was a connection but that the restraint was not confined to the protection of the licensor's right in relation to the Pauls mark and all product names that had extended to any ice cream or frozen confection sold under any name whatsoever and was not confined within Western Australia.

His Honour concluded that the restraints imposed such a fetter that the licensing and other arrangements when read with the restraint, could not be characterised as agreements for the regulation and promotion of trade, but had the predominant character of being in restraint of trade within the common law meaning. His Honour then addressed whether the restraint could be said to be reasonable having regard to the interest of the parties at the time it was entered into. In holding that the protection given by the covenant was beyond that which was reasonably required, his Honour took into account the fact that a substantial sum was paid for the good will of the business, the fact that under the provisions of the principle agreement, the respondent's employees remained with the business as employees of the appellant and this would have substantially assisted in maintaining the business. Thus, his Honour held that the restraint was void and that there was no legislation in Western Australia which enabled the Court to alleviate that consequence.

On appeal to the Full Court of the Federal Court of Australia, the appellant argued that the doctrine of restraint of trade does not apply to ordinary commercial contracts for the regulation and promotion of trade provided that the prevention of work outside the contract is directed towards the absorption of the parties' services. The Full Court noted that authorities on restraint of trade have been concerned with the practical effect of the covenant and that, upon a review of the evidence, the Court was of the view that the restrictions imposed amounted to a restraint. They further held that the restraint was not reasonable and that while some restraint could be justified one of such duration could not.

The appellant also raised s51(2)(e) of the Trade Practices Act 1974 (Cth) which provides that, in determining whether a contravention of some of the provisions of Part IV has been committed, regard is not to be had: "in the sale of a contract for the sale of a business ... to any provision of the contract that is solely for the protection of the purchaser in respect of the goodwill of the business". The Full Court found that it was not apparent why the appellant submitted that the restraint was within the scope of that provision, since the section has regard to what is not to be taken into account in determining whether another provision had been contravened.

The grounds of appeal are:

• Whether the Full Court erred in holding that the common law restraint of trade doctrine applied to the covenant in that it posed the wrong test, namely, whether the covenant was within a "category of restraint which the Courts have held to be justified, and therefore exempt from the common law doctrine";

• Whether the Full Court should have recognised that the common law doctrine has no application to covenants which are a normal incident of a positive and continuing commercial relationship and which are no more than co-extensive with that relationship or in the alternative, whether the Court erred in failing to hold that the covenant was reasonable and in the publics' interests; and

• Whether the Full Court erred in concluding that the covenant did not come within the scope of s51(2)(e) of the Trade Practices Act 1974 (Cth) when it should have held that the goodwill to which that section refers includes sources of goodwill including licensing and other ongoing commercial relationships and that the covenant was solely for the protection of the purchaser in respect of goodwill.

DOGGETT v. THE QUEEN (B54/2000)

Court Appealed from: Court of Appeal of the Supreme Court of Queensland

Date of Judgment: 29 October 1999

Date special leave granted: 21 June 2000

In June 1999 in the District Court of Queensland, the appellant was convicted of 7 counts of various sexual offences in relation to a girl under the age of 16 years. At the time of the offences, the complainant was aged between 8 and 15 years. The offences were alleged to have been committed from between October 1979 and November 1986.

At trial, apart from the evidence of the complainant, there was evidence of a recent taped telephone conversation between the complainant and the appellant during which he admitted to having molested her as a child and expressed regret at having done so.

The appellant appealed to the Court of Appeal, on the ground that the verdicts were unsafe and unsatisfactory. The appellant later added a ground relating to the trial judge failing to adequately warn the jury of the danger of convicting, having regard to the complainant's lengthy delay in making a complaint.

In coming to its conclusion to dismiss the appeal, the Court of Appeal concluded that a direction of the kind discussed in Longman v. The Queen (1989)165 CLR 79, was not required. Essentially, the Court held that because of the highly corroborative nature of the recorded telephone call, it would have been wrong to suggest to the jury that it would be dangerous to convict on the appellant's testimony regarding events that had occurred so long ago.

The ground of appeal is:

• Whether the Court of Appeal erred in deciding that it was unnecessary for the trial judge to direct the jury that, as the evidence of the complainant could not be adequately tested after the passage of such a significant period of time, it would be dangerous to convict on the complainant's evidence alone unless the jury, scrutinising the evidence with great care, were satisfied of its truth and accuracy.