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Thursday, 01 July 2010 15:54

Full Court Matters - March 2001

(Other than Applications for Special Leave to Appeal)

COMMENCING 6 MARCH 2001

WARD & ORS v. CROSSWALK PTY LTD & ORS (P67/2000)

THE STATE OF WESTERN AUSTRALIA v. WARD & ORS (P59/2000)

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY v. WARD & ORS (P62/2000)

NINGAMARA & ORS v. THE NORTHERN TERRITORY OF AUSTRALIA & ORS (P63/2000)

Court Appealed from: Full Court, Federal Court of Australia

Date of Judgment: 3 March 2000

Date special leave granted: 4 August 2000

The proceedings in these matters were commenced, by one of three Aboriginal groups, with an application lodged under the Native Title Act 1993 (Cth) on 6 April 1994. Following the lodgment of the application, two further native title claimant groups were joined to the proceedings. Each group sought a determination of native title in respect of lands and waters in the north of Western Australia and, in the case of two of the claimants, adjacent land in the Northern Territory.

The impugned land included land subject to numerous different land tenure and use including vacant Crown land, pastoral leases, Crown land in or about the town of Kununurra, the Ord River irrigation area, Lake Argyle and the Argyle Diamond Project and the Keep River National Park. The waters, subject to the claim, included an area within the inter tidal zone on the east side of Cambridge Gulf.

P67/2000 (Appeal by the Miriuwung Gajerrong Native Title Claimants)

In the appeal in matter P67/2000, the applications for determination of native title related to land in the East Kimberley region of Western Australia and adjacent to the Keep River National Park area of the Northern Territory. At the time the application was made the claim area was Crown land or land belonging to the Crown in the State of Western Australia and the Northern Territory. However, at various times between the 1880's and the date of making the application, the claim area had been subject to statutory grants made by the Crown including numerous pastoral leases and various leases made pursuant to legislation of the Western Australian and Northern Territory parliaments. In addition, in the 1960's and early 1970's, a substantial portion of the land within the claim area had been resumed under s109 of the Land Act 1933 (WA). In 1972 and 1975, additional lands were compulsorily acquired pursuant to the Public Works Act 1902 (WA) for the purposes of the Ord Irrigation Project.

Within the claim area, there were various historic reserves created under various pieces of Western Australian land legislation. In addition, a portion of the land resumed for the Ord Irrigation Project was reserved in order to establish the Mirima National Park. Within the claim area, there were various laws to control human activities on certain lands operating at the time of the application.

From the numerous parties that had an interest in the application for a native title determination, the initiating application was brought by the Miriuwung and Gajerrong people. Cecil Ningamara and other Aboriginal people who claimed an interest in the Territory area separate from that of the Miriuwung and Gajerrong people, became the second applicants. The third applicants were the Balangarra peoples who claimed native title in respect of Booroongoong Island.

The respondents at trial were The State of Western Australia as first respondent, the Northern Territory as the second respondent, and various other parties with an interest in the claimed lands.

The trial Judge, Lee J, found that native title existed in respect of the claim area and that the holders of that title were the Miriuwung and Gajerrong people. His Honour further held that the Miriuwung and Gajerrong people and the Balangarra peoples held native title over Booroongoong Island. Justice Lee also found that, in respect of certain portions of the claim area, native title had not been extinguished but had been regulated, controlled, curtailed, restricted, suspended or postponed by virtue of various laws of Australia, the State and the Territory.

On appeal to the Full Court of the Federal Court of Australia, the Court unanimously upheld the trial Judge's finding that native title existed in respect of the whole of the claim area. However, the majority of the Court disagreed with the trial Judge's finding that native title had not been extinguished in much of the claim area. The majority found that native title could be partially extinguished and that, save in a small area of mud flats, native title had been partially extinguished by the historic granting of pastoral leases and other statutory grants and controls. The majority also found that total extinguishment occurred through the enclosure and improvements carried out on Western Australian pastoral leases, especially through fencing as well as by the granting of mining leases and the carrying into effect of works in the Ord Irrigation Project area and the Argyle Diamond Mine area. In this matter, the Full Court of the Federal Court, by majority, rejected the determination of Lee J.

The issues said to arise in the appeal are:

Whether the Full Court erred in the application of the requirement of a clear and plain intention to extinguish native title;

Whether the Full Court erred in finding that the trial judge failed to give due weight to the 'inconsistency of incidents' test in the consideration of the imposition of statutory controls or grant of use of land because he applied the test having regard to the requirement of a clear and plain intention to extinguish native tile;

Whether the Full Court erred in finding that 'inconsistency of incidents' need not be permanent in order to bring about extinguishment;

Whether the Full Court erred in finding that the imposition of statutory controls or the grant of rights to a third party or the use of land that affects or affected the enjoyment of native title has the effect of extinguishing the exclusivity of the elements of native title and thereby partially extinguishes native title;

Whether the Full Court erred in finding that the native title of the appellants is a 'bundle of rights' which can be extinguished partially, right by right, and with cumulative effect in the event of a succession of grants or appropriations;

Whether the Full Court erred in finding that express reservations for Aboriginal access in pastoral leases and nature reserves, and the absence of such reservations in leases manifests a clear and plain intention to extinguish native title;

Whether the Full Court erred in finding that the 'enclosure and improvements' in pastoral leases under various statutes and regulations as a matter of law and independent of any operational inconsistency, totally extinguishes native title in the subject areas;

Whether Full Court erred in finding that an 'enclosure' for the purposes of the relevant legislation is any 'fenced' area;

Whether the Full Court erred in finding that express reservations allowing Aboriginal access to pastoral leases for the purpose of seeking sustenance under various statutes and regulations defined the scope of Aboriginal rights reserved, and Aboriginal rights not included are extinguished to the extent of inconsistency with rights granted under pastoral leases;

Whether the Full Court erred in finding that land in the Ord Project Area held for future expansion, as a buffer zone, for drainage and for protection against erosion and flooding is land used in a manner which totally extinguishes native title;

Whether the Full Court erred in finding that all land resumed for the Ord Project (with limited exceptions) comes within the definition of 'works' in the Rights in Water and Irrigation Act 1914 (WA) and so wholly extinguishes native title;

Whether the Full Court erred in finding certain resumptions of land pursuant to the Rights in Water and Irrigation Act and Public Works Act vests an estate in fee simple in the Crown which wholly extinguishes native title and in doing so, whether the majority erred in failing to consider the application of the Racial Discrimination Act 1975 (Cth) under the operation of the Native Title Act 1993 (Cth);

Whether the Full Court erred in failing to apply the provisions of s47B of the Native Title Act to areas of vacant Crown land occupied by the Miriuwung and Gajerrong peoples;

Whether the Full Court erred in finding that any native title that may have existed in relation to minerals or petroleum was extinguished by various statutory and regulatory provisions;

Whether the Full Court erred in finding that the determination of the trial judge that native title included rights to 'resources' must be confined to 'resources of a customary or traditional kind' and excludes minerals or petroleum;

Whether in relation to the claim area covered by the Argyle Diamond Mine Project, the Full Court erred in finding that native title is wholly extinguished by the size of infrastructure, nature and intensity of the activities contemplated in its execution and must totally yield to the lessee's rights (and obligations) under the Agreement, the Argyle Diamond Joint Venture Agreement Act 1981 (WA), the Mining Act 1978 (WA) and the mining lease itself and that all native title rights are wholly extinguished by the grant of the special agreement mining lease under the joint venture Act;

Whether the Full Court erred in finding that the character and other aspects of the mining leases and general purpose leases granted under the Mining Act extinguishes all native title rights;

Whether the Full Court erred in finding that the statutory scheme of the Mining Act and regulations thereunder establishes a regime which extinguishes all native title rights on lands leased;

Whether the Full Court erred in finding that the Argyle Diamond Joint Venture Agreement Act does not offend s9(1) of the Racial Discrimination Act;

Whether the Full Court erred in finding that the determination of native title should recognise the public right to fish in tidal waters as an 'other interest' within ss225(c) and 253 of the Native Title Act and whether such a finding has the effect of extinguishing the exclusivity of native title rights to fish in the inter-tidal waters; and

Whether the Full Court erred in finding that 'a right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the determination area' cannot be the subject of a determination of native title.

Notices of contention have been filed by the first, fifth and seventh respondents. The first respondent has also cross-appealed.

P59/2000 (Appeal by Western Australia)

The appeal in matter P59/2000 relates to an area of some 7,900 square kilometers of land in the East Kimberley and an area of the Northern Territory, the Keep River National Park. The claim also includes 3 islands off the West Australian coast.

Two other groups made claims over some of the land, the subject of the application, including an application by a group of the Miriuwung people for rights and interests in the Keep River National Park. The Balangarra peoples also brought an overlapping application for determination for the Lacrosse Island. There have been a large number of grants of tenure and other dealings in the determination area. Most of the land in the Western Australian portion of the determination area has been subject to grants of pastoral leases, some the subject of other Crown leases, and in others, a number of reserves created. An irrigation scheme over much of the determination area was implemented in 1916.

As in P67/2000, Lee J found that native title existed over some of the claim area and the appeal against his decision was upheld in part, and the determination of native title set aside.

The issues said to arise in the appeal are:

Whether the law of extinguishment is correctly stated by the Full Court;

Whether it is correct to describe native title as a 'bundle of rights' and whether component rights may be extinguished individually;

Whether, in circumstances where the Crown has set aside certain land for a purpose inconsistent with native title, the commencement of use for that purpose on part of the land extinguishes native title in relation to all of that land;

Whether pastoral leases in Western Australia extinguish native title and, if so, to what extent;

The meaning of the word 'enclosed' in s106(2) Land Act 1933 (WA) and in the Aboriginal access provision in pastoral leases under earlier land legislation;

Whether those parts of the Ord Project land which are held for 'future expansion, as buffer zones for drainage and for protection against erosion and flooding' are lands which are used in a manner which extinguishes native title;

Whether the resumption of land under the Public Works Act 1902 (WA) extinguishes native title;

Whether the resumption of Packsaddle land in December 1975 was invalid because of s10 of the Racial Discrimination Act;

The extinguishing effects of: reserves, leases, the Rights in Water and Irrigation Act, and the cumulative effect on native title of the grant of pastoral leases and the subsequent termination of the right to obtain sustenance under the Rights in Water and Irrigation By-Laws 1933 (WA);

Whether Western Australian legislation vesting and conferring ownership of minerals in the Crown extinguishes native title in those minerals;

Whether mining leases and general purpose leases under the Mining Act extinguish native title;

Whether any possible native title rights in respect of resources must be confined to resources which, on the evidence, have been customarily or traditionally used or whether those rights extend to minerals or petroleum;

Whether the Argyle Diamond Project extinguished native title and whether the passing of the Argyle Diamond Mine Joint Venture Agreement Act infringes ss9 or 10 of the Racial Discrimination Act;

Whether the creation of nature reserves or wildlife sanctuaries after 1975 offends the Racial Discrimination Act;

Whether the public right to fish in inter-tidal waters is an 'other interest' within the meaning of s225(c) of the Native Title Act;

Whether cultural knowledge may be made the subject of a determination of native title;

Whether there should have been a determination of native title where there was no evidence of use or presence upon the parts of the land by Aborigines;

Whether spiritual connection with land is sufficient to ground a determination of native title; and

Whether the Full Court should have found that s47B(2) of the Native Title Act applied to certain areas.

A notice of contention has been filed by the second respondents.

P62/2000 (Appeal by the Northern Territory)

The appeal in matter P62/2000 relates to the area of land and waters claimed in the Northern Territory comprised the Keep River National Park, being land leased to and vested by statute in the Conservation Land Corporation and three relatively small freehold lots granted as Aboriginal community living areas to Aboriginal Corporations pursuant to s46(1A) of the Lands Acquisition Act 1978 (NT).

Justice Lee of the Federal Court determined that native title existed in relation to the majority of the claimed area including the whole of the Northern Territory area. There were five appeals and a cross appeal to the Full Court of the Federal Court. On appeal, the Full Court by majority, allowed the appeals in part, dismissed the cross appeal and set aside the determination of Lee J.

The issues said to arise in this appeal are:

Whether any native title right to make decisions about the use and enjoyment of the Keep River National Park subsists; and

Whether any native title subsists in areas of land within the Keep River National Park upon which the Parks and Wildlife Commission has constructed certain improvements.

P63/2000 (Appeal by Northern Territory Native Title Claimants)

The appeal in matter P63/2000 relates to an application for determination of native title in relation to an area in the East Kimberley of Western Australia and an area of the Northern Territory known as the Keep River National Park and three adjoining Aboriginal community living areas.

On 21 February 1997, the appellants were joined as persons claiming to hold native title in the Keep River National Park and the adjoining community living areas. Between 1893 and 1980, the land in the Northern Territory the subject of the claim was held pursuant to a series of pastoral leases, the first of which was granted in 1893. Between 1979 and 1985, 586 square kilometers of land were removed from the pastoral lease and transferred to the Conservation Land Corporation to form the Keep River National Park. At the date of the native title application the land was, and remains, subject to one of two leases granted by the Northern Territory to the Conservation Land Corporation.

The trial Judge held that neither the pastoral lease nor the leases to the Conservation Land Corporation had effected any extinguishment of native title.

The majority of the Full Court found that the pastoral leases had brought about partial extinguishment by abrogating native title rights to exclusively possess, occupy, use and enjoy the land.

The issues said to arise in the appeal are:

Whether the exclusivity of particular incidents of native title are permanently extinguished by (a) the grant of pastoral leases containing a reservation in favour of the Aboriginal inhabitants; and (b) the vesting or grant of leases for the purposes of a national park pursuant to a statutory regime which protected traditional Aboriginal use of the land, where native title itself was not wholly extinguished;

Whether the grant of a pastoral lease with a reservation demonstrates a clear and plain intention to extinguish all incidents of native title not referred to in the reservation and if so, what those incidents are;

Whether the Full Court erred in failing to apply the statutory regime under the Native Title Act in relation to the possible extinguishing effects of pastoral leases and the statutory vesting and leases granted to the Conservation Land Corporation (NT), to the extent that those acts impair native title existing at the date of the grants;

Whether the common law, in recognising native title, provides protection of that religious, spiritual or cultural knowledge of the native title holders which constitutes the essential connection between the native title holders and their land; and

Whether it is correct, in a determination made under s225 of the Native Title Act to provide that unspecified common law public rights will prevail over native title rights and interests.

Full Court Matters

(Other than Applications for Special Leave to Appeal)

COMMENCING 27 MARCH 2001

YOUGARLA & ORS v. THE STATE OF WESTERN AUSTRALIA & ANOR (P60/2000)

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

Date of Judgment: 11 November 1999

Date special leave granted: 4 August 2000

Section 70 of the Constitution Act 1889 (WA) provides, inter alia, "there shall be payable to Her Majesty, in every year, out of the Consolidated Revenue Fund, the sum of ,5,000 ... to be appropriated to the welfare of Aboriginal natives". Over a period of nearly 100 years, several Acts of Parliament have been passed to repeal s70 or to validate its repeal. The first such Act was the Aborigines Act 1897 (WA) and since then, other Acts, including the Aborigines Act 1905 (WA) have been passed. The appellants have contended that, despite this legislation, s70 has never been validly repealed. They claim that both of the Aborigines Acts referred to above failed to comply with essential matters of manner and form by not complying with s33 of The Australian Colonies Act No 1 1842 and s32 of The Australian Colonies Constitution Act No 2 1850. The appellants brought proceedings claiming declaratory orders.

The litigation has a long history. On 23 January 1995, the Supreme Court of Western Australia dismissed the appellants' action on the ground that they had not given notice or commenced their action within the time specified by the Crown Suits Act 1947 (WA). An appeal against this decision was dismissed. However, on 9 October 1996, the High Court allowed the appeal and ordered that the appeal to the Full Court be allowed and the original order striking out the statement of claim and dismissing the action should be set aside.

The matter was remitted to a single Judge of the Supreme Court of Western Australia and, on 11 December 1997, Murray J heard two preliminary issues: the first related to the construction of the various statutes and the defence relied upon by the respondents, (namely a challenge to the standing of the appellants to represent a class of persons described as "the Aboriginal inhabitants of Western Australia"); and the second, the defences based on the Crown Suits Act and s47A of the Limitation Act 1935 (WA). Murray J dismissed the appellants' claim finding the repeal of s70 of the Constitution Act to be valid and, further, that the appellants did not have standing to sue, their action being statute barred. The Full Court of the Supreme Court of Western Australia dismissed the appellant's appeal and it is from this decision that this appeal has been brought.

The High Court has listed the matter for hearing, at this stage, only in relation to the issues surrounding the validity of the asserted repeal of s70 of the Constitution Act 1889 (WA) the ground of appeal being:.

Whether the Full Court erred in not holding that the purported repeal of s70 of the WA Constitution by the Aborigines Act 1987 (WA) and the Aborigines Act 1905 (WA) were ineffective because they failed to comply with s33 of The Australian Colonies Act No 1 1842 and s32 of The Australian Colonies Constitution Act No 2 1850.

The balance of the grounds of appeal (to be argued should the appellants be successful on the above ground) are:

Whether the Full Court erred in finding that s6(1) of the Crown Suits Act 1947 (WA) operated to defeat the appellants' claim to declaratory relief;

Whether the Full Court erred in finding that s47A of the Limitation Act 1935 (WA) operated to defeat the appellants' claim for declaratory relief;

Whether the Full Court erred in finding that the appellants did not have standing to bring the proceedings to resolve whether s70 of the Constitution Act 1889 (WA) had been properly repealed so that the requirements of s70 are no longer in force;

Whether the Full Court should have found that the appellants were representative of the class of Aboriginal people in the Western Australia who would have or could have benefited from compliance with s70.

The respondent has filed a notice of contention.

The Attorney-General of the Commonwealth has intervened pursuant to Constitutional notices issued by the respondent.

DERRICK v. CHEUNG (S151/2000)

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

Date of judgment: 11 October 1999

Date of grant of special leave: 16 June 2000

At about 9.00 am on Saturday, 17 December 1994, the respondent, then aged about 21 months, ran out of a yard onto the footpath and then between parked cars onto the roadway of Victoria Avenue, Chatswood. The road was busy at the time. The appellant had no opportunity to see the respondent until she appeared on the roadway in front of the appellant's car. The designated speed limit was 60 kms per hour, which was consistent with other traffic movement in the locality. The appellant braked and swerved, but the respondent was struck by the near-side headlight of the appellant's vehicle. She was seriously injured.

The trial judge found that the appellant's reaction time was reasonable, that she took appropriate action to avoid the accident and that the accident was unavoidable having regard to the speed of the car. However, his Honour held that the appellant was negligent in driving at a speed of 45-50 kms per hour saying that if the appellant's speed "had been slower by a few kilometres per hour, she would have been able to veer away past the respondent, or indeed stop in time to avoid the collision ... I do not think it would have been necessary for her to travel at 'crawling speed'."

The appellant appealed. The Court of Appeal, by majority, was not persuaded that there was a case for appellate intervention and dismissed the appeal. Davies AJA, in the minority, would have allowed the appeal holding that, as in Stocks v. Baldwin (1996) 24 MVR 416, the fundamental test was what a reasonable man would do by way of response to the risk attendant upon his driving. His Honour said: "The appellant was driving at a reasonable speed and in a responsible manner. The respondent, a toddler, should not have been on the roadway. She was not observable and it was not reasonably foreseeable that, unattended, she would attempt to cross the road."

The grounds of appeal include:

Their Honours erred:

in failing to intervene in circumstances where the trial judge's decision was not supported by the evidence;

in failing to overturn the trial judge's decision that the appellant had been negligent; and

in upholding the trial judge's entitlement to make a value judgment rather than an analysis of what an appellant should reasonably have done having regard to all the surrounding circumstances.

DP v. COMMONWEALTH CENTRAL AUTHORITY (D12/2000)

Court Appealed from: Full Court of the Family Court Australia

Date of Judgment: 19 May 2000

Date special leave granted: 24 November 2000

This is an appeal against a decision of the Full Court of the Family Court of Australia upholding orders made by Mushin J on 23 December 1999 for the return of a five year child to Greece pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

The appellant mother is a naturalised Australian citizen and the child is an Australian citizen by descent. Both parents were born in Greece where they met and eventually married in 1993. The mother claims that following the birth of the child she and the father separated every couple of months with the child remaining in her care on each occasion. In particular, she claims they separated under the one roof in October 1996 and in July of 1998 she and the child moved out of the former matrimonial home and went to live at her parents' home.

In October 1998 the mother obtained an order from a Greek court at Serres granting her temporary title for the exertion of parental authorisation over the child together with an order for maintenance. Unbeknownst to the mother, the father obtained on 27 November 1998 an order from the court at Serres prohibiting the mother from leaving the country with the child.

In November 1998 the mother obtained a passport for the child and moved from Greece to Darwin on 1 December 1998.

Since birth, the child has displayed delayed development and other symptoms. The mother sought orthopaedic, paediatric, physiotherapy, and optometry and speech therapy treatment for the child in Greece, but it was not until the child came to Australia that he was diagnosed as autistic.

Upon application by the Commonwealth Central Authority to the Family Court of Australia pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth), it was found that the removal of the child from Greece on 1 December 1998 was wrongful and that there were no relevant exceptions under the regulations prohibiting the return of the child to Greece.

The mother appealed to the Full Court of the Family Court arguing that if the child was returned to Greece there would be a grave risk that he would be exposed to physical or psychological harm because of the failure of Greek doctors to diagnose or even recognise autism, compounded by the father's lack of recognition of the condition.

In dismissing the appeal, the Full Court held that it is only in rare circumstances that one of the exceptions in regulation 16(3) of the Family Law (Child Abduction Convention) Regulations 1986 will be made out. This regulation confers upon a Court the power to refuse to make an order for the return of a child in certain circumstances, which include where there is a grave risk that the return of the child to the country would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or where the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of Human Rights and fundamental freedom.

The grounds of appeal are:

Whether the Full Court of the Family Court of Australia erred in law in finding that in the interpretation of regulation 16(3) of the Family Law (Child Abduction Convention) Regulations 1986, regulation 16(3)(b) and (d) are to be narrowly construed; and

Whether the Full Court of the Family Court of Australia erred in law in finding that the evidence available to the learned trial judge established that the return of the child to Greece would not constitute a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation.

JLM v. DIRECTOR-GENERAL NSW DEPARTMENT OF COMMUNITY SERVICES (S291/2000)

Court appealed from: Full Court of the Family Court

Date of judgment: 30 November 2000

Date referred to Full Bench: 16 February 2001

These proceedings relate to an application brought by the respondent for the return of a child to Mexico, pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction and the Family Law (Child Abduction Convention) Regulations 1986.

The child was born in Mexico in February 1997. On 14 December 1998 the child was brought to Australia by the applicant and the child's father. On 4 January 1999 the father returned to Mexico, however the mother and child remained in Australia. On about 16 March 1999 the father sought the assistance of the Mexican Central Authority to effect the return of his child to Mexico.

On 3 December 1999 the Judicial Registrar in the Family Court made orders for the return of the child to Mexico. The applicant sought a review of those orders. Rose J upheld the application and discharged the orders of 3 December.

Before the primary Judge and the Full Court the applicant relied on the provisions of 16(3)(b) of the Regulations which provide that: "A court may refuse to make an order under subregulation (1) if a person opposing return establishes that: ... (b) there is a grave risk that the return of the child to the country in which he or she habitually resided immediately before the removal or retention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation". Rose J had held that the mother's threat to commit suicide if the child were returned to Mexico constituted a grave risk of psychological harm to the child within the meaning of this Regulation.

The Full Court found that it was not open to the trial judge to find that the very serious risk of suicide by the mother in the event of an order being made requiring the child to be returned to Mexico was such as to create a grave risk of psychological harm to the child which would place the child in an intolerable situation. Accordingly, the trial judge had erred in finding that the terms of Regulation 16(3)(b) had been made out. The appeal was allowed.

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

Whether the Full Court of the Family Court erred in its view of the ambit of reg.16(3)(b) of the Family Law (Child Abduction) Regulations; and

Whether the Full Court erred in holding that the primary Judge should not have found that the return of the applicant's child to Mexico gave rise to a grave risk that the child would be exposed to physical or psychological harm or otherwise placed the child in an intolerable situation.

ADAM v. THE QUEEN (S139/2000)

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

Date of judgment: 23 July 1999

Date of grant of special leave: 30 May 2000

On 6 October 1998 the appellant was indicted for the murder of Constable David Carty on 18 April 1997 at Fairfield in NSW. Thaier Sako was a critical witness to the events which preceded and surrounded the death of Constable Carty. He was charged with murder and had initially declined to answer police questions. However, 8 weeks after the murder, he offered to participate in a police interview and he implicated the appellant.

During the trial, the Crown called Thaier Sako as a witness. The Crown did not know what evidence Thaier Sako would give and the defence objected to his evidence, so a voir dire was conducted before the trial judge. By that stage the murder charge against Thaier Sako had been dropped and he had been granted an indemnity by the Attorney-General. During the course of the voir dire it became clear that the witness, if called, would not adhere to statements he had made in a police interview. Indeed, if called he would give evidence which would harm the Crown case.

At the conclusion of the voir dire, leave was sought to cross-examine the witness under s38 of the Evidence Act 1995 (NSW) ("the Act") on a prior inconsistent statement. Over defence objection this was granted. During this examination the witness acknowledged statements made to the police, however he asserted that he was at that time simply reciting what he had been told by others.

On 24 December 1998 a jury found the appellant guilty of murder. He was sentenced to a total term of 28 years penal servitude.

On appeal, the appellant submitted that the trial judge erred in admitting the evidence of Thaier Sako. The acknowledged purpose of the Crown in calling Thaier Sako was so that evidence of the prior representations could go in as proof of the facts asserted. This course could not have been contemplated before the Evidence Act 1995. The interpretation of s60 of the Act was critical. The Court analysed the changes wrought by s60 which provides:

"The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation."

The appellant argued that consistent with the common law position identified in Blewitt v. The Queen (1988) 62 ALJR 503, the Crown should not be permitted to call a witness known to be hostile for the sole purpose of placing before the jury the contents of what would otherwise be an inadmissible out of court representation. However, the Court decided that s60 cut across the basis for the holding in Blewitt. The Court held that Thaier Sako's prior statement to the police was properly admitted as evidence of what he had done and what he had observed.

The appeal was dismissed.

The ground of appeal is:

The Court of Criminal Appeal erred in holding that the trial judge did not err in admitting the evidence of the witness Thaier Sako.

* * * * * * * * *

Full Court Matters

(Other than Applications for Special Leave to Appeal)

HOBART CIRCUIT SITTINGS

COMMENCING 2 APRIL 2001

AUSTRALIAN BROADCASTING CORPORATION v. LENAH GAME MEATS PTY LTD (H2/2000)

Court Appealed from: Full Court, Supreme Court of Tasmania

Date of Judgment: 2 November 1999

Date special leave granted: 12 May 2000

The respondent carries on business as a processor of animals (brush tailed possums) and is licensed as an export abattoir. An unknown person trespassed on its premises and installed cameras which recorded the animal processing operation. This videotape was then given to Animal Liberation Limited, an animal welfare group, which passed it on to the appellant ("the ABC"). The ABC proposed to publish some of the footage as part of a program concerning the respondent's activities. The respondent commenced proceedings against Animal Liberation Limited and the ABC claiming, inter alia, an interim injunction against the ABC and damages.

The application for an interim injunction was argued on two bases; that there was no cause of action necessary as a basis of the relief sought or alternatively there was a cause of action for defamation. Underwood J dismissed the application on both grounds. He was of the view that if there was no cause of action no interlocutory action could lie, and if there was a cause of action in defamation, the principles upon which interlocutory relief is only sparingly granted in defamation weighed against the granting of any injunction and that there was no evidence that damages would not provide an adequate remedy. The ABC subsequently televised a part of the tape in May 1999.

The respondent appealed. The Full Court, by majority, allowed the appeal. Before the Full Court, the respondent conceded that it had no maintainable action for defamation or breach of confidence, but argued that it would be unconscionable for the ABC to broadcast pictures obtained by a trespass notwithstanding that the ABC had no part or involvement in the unlawful conduct. Wright J considered that profiting from the fruits of the trespass by a third party was sufficient grounds for injunctive relief. In the alternative, if a cause of action were required Wright J considered that arguably the ABC could be held liable in negligence. Evans J concurred, on the basis that where there was unconscionable conduct the Court's exclusive equitable jurisdiction could be invoked. He considered that, as unconscionability was central to the Court's jurisdiction to protect confidential information, so it was in relation to the product of a trespass. Slicer J dissented, concluding that without a breach of the law by the ABC, the Court had no power to grant interlocutory relief on the basis of potential injury which the respondent might suffer upon publication.

The grounds of appeal include:

The Full Court wrongly proceeded on the basis that the Court had jurisdiction to grant an injunction to restrain media publication based on unconscionability in the absence of claims in trespass or defamation or breach of confidence against the appellant; and

The Full Court failed to have regard to whether, when applying the equitable principle of unconscionability to the media, concepts of public interest in freedom of the press need to be applied in deciding whether or not to grant the injunction.

The appellant has served a Notice of a Constitutional Matter and the Commonwealth and the State of South Australia will be intervening.

The respondent has filed a Notice of Motion seeking leave to file a Notice of Contention out of time.

THE ROY MORGAN RESEARCH CENTRE PTY LTD v. COMMISSIONER OF STATE REVENUE (M108/2000)

Court appealed from: Court of Appeal, Victoria

Date of judgment: 4 February 2000

Date special leave granted: 8 September 2000

The respondent issued 3 notices of assessment under the Payroll Tax Act 1971 (Vic) to the appellant. An objection to the first assessment was disallowed by the Administrative Appeals Tribunal and appeals from that decision were dismissed. Objections to the second and third assessments were disallowed by the Victorian Civil and Administrative Tribunal ("VCAT") in respect of primary tax assessed and allowed only in relation to additional tax. VCAT was not constituted by the President or a Vice president, with or without others.

The appellant sought leave to appeal to the Supreme Court from the VCAT decision. The application was heard by Balmford J, who refused to grant leave, without giving reasons for the refusal. The appellant filed a notice of appeal. The respondent applied to have the appeal dismissed as an abuse of process of the Court. In Rabel v. Eastern Energy Ltd [1999] VSCA 103, the Court of Appeal had previously decided that it had no jurisdiction to entertain an appeal from an order made by the Trial Division of the Supreme Court refusing or granting leave to appeal from an order by a non-presidential VCAT. This was considered to be as a consequence of s148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Section 148 expressly provides, within the meaning of s17(2) of the Supreme Court Act 1986 (Vic), that there is no appeal to the Court of Appeal from such a determination. The appellant accepted that if Rabel were followed the appeal was doomed. But the appellant sought that the Court of Appeal reconsider Rabel and not follow it. The Court of Appeal (Buchanan and Chernov JJA) was of the view that there was no real prospect of such a review being undertaken successfully and dismissed the appellant's appeal.

The grounds of appeal include:

The Court of Appeal erred in law in dismissing the appellant's appeal from the decision of Balmford J refusing it leave to appeal against the orders of the Victorian Civil and Administrative Tribunal whereby the Tribunal had confirmed assessments levied against the appellant;

The Court of Appeal erred in law in holding that it had no jurisdiction to entertain the said appeal;

The Court of Appeal erred in law in holding that its earlier decision in Rabel v. Eastern Energy Ltd [1999] VSCA 103 was correctly decided and should be applied; and

The Court of Appeal erred in law in holding that s148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) constituted an exclusion of the kind contemplated by s17(2) of the Supreme Court Act 1986 (Vic).

G & M ALDRIDGE PTY LTD v. WALSH (M104/2000)

ELECRAFT (AUST) PTY LTD v. WALSH (M105/2000)

K & V PLUMBERS PTY LTD v. WALSH (M106/2000)

BARDEN-STEELDECK INDUSTRIES PTY LTD v. WALSH (M107/2000)

Court appealed from: Court of Appeal, Victoria

Date of judgment: 12 November 1999

Date special leave granted: 8 September 2000

In December 1988 Thompson Land Limited ("TLL") entered into an agreement with trade contractors (including each of the appellants) to perform work on the Capital Centre project in Dandenong. In December 1989 work was completed to practical completion. Final claims were submitted but not paid. On 9 March 1990 the ANZ Bank ("the Bank") made demand on TLL under a Mortgage Debenture TLL had executed in favour of the Bank in 1988. The charge thereby crystallised automatically and became a fixed charge.

As a result of demands by solicitors representing all the present appellants and others, on 15 March 1990, TLL agreed to pay part of the amount owing to each of 12 contractors, including each of the appellants. Payment by way of a deposit, (secured by units in the M & T Property Fund) was made on that date and the balance was to be paid on 20 April 1990. The balance was not paid. Each appellant sold the units held as security on 20 April 1990 and received payment in respect thereof. The deposits paid to each appellant were of differing amounts, as were the number of units allocated and subsequently sold. There was still a substantial balance owing to each appellant. On 27 April 1990 a receiver and manager was appointed by the Bank pursuant to the charge, an application for winding up of TLL was commenced and TLL was wound up on 6 September with the respondent being appointed liquidator.

In proceedings brought by the liquidator in the County Court, it was held that the payments made on 15 March 1990 (and the security provided) constituted a preference pursuant to the relevant legislation. Each appellant appealed. They contended that they received no "preference priority or advantage over other creditors" within the meaning of s122 of the Bankruptcy Act 1966 (Cth). They submitted that, because by 15 March 1990 the property which was applied in making the payments (and the giving of the security) was already the subject of a fixed charge in favour of the Bank, the only one who could have been disadvantaged by the making of the payments was the Bank (a secured creditor) and not other unsecured creditors. The Court of Appeal heard the appeals together and dismissed them.

The grounds of appeal include:

The Court of Appeal ought to have held that:

(a) the existence of the charge over the assets and undertaking of TLL was sufficient to preclude any preference, priority or advantage over other creditors; and

(b) if the Appellant did obtain any preference, priority or advantage it was only to the disadvantage of the Bank.

The Court of Appeal erred in concluding that the failure or inaction on the part of the Bank to take any steps to enforce the charge which became fixed on 9 March 1990 had the effect of making the payment made and security provided on 15 March 1990 a preference

VICTORIAN WORKCOVER AUTHORITY & ANOR v. ESSO AUSTRALIA LIMITED (M101/00)

Court appealed from: Court of Appeal, Victoria

Date of judgment: 19 April 2000

Date special leave granted: 8 September 2000

In 1989 the respondent (Esso) was the occupier of an Oil Platform in Bass Strait. AFCO Industrial Services Group Pty Ltd (now in liquidation) contracted with Esso to provide, among other services, AFCO employees to work on the Platform. One of AFCO's employees (Wsol) was injured while on the platform in January 1989. The back injury which he suffered deteriorated over time and he has not worked since September 1989. Each of the appellants has at various times and pursuant to the Accident Compensation Act 1985 (Vic) ("the Act") had the obligation of making compensation payments to Wsol.

The appellants began these proceedings against Esso seeking an indemnity in respect of the payments made by them to the worker and also a declaration in relation to future payments. The appellants' right to the indemnity is statutory and arises pursuant to s138 of the Act. The trial judge made a finding of negligence against Esso and apportioned responsibility for Wsol's injuries as to 80% against Esso and as to 20% against AFCO. In respect of the compensation paid by the appellants up to the time of judgment, the trial judge ordered Esso to pay the first appellant (VWA) $116,226.22, plus interest fixed at $7,206.66 and ordered that Esso pay to the second appellant (FAI Insurance) $219,000, plus interest fixed at $80,600.22.

In the Court of Appeal, Esso challenged the trial judge's award of interest. The Court upheld this challenge, holding that a person seeking to enforce an entitlement to an indemnity conferred by s138 of the Act is not bringing proceedings to recover "debt or damages" within the meaning of s60 of the Supreme Court Act 1986 (Vic).

The grounds of appeal include:

The Court of Appeal erred:

(a) in its construction of s60 of the Supreme Court Act 1986 (Vic); and

(b) in holding that proceedings for recovery of amounts pursuant to s138 of the Accident Compensation Act 1985 (Vic) were not proceedings for the recovery of debt or damages within the meaning of s60 of the Supreme Court Act 1986 (Vic).

Published in Case Summaries

Thursday, 01 July 2010 15:46

Full Court Matters - April 2001

(Other than Applications for Special Leave to Appeal)

HOBART CIRCUIT SITTINGS

COMMENCING 2 APRIL 2001

AUSTRALIAN BROADCASTING CORPORATION v. LENAH GAME MEATS PTY LTD (H2/2000)

Court Appealed from: Full Court, Supreme Court of Tasmania

Date of Judgment: 2 November 1999

Date special leave granted: 12 May 2000

The grounds of appeal include:

The Full Court wrongly proceeded on the basis that the Court had jurisdiction to grant an injunction to restrain media publication based on unconscionability in the absence of claims in trespass or defamation or breach of confidence against the appellant; and

The Full Court failed to have regard to whether, when applying the equitable principle of unconscionability to the media, concepts of public interest in freedom of the press need to be applied in deciding whether or not to grant the injunction.

The appellant has served a Notice of a Constitutional Matter and the Commonwealth and the State of South Australia will be intervening.

The respondent has filed a Notice of Motion seeking leave to file a Notice of Contention out of time.

THE ROY MORGAN RESEARCH CENTRE PTY LTD v. COMMISSIONER OF STATE REVENUE (M108/2000)

Court appealed from: Court of Appeal, Victoria

Date of judgment: 4 February 2000

Date special leave granted: 8 September 2000

The grounds of appeal include:

The Court of Appeal erred in law in dismissing the appellant's appeal from the decision of Balmford J refusing it leave to appeal against the orders of the Victorian Civil and Administrative Tribunal whereby the Tribunal had confirmed assessments levied against the appellant;

The Court of Appeal erred in law in holding that it had no jurisdiction to entertain the said appeal;

The Court of Appeal erred in law in holding that its earlier decision in Rabel v. Eastern Energy Ltd [1999] VSCA 103 was correctly decided and should be applied; and

The Court of Appeal erred in law in holding that s148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) constituted an exclusion of the kind contemplated by s17(2) of the Supreme Court Act 1986 (Vic).

G & M ALDRIDGE PTY LTD v. WALSH (M104/2000)

ELECRAFT (AUST) PTY LTD v. WALSH (M105/2000)

K & V PLUMBERS PTY LTD v. WALSH (M106/2000)

BARDEN-STEELDECK INDUSTRIES PTY LTD v. WALSH (M107/2000)

Court appealed from: Court of Appeal, Victoria

Date of judgment: 12 November 1999

Date special leave granted: 8 September 2000

The grounds of appeal include:

The Court of Appeal ought to have held that:

(a) the existence of the charge over the assets and undertaking of TLL was sufficient to preclude any preference, priority or advantage over other creditors; and

(b) if the Appellant did obtain any preference, priority or advantage it was only to the disadvantage of the Bank.

The Court of Appeal erred in concluding that the failure or inaction on the part of the Bank to take any steps to enforce the charge which became fixed on 9 March 1990 had the effect of making the payment made and security provided on 15 March 1990 a preference

VICTORIAN WORKCOVER AUTHORITY & ANOR v. ESSO AUSTRALIA LIMITED (M101/00)

Court appealed from: Court of Appeal, Victoria

Date of judgment: 19 April 2000

Date special leave granted: 8 September 2000

The grounds of appeal include:

The Court of Appeal erred:

(a) in its construction of s60 of the Supreme Court Act 1986 (Vic); and

Published in Case Summaries

Thursday, 01 July 2010 15:37

Full Court Matters - May 2001

(Other than Applications for Special Leave to Appeal)

COMMENCING 1 MAY 2001

WONG v. THE QUEEN (S193/2000)

LEUNG v. THE QUEEN (S198/2000)

Court appealed from: NSW Court of Criminal Appeal

Date of judgment: 16 December 1999

Date of grant of special leave: 4 August 2000

On 8 November 1997 the appellants were arrested in Sydney and charged with being knowingly concerned in the importation of a quantity of heroin in contravention of s233B of the Customs Act 1901 (Cth) ("the Act"). On 7 September 1998, the appellants were convicted by a jury in the District Court and were each sentenced to a period of twelve years imprisonment with a non?parole period of seven years.

The appellants appealed against their conviction. By judgment of 15 September 1999 that appeal was dismissed by the Court of Criminal Appeal.

On 24 February 1999 the Acting Commonwealth Director of Public Prosecutions gave notice of intention to appeal against the sentence imposed on the appellants on the grounds that they were manifestly inadequate. Prior to the hearing of the appeals, the Director gave notice that he sought a "guidelines judgment" in relation to offences under s233B of the Act. In support of his submissions in relation to a guideline judgment, the Director submitted a bundle of material to the Court relating to the prevalence of offences under s233B, approaches to sentencing adopted in other jurisdictions, an analysis of sentences imposed in other Australian States and Territories and an analysis of sentences imposed for various contraventions of s233B in New South Wales courts. The appellants challenged the jurisdiction of the Court to issue a guideline judgment.

On 16 December 1999 the Court of Criminal Appeal, constituted by five justices, upheld the Crown appeals, holding that the sentences imposed by the trial judge were manifestly inadequate. The sentences of each appellant were quashed; in lieu thereof the Court imposed a period of fourteen years imprisonment with a non?parole period of nine years.

The Court promulgated a sentencing guideline. Simpson J expressed reservations concerning the suitability of the cases before the Court to provide the foundation for a guideline judgment in relation to couriers and persons low in the hierarchy of an importing organisation, on the basis that the two appellants could only be characterised as major participants.

The grounds of appeal include:

The promulgation and application of comprehensive quantitative guidelines for sentencing offenders under s233B(1)(d) of the Customs Act 1901 (Cth) –

(1) was not authorised by s5D or any other provision of the Criminal Appeal Act 1912 (NSW); and

(2) did not constitute an exercise of the judicial power of the Commonwealth within Chapter III of the Constitution and was therefore beyond the power of the Court in the exercise of federal jurisdiction;

and ss68 or 79 of the Judiciary Act 1903 did not operate to apply that provision or those provisions of the Criminal Appeal Act 1912 (NSW) in the proceedings.

The law of the State purporting to confer jurisdiction on the Court of Criminal Appeal to promulgate and apply the comprehensive quantitative guidelines in the circumstances of the case was inconsistent with s16A of the Crimes Act 1914 and/or s235 of the Customs Act 1901 within the meaning of s109 of the Constitution and to that extent invalid and would not be rendered applicable by ss68 or 79 of the Judiciary Act 1903.

ROXBOROUGH & ORS v. ROTHMANS OF PALL MALL AUSTRALIA LIMITED (S199/2000)

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

Date of judgment: 11 November 1999

Date of grant of special leave: 4 August 2000

This appeal arises out of a determination made on 5 August 1997 in Ha v. State of New South Wales (1997) 189 CLR 465 ("Ha's case") that the Business Franchise Licences (Tobacco) Act 1987 (NSW) ("the Act") was invalid as imposing a duty or duties of excise. In the result, it was no longer necessary for either wholesalers or retailers of tobacco products to be licensees under the Act or to pay licence fees which the Act purported to impose as part of the licensing scheme.

In 1997 each of the appellants was a tobacco retailer licensed under the Act. The respondent was a tobacco wholesaler licensed under the Act. The effect of the contractual relationship between the appellants and the respondent was that the licence fees which the respondent was liable to pay each month were borne by the appellants. During the period between 1 July 1997 and 5 August 1997 the respondent sold tobacco products to each appellant. In respect of each sale the respondent issued a standard form invoice which separately identified the sales sub total and the tobacco licence fee. The sum of these was identified as the net total and each appellant paid the net total of each invoice to the respondent.

The issue in the Federal Court proceedings was whether the appellants or the respondent should receive the benefit of the windfall that arose in consequence of the decision in Ha's case. The appellants relied on several distinct bases for recovery of the amounts paid to the respondent as tobacco licence fee. (They now pursue recovery of the amounts paid on four bases only.) The proceedings were dismissed at first instance. An appeal to the Full Federal Court was dismissed by majority. Gyles J, dissenting, concluded that there had been a total failure of consideration in respect of the amount paid for tobacco licence fee and that that was sufficient to dispose of the matter.

The grounds of appeal include:

The majority erred in failing to hold that it was an express or alternatively an implied term of the contract between each appellant and the respondent that, in consideration of the appellant paying to the respondent the amount identified in each invoice as "TOBACCO LICENCE FEE". The respondent would pay the said amount as licence fee under the Business Franchise Licences (Tobacco) Act 1987 (NSW) ("the Act"); and

The majority erred in failing to hold that each appellant was entitled to recover from the respondent as moneys had and received the amount identified in each invoice as "TOBACCO LICENCE FEE" paid to the respondent by the appellant on the basis of total failure of consideration.

CHEUNG v. THE QUEEN (S200/2000)

Court appealed from: NSW Court of Criminal Appeal

Date of judgment: 17 December 1999

Date of grant of special leave: 4 August 2000

Following conviction, the appellant was sentenced on 6 August 1993 to life imprisonment. In February 1999 he filed an application for leave to appeal against sentence. The application was some years out of time. The appellant had filed a Notice of Appeal within time, but the grounds did not include an application for leave to appeal against sentence. (It was the appellant's belief that the original Notice of Appeal did in fact contain an application for leave to appeal against sentence.)

The Crown had put its case to the jury on two bases:

(1) The evidence of an informant against the appellant as corroborated (the more serious factual scenario); or

(2) The corroborative and circumstantial evidence standing alone without the evidence of the informant (the less serious factual scenario).

The trial judge having carefully reviewed the evidence in the trial, found, as a fact, that the Crown had made out the first case. No request was made of the trial judge at any time that the jury should be asked whether it was the wider or the narrower factual basis which sustained their verdict.

In the application for leave to appeal against sentence, the primary ground of appeal relied on was that the trial judge should have asked the jury whether they found the appellant guilty on the Crown's primary case or the alternative. Newman J said that if such a power does exist in relation to crimes other than manslaughter the exercise of power is discretionary. He found that the trial judge correctly carried out his sentencing function. Simpson and Hidden JJ agreed, finding that it fell to the trial judge to find the facts for the purpose of sentence and it was open to his Honour to arrive at the conclusions he did.

Because of the seriousness of the matter and the appellant's false belief as to what was contained in the original Notice of Appeal, the Court granted leave to appeal, but dismissed the appeal.

The grounds of appeal are:

The Court erred in holding that the Judge at first instance had correctly applied the law in not asking the jury a question to attempt to understand which of two alternative Crown cases had been the basis of their verdict; and

The Court erred in rejecting a submission that the Judge at first instance had taken an approach to the factual basis for sentence which failed to ensure consistency with the verdict of the jury, and encroached upon his right to trial by jury.

* * * * * * * * *

Full Court Matters

(Other than Applications for Special Leave to Appeal)

COMMENCING 22 MAY 2001

CHEUNG v. THE QUEEN (S200/2000)

Court appealed from: NSW Court of Criminal Appeal

Date of judgment: 17 December 1999

Date of grant of special leave: 4 August 2000

The Crown had put its case to the jury on two bases:

(1) The evidence of an informant against the appellant as corroborated (the more serious factual scenario); or

(2) The corroborative and circumstantial evidence standing alone without the evidence of the informant (the less serious factual scenario).

Because of the seriousness of the matter and the appellant's false belief as to what was contained in the original Notice of Appeal, the Court granted leave to appeal, but dismissed the appeal.

The grounds of appeal are:

The Court erred in holding that the Judge at first instance had correctly applied the law in not asking the jury a question to attempt to understand which of two alternative Crown cases had been the basis of their verdict; and

The Court erred in rejecting a submission that the Judge at first instance had taken an approach to the factual basis for sentence which failed to ensure consistency with the verdict of the jury, and encroached upon his right to trial by jury.

RE THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS;

EX PARTE LU (M42/2000)

Order Nisi granted: 10 August 2000

The applicant ("Lu") is a citizen of Vietnam who arrived in Australia in 1982 with his family. He was granted a permanent entry permit. In 1990 Lu was involved in a number of criminal offences. In 1991 Lu and his co-offenders were sentenced in the NSW District Court. The sentencing judge imposed a term of six and a half years and recommended that Lu be deported. In 1992 the NSW Court of Appeal varied Lu's sentence by quashing the recommendation of deportation.

The Migration Act 1958 (Cth) ("the Act") was amended in December 1992 by the Migration Reform Act 1992 and then by the Migration (Offences and Undesirable Persons) Amendment Act 1992. The commencement date of both these Acts was ultimately fixed to be 1 September 1994. In June 1997 a delegate of the respondent ("the Minister") ordered that Lu be deported under s200 of the Act. Lu sought review of the deportation order from the Administrative Appeals Tribunal ("the AAT"). In October 1997 Lu was released from prison on parole. In June 1998 the AAT set aside the deportation order. The Minister appealed to the Federal Court, but this was later discontinued, after the Full Federal Court had delivered judgment, on 17 July 1998, in The Minister for Immigration and Multicultural Affairs v. Gunner ("Gunner's case"). The Full Court in Gunner's case did not question that the Minister, having ordered deportation of a permanent resident for criminal conduct under ss200, 201 of the Act, could thereafter cancel the permanent visa under (the former) s501 on the AAT setting aside the initial deportation order.

On 19 October 1998 the Minister made three decisions regarding Lu: (a) that Lu was not of good character; (b) to cancel Lu's visa; and (c) to include a certificate that Lu was an "excluded person". Lu has been detained as an unlawful non-citizen since November 1998.

Lu sought review in the Federal Court under Part 8 of the Act. Drummond J dismissed the application. Lu appealed unsuccessfully to the Full Court. Lu applied for special leave to appeal to the High Court. He also sought prerogative relief in respect of those decisions of the Minister. On 23 June 2000, Hayne J directed that the application for orders nisi be made by Notice of Motion to a Full Court, to be heard together with the application for special leave to appeal. On 10 August 2000 the Full Court dismissed the application for special leave, but granted the order nisi.

The issue to be determined is whether the decisions of the Minister are void so that a writ of prohibition, or an injunction, should issue to prevent the Minister acting on them or a writ of certiorari issue to quash the decisions. Lu contends that the documents before the Minister at the time he made his decision contained errors, omitted relevant facts and failed to draw the Minister's attention to issues raised on the documents. Lu also contends that the decision involved an unreasonable exercise of power in a way that represented an abuse of power.

Since the order nisi was granted by the High Court, the Full Court of the Federal Court has held (in Singh v. Minister for Immigration and Multicultural Affairs [2000] FCA 1426) that an excluded person certificate decision expressed in the form of the a certificate made by the Minister personally (in the same form as in the present case) does not constitute a valid certificate. The Minister contends that as a result of Singh's case, Lu is entitled to seek a merits review in the AAT of the Minister's decision to cancel his visa and that Lu should now be pursuing that right rather than continuing the High Court proceedings. The Minister has filed a Notice of Motion seeking that Lu's application be dismissed in the exercise of this Court's discretion.

ALLAN v. TRANSURBAN CITY LINK LIMITED (M90/2000)

Court appealed from: Full Federal Court

Date of judgment: 10 December 1999

Date special leave granted: 8 September 2000

In January 1996 the Development Allowance Authority (the "DAA") granted infrastructure borrowing certificates to the respondent ("Transurban") under Chapter 3 of the Development Allowance Authority Act 1992 (Cth) ("the DAA Act") in respect of the Melbourne City Link project. These certificates are in effect "tax incentives". City Link is a large tollway that involved the widening and connection of the Tullamarine and South-Eastern Freeways. Chapter 3 of the DAA Act includes s93O(2), which states that the DAA must not issue a certificate if there is a law in force which restricts the operation of other facilities in competition with the project. The appellant ("Allan") contends that the Melbourne City Link Act 1995 (Vic) is such a law, but this question has not yet been determined.

In January 1996 Allan and his family lived near the Tullamarine Freeway and anticipated that City Link would adversely affect their residential amenity. In March 1996 Allan requested the DAA to reconsider its decision. Following submissions from Allan and Transurban, DAA declined the request because it concluded that Allan was not "a person who is affected" by the decision as required under s119(1) of the Act. Allan applied to the Administrative Appeals Tribunal ('the AAT") for review. At a directions hearing the DAA raised preliminary objections on a number of grounds including lack of standing and that the DAA decision was non-reviewable. Transurban sought leave to make submissions at this point, but leave was refused by the AAT until jurisdictional issues were resolved. Transurban did not challenge this ruling and made no further attempt to take part in the proceedings. The AAT accepted it had jurisdiction to determine whether Allan had standing. The AAT in November held that the DAA's decision was reviewable but that Allan lacked standing.

Meanwhile, concerned at the imminent construction of City Link, Allan purchased a home further from the project in September 1996, sold his own home in November and moved in January 1997. Allan appealed unsuccessfully to the Federal Court. He then appealed to the Full Court, which allowed his appeal and remitted the matter to the AAT. Transurban then wrote to the AAT requesting to be joined as a party; Allan consented. At the directions hearing in May 1998, Transurban raised the fact that Allan had moved house and sought that his application be dismissed for want of standing because of this. At the hearing of the preliminary issues, Transurban and DAA then argued that Allan lacked standing because he could not gain anything personally by winning. The AAT dismissed the application for lack of standing.

Allan appealed to the Federal Court. Merkel J allowed the appeal, holding that Allan's change of address was irrelevant because standing was to be determined at the time Allan requested DAA to reconsider its decision.

Transurban appealed to the Full Court, which allowed the appeal. The Full Court found that the interest which Allan claimed was too remote.

The grounds of appeal include:

The Full Court erred by:

holding that the appellant would not have standing at common law unless he could show that he would gain something personally by a successful review of the decision he wishes to challenge;

holding that the appellant would not have standing under the Administrative Appeals Tribunal Act 1975 (Cth) and/or the Development Allowance Authority Act 1992 (Cth) unless he could show that he would gain something personally by a successful review of the decision he wishes to challenge; and

holding that the appellant's interest in the threat to his local environment and his residential amenity occasioned by the Melbourne City Link project was too remote from the decision he wishes to review.

SMITH v. THE QUEEN (S233/2000 and S234/2000)

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

Date of judgment: 21 October 1999

Date of grant of special leave: 8 September 2000

The issue raised by this appeal is whether evidence should be permitted to be given by people who were not witnesses to an offence, of their identification of people depicted in photographs taken at the time of the offence.

The appellant was tried before a judge and jury in the District Court on a charge of robbery in company. He was convicted and given a custodial sentence.

The Crown case was that at about 12.25 pm on 26 June 1997, four males entered the National Australia Bank at Caringbah and took the sum of $16,600, the property of the National Australia Bank. Still pictures were developed and enlarged from the bank's security camera film. Photographs depicted a male standing near the door dressed in a hooded jacket. Police officers viewed some of the photographs and identified the appellant as the person near the door. Police later showed bank employees and other witnesses of the robbery a video compilation of male faces, including the appellant, but none identified the appellant.

An application was made at the trial that the probative value of the identification evidence was weakened by its prejudicial effect. Further, the appellant relied upon s76 of the Evidence Act 1995 ("the Act"), submitting that the police officers concerned were really giving lay opinion evidence and that s78 of the Act did not render it admissible. The trial judge was not persuaded that the prejudicial effect of the identification evidence outweighed its probative value and proceeded on an assumption that even if the evidence of recognition could be classified as opinion evidence, it fell within the exception provided by s78.

The Court of Criminal Appeal held that the evidence given by police officers was not evidence of an opinion. The Court further held that it was well open to the trial judge to conclude that the probative value of the police evidence about the photographs outweighed the danger of unfair prejudice to the applicant.

The ground of appeal is:

The Court of Criminal Appeal of New South Wales erred in determining that evidence of identity could be presented to the jury by persons who claimed to know the appellant examining photographs of the offence.

FROST & ORS v. WARNER (S195/2000)

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

Date of judgment: 24 November 1999

Date of grant of special leave: 4 August 2000

On 8 January 1990 forty-nine people boarded the 36 foot motor boat, "N'Gluka", at the Soldier's Point Marina. Dennis Warner, the respondent's husband, was in control of the boat at all material times. The respondent was the holder of the certificate of registration of the vessel under Regulation 11 of the Water Traffic Regulations (NSW) as then in force. The weather was fine and the sea was calm. The vessel cruised on Port Stephens to a restaurant. The people on the boat disembarked, had lunch, and reboarded the vessel to return to the Marina. It was on that voyage that the vessel lost stability and sank. Five children in a forward cabin were unable to get out and drowned.

The appellants sued the respondent and Mr Warner for damages. At trial, the judge found that the vessel would have righted itself, but for the fact that it was grossly and dangerously overloaded with the result that it had a very poor reserve of stability. His Honour found that Mr Warner was negligent. His Honour further found that the respondent, as the holder of the certificate of registration in respect of a motor vessel which sank in consequence of the negligence of Mr Warner, was vicariously liable for his negligence and that she was liable for personal negligence. The findings against the respondent were based on her being the registered controller of the vessel.

The respondent appealed against the findings of the trial judge that she was liable for the negligent acts of her husband and that she was negligent as a result of her own acts or omissions. (The finding that Mr Warner was negligent was not appealed.) The Court of Appeal found that the respondent's being the holder of the certificate of registration did not give rise to a personal duty of care any more than it made her liable for the negligence of Mr Warner.

The grounds of appeal are:

The Court of Appeal erred in holding that the respondent was not responsible, by virtue of her position as holder of the Certificate of Registration of the vessel, "N'Gluka", under the Water Traffic Regulations (NSW) as being in force, for the negligence of Dennis Warner; and

The Court of Appeal erred in holding that the respondent did not hold a duty of care to the appellants which included a duty to prevent the vessel from sailing while it was dangerously overloaded.

VELEVSKI v. THE QUEEN (S197/2000)

Court appealed from: New South Wales Court of Criminal Appeal

Date of judgment: 10 May 1999

Date of grant of special leave: 4 August 2000

The bodies of the appellant's wife Snezana, his daughter aged six and his twin daughters aged three and a half months were found by the police in the afternoon of 20 June 1994 at the appellant's residence in a suburb of Wollongong. All had had their throats cut. A knife was found which was capable of inflicting the wounds and being the relevant weapon.

The appellant was charged with their murder. There was no doubt that whoever killed the appellant's wife also murdered his children. A prominent issue at the trial was whether the Crown had excluded any possibility that Snezana had killed the children and then committed suicide. (No-one contended, as obviously it could not be, that the three children were other than victims of murder.)

The Crown case at the trial fell into two parts: the circumstantial case; and, the medical case. It was common ground that the medical evidence was not sufficient to convict the appellant. (The trial judge so instructed the jury.) Each of the forensic pathologists who testified, even those who believed that Snezana had been murdered, acknowledged the possibility that she may have committed suicide. The Crown identified a number of circumstances said to be incriminating. When added to the medical evidence they were enough, so it was said, to exclude any reasonable hypothesis other than guilt.

After a trial extending almost two months, the appellant was convicted on four counts of murder.

The principal ground of appeal relied on was that the verdict was unsafe and unsatisfactory. The appeal was dismissed by majority. David Kirby J, dissenting, would have set aside the jury's verdict on the grounds that it was unreasonable. His Honour found that a miscarriage of justice was caused by the imbalance in the medical evidence adduced in the prosecution case. His Honour said "[t]he jury ought to have had a reasonable doubt as to the guilt of the accused".

The grounds of appeal are:

The majority of the Court of Criminal Appeal erred in holding that no miscarriage of justice was caused by the failure of the Crown to call as witnesses Professors Hilton and Botterill and Drs Lawrence and Duflou.

The majority of the Court of Criminal Appeal erred in failing to hold that a miscarriage of justice was caused by the admission of inadmissible evidence from the medical witnesses called by the prosecution;

The Court of Criminal Appeal erred in holding that the trial judge did not err in his directions to the jury on lies; and

The majority of the Court of Criminal Appeal erred in holding that the verdicts of the jury were not unreasonable.

FLANAGAN v. HANDCOCK (S258/2000)

Court appealed from: Full Court of the Family Court

Date of judgment: 17 November 1999

Date of grant of special leave: 13 October 2000

This appeal involves two issues: the jurisdiction of the Family Court under the provisions of the Child Support (Assessment) Act 1989 (Cth); and, whether the paramountcy of the best interests of the child principle applies in respect of injunctions sought under s68B(1) of the Family Law Act 1975 (Cth) after the 1995 amendments to that Act.

The appellant (Mr Flanagan) and the respondent (Mrs Handcock) are the parents of twin daughters born 18 April 1996. They lived in a de facto relationship from mid 1992 to mid 1996. The children have lived with Mrs Handcock since the parents separated, but have had contact with Mr Flanagan.

Shortly after separation, Mrs Handcock applied for and obtained an administrative assessment for child support to be payable by Mr Flanagan. There has been a significant amount of litigation about that original, and subsequently issued, child support assessments.

On 30 November 1998, Judicial Registrar Johnston heard child support proceedings between Mr Flanagan and Mrs Handcock. He delivered his decision on 29 January 1999.

Mr Flanagan filed an application on 8 February 1999 seeking to review the orders of Johnston JR and he also filed an application on 15 March 1999 seeking to injunct Mrs Handcock from using the surname "Handcock" for the children.

The applications came before Rose J on 12 May 1999. The outcome of the proceedings was that his Honour made some adjustments to the figures arrived at by Johnston JR, but otherwise dismissed the review application and the application for an injunction.

Mr Flanagan sought leave to appeal the orders made in relation to child support by Rose J and appealed against the order made by Rose J on the same date dismissing his application for an injunction. On 2 March 2000 the Full Court dismissed the application for leave to appeal and the appeal. In relation to the leave to appeal, the Full Court (by majority) found that there was no error of principle nor any substantial injustice to Mr Flanagan demonstrated. Finn J, dissenting, would have granted leave to appeal and would have allowed the appeal in relation to the order which applied to the years 1998/1999 and 1999/2000. In relation to the appeal from the order of

Rose J dismissing Mr Flanagan's application for an injunction, the Court noted that the decision of Rose J was an exercise of judicial discretion and appellate courts will only interfere with such an exercise within certain well defined limits.

The grounds of appeal include:

Part A "The Application for Review"

Kay and Holden JJ were mistaken as to the law in their separate Reasons for Judgment because:

(1) Kay and Holden JJ erred by failing to consider that the only application before the trial judge, Rose J, was for a decrease. (Johnson and Johnson (1998) 24 Fam LR.); and

(2) Kay and Holden JJ erred by failing to consider that the trial judge had

failed to inform the applicant that he was reviewing any other years

other than the 1997 and 1998 Child Support Years. (Johnson and Johnson (1998) 24 Fam LR.);

Finn and Kay and Holden JJ erred in their respective Reasons for Judgment, by failing to consider that:

(1) The trial judge had erred by failing to correct arithmetic errors made by Judicial Registrar Johnston in the Reasons for Decision dated 29 January 1999.

(2) The trial judge had erred by accepting as evidence from the respondent, Exhibit 1 "Weekly Costs – A... and C...", during the course of the proceedings and without adequate substantiation.

Part B "The Application for Injunction"

Finn J was mistaken as to the law in her separate reasons for judgment. Her Honour erred in coming to the conclusion that decisions, prior to the decision of B and B: Family Law Reform Act 1995 (1997) FLC 92-755 and prior to the substantial rewriting of Part VII of the Act, must carry little authority in determining an application for an injunction in relation to the use of a particular name for a child;

Kay and Holden JJ were also mistaken in considering that the discretion of the trial judge had not miscarried and that the trial judge was not mistaken as to the law by considering that:

(1) The paramountcy principle although relevant was not decisive in determining an application for an injunction in relation to the use of a particular name for a child; and

(2) The decision of the trial judge was only an exercise in discretion in an application for an injunction in relation to the use of a particular name for a child.

The respondent has filed a notice of motion seeking a revocation of the grant of special leave or, in the alternative, the revocation of part of the grant of special leave. The respondent contends that the grant should have been limited to the issue of the injunction.

Published in Case Summaries

Thursday, 01 July 2010 14:17

Full Court Matters - June 2001

Full Court Matters (Other than Applications for Special Leave to Appeal)
COMMENCING 19 JUNE 2001

GREY v. THE QUEEN (S2/2001)

Court appealed from: New South Wales Court of Criminal Appeal

Date of judgment: 3 March 2000

Date of grant of special leave: 15 December 2000

On 26 August 1998 following a trial by jury in the District Court, the appellant was convicted on five counts of disposing of stolen motor vehicles. The Crown case was that the appellant was involved in the re-birthing of motor vehicles and their subsequent re-sale. The appellant did not dispute having had possession of, or having disposed of, the vehicles in their converted state. He denied stealing them, converting them, or knowing that they had been stolen.

He claimed that he had received four of the vehicles from one Leon Reynolds and had purchased the fifth vehicle and given it to Leon Reynolds to repair. Leon Reynolds was a critical Crown witness. His credibility was a serious and important issue. He had pleaded guilty in 1993 to a series of charges of a similar nature and had been sentenced to periodic detention. What was not known to the appellant's legal advisers at trial was that in Leon Reynolds' sentencing proceedings, Detective Bandouvakis (the informant in the case against the appellant) had provided to the court a letter of comfort, outlining assistance that Leon Reynolds had given, both in admitting his own guilt, but also, importantly, in relation to police inquiries into car re-birthing in the central west of the State. It was apparent that Leon Reynolds had received a very significant benefit resulting from the information that he gave Detective Bandouvakis.

The appellant's appeal to the Court of Criminal Appeal was essentially based upon the contention that the failure to disclose information about the letter of comfort, irrespective of where the fault lay for that state of affairs, caused a miscarriage of justice. A consideration was whether that evidence was evidence that could have been, with reasonable diligence, available at the trial. (It was not challenged that had the Crown Prosecutor at the appellant's trial been aware of the content of the letter of comfort he would have disclosed it to the defence.)

The majority of the Court of Criminal Appeal found that there had been no miscarriage of justice and made reference to the strength of the Crown case on other aspects and dismissed the appeal. Simpson J would have allowed the appeal, finding that "[t]he existence of the letter and the advantage derived by Reynolds as a result were important relevant matters affecting Reynolds'

credibility which should have been known to the appellant's counsel at trial ..... I am of the view that ..... a miscarriage [of justice] occurred".

The grounds of appeal are:

The majority of the Court of Criminal Appeal erred in concluding that in the circumstances that existed the obligation fell upon the appellant to discover, rather than upon the Crown to disclose, evidence relating to the personal circumstances of a prosecution witness who was a police informer;

The majority of the Court of Criminal Appeal erred in concluding that the unavailability of evidence discovered after the trial did not cause the appellant to lose a fair chance of acquittal; and

The majority of the Court of Criminal Appeal erred in dealing with the issue raised on the appeal by reference to the principles of "fresh evidence" rather than as a case of lack of disclosure by the Crown, and in failing to have regard to or to determine the question whether the failure of the Crown to disclose relevant information in its possession caused the trial proceedings to be unfair and therefore to miscarry.

BAXTER v. OBACELO PTY LTD & ANOR (S10/2001)

Court appealed from: New South Wales Court of Appeal

Date of judgment: 31 March 2000

Date of grant of special leave: 15 December 2000

Mr Phillip Whitehead carried on a solicitor's practice. The appellant was an employed solicitor within the practice. The respondents retained Mr Whitehead to act on a conveyancing transaction. The appellant had the conduct of that conveyancing work.

In May 1987 the respondents commenced proceedings, claiming that the appellant and Mr Whitehead were negligent in their conduct of the conveyancing.

After commencement of the action, the claim between the respondents and Mr Whitehead was settled. A Deed of Release was entered into between the respondents and Mr Whitehead and Terms of Settlement were filed. The Terms provided for judgment in favour of the respondents for $250,000. The Terms further noted that Mr Whitehead undertook to the respondents "to take no further part in [the] proceedings except as he may be required by law". The $250,000 has been paid.

On 10 July 1998 the appellant sought summary dismissal of the proceedings against him pursuant to Part 13 r5 of the Supreme Court Rules. That rule provides that proceedings may be dismissed, inter alia, if no reasonable cause of action is shown. The appellant claimed that the proceedings against him should be dismissed because the settlement with Mr Whitehead and the payment of $250,000 in satisfaction of the judgment entered against him meant that the proceedings against the appellant were futile. Master Harrison refused the application. Hulme J dismissed an appeal from the Master's decision.

The appellant appealed, raising three separate arguments: (1) That the satisfied judgment against Mr Whitehead precluded recovery of any judgment sum from the appellant; (2) That the satisfied judgment against Mr Whitehead barred further proceedings against the appellant; and (3) That the settlement with Mr Whitehead and payment of the settlement amount barred the respondents from continuing the proceedings against the appellant because the respondents had received full satisfaction for their loss. The Court of Appeal unanimously dismissed the appeal.

The grounds of appeal are:

Their Honours erred in failing to find that by force of s5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946, a judgment against one tortfeasor, which is satisfied, precludes further proceedings against another joint tortfeasor or, alternatively, precludes any recovery of any judgment against that tortfeasor;

Their Honours erred in failing to hold that s5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946 applies to the situation where two tortfeasors are sued in the one proceedings; and

Their Honours erred in failing to hold that a consent judgment which is satisfied against one joint tortfeasor for an agreed settlement amount, bars a plaintiff from proceeding to recovery on any judgment against the other joint tortfeasor.

PALMER BRUYN & PARKER PTY LIMITED v. PARSONS (S8/2001)

Court appealed from: New South Wales Court of Appeal

Date of judgment: 29 March 2000

Date of grant of special leave: 15 December 2000

The appellant company, which carried on a surveying business, sued the respondent for injurious falsehood. One aspect of the appellant's business was to conduct negotiations with councils on behalf of persons submitting development applications to those councils. In mid 1995 McDonald's Australia Pty Ltd engaged the appellant to act for it in relation to a proposal to establish a McDonald's outlet at Wallsend.

The first step in the process was a rezoning application which was to come before Newcastle City Council on 26 March 1996. The respondent, a councillor of the Newcastle City Council representing the ALP, had been lobbied for support by a Mr Christopher McNaughton, an employee of the appellant. The conduct of Mr McNaughton had irritated the respondent.

On 24 March 1996 the respondent forwarded a letter by facsimile to another ALP councillor, Mr John Manning. The letter was composed in the following way. The respondent took a letter which had been sent by Mr McNaughton in relation to the rezoning. He cut off the letterhead and signature block containing the signature of Mr McNaughton. He wrote the words complained of and the signature block as a composite document. The letter which was addressed to the councillors representing the ALP purported to offer McDonald's items for support of the application. Mr Manning sent copies by fax to the three other Labor caucus members (including the respondent), the three Green Councillors, the General Manager of the Council and to the appellant. The Council rejected the rezoning application. The appellant put the matter in the hands of the police.

On 11 May 1996 an article appeared in the Newcastle Herald referring to the hoax letter. Mrs Robyn Richards, the NSW Real Estate Manager for McDonald's, was sent a copy of the newspaper article. Once McDonald's became aware of the assertions, it terminated its business relationship with the appellant. The appellant sued the respondent for injurious falsehood, claiming an actual loss of $38,000 as a result of losing the McDonald's contract, together with a sum for punitive damages.

The trial judge found that the material complained of was false in that it attributed to Mr McNaughton statements that he had never made. He found that it was likely to injure the appellant in its business. He found that it was published maliciously. The trial judge found that it was not the natural and probable result of the respondent sending the facsimile to Mr Manning that it

would be republished in the Newcastle Herald. The trial judge found that the appellant lost its contract with McDonald's as a result of Mrs Richards, a responsible executive, learning of the 24 March 1996 letter through the newspaper article. The trial judge found that the claimed loss of $38,000, though not evidenced wholly satisfactorily, was reasonable actual compensation for the loss of the McDonald's contract. But he found that the respondent was not liable for that loss because of his findings as to the lack of nexus between the respondent's letter and the newspaper article.

The Court of Appeal found that the decision of the trial judge was correct.

The grounds of appeal include:

The Court of Appeal should have found as harm was intentionally caused by the respondent, there would be no difficulty about the problem of legal causation, since all intended consequences are legal or proximate;

In view of the trial judge's findings the respondent's fake letter was calculated to and likely to injure the appellant in its business the Court of Appeal should have found the respondent must be taken to have foreseen the result of such intentions being the loss of the McDonald's contract which said loss was caused by the respondent's letter; and

The Court of Appeal erred in finding that although the trial judge concluded the impugned letter was calculated to injure the appellant in the sense it was likely to do so this did not mean the respondent necessarily intended that result.

* * * * * * * * *

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

BRISBANE CIRCUIT SITTINGS

COMMENCING 25 JUNE 2001

MAGGBURY PTY LTD & ANOR v. HAFELE AUSTRALIA PTY LTD & ANOR (B36/2001)

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

Date of Judgment: 12 May 2000

These proceedings concern the appellants' wall mounted fold-a-way ironing board and assembly, which can be attached directly to a wall without other support, folded against a wall for storage, folded in half for compactness and rotated through 180 degrees so as to allow any ironing position within that range.

In July 1995, the appellants lodged a patent application and the ironing board was ready for commercial exploitation. Between July 1995 and June 1997, Mr Allen, on behalf of the appellants, negotiated exclusively with the respondents. Mr Allen had prepared designs and prototypes of the ironing board.

In 1996 the first appellants assigned its rights to the invention to the second appellant. The second appellant subsequently filed a PCT international patent application in respect of that design. The specification was published on 6 February 1997.

Prior to the disclosure of the invention to them, the respondents signed Deeds of Confidentiality dated 25 July 1995 and 13 November 1995. An optional agreement was also entered into which stated that Hafele Germany would carry out a market investigation before entering into any license agreement. In the confidentiality agreements, the definition of "Information" was limited to "each and every record of information whatsoever disclosed, shown or provided to the respondents by Maggbury Pty Ltd in relation to the product". These included diagrams, drawings (including detailed production drawings), specifications for components, prototypes and photographs of prototypes. The agreements acknowledged that the property in those items resided in and was to remain in the appellants. The agreement prevented the use of the information without time limit, and applied irrespective of the confidentiality of the information even if the information was put in the public domain by or with the consent of the appellants.

The respondents, with the consent or acquiescence of the appellants, made disclosures of the invention at trade fairs in Sydney and Melbourne in July 1996 and in Germany in May 1997, for the purpose of carrying out a market investigation of the viability of the product. The appellants also provided the respondents with photocopies of production drawings of various prototypes of the ironing board.

In June 1997, the respondents terminated discussions with the appellants. In October 1997, the second respondent was manufacturing and selling and the first respondent was importing and selling a product which copied some features of the appellants' invention and also copied engineering details contained in production drawings and evident from a close inspection of the latest prototype.

The trial judge found that features of the wall mounted board were designed using information supplied to the respondents by the appellants and that the respondents were in breach of the agreement by making wall mounted boards and by importing and distributing them. Damages were awarded and an injunction granted.

The appeal to the Court of Appeal was allowed. The Court found that the agreement not to use information was unenforceable, because it had no time limit and covered all information whether or not publicly disclosed. The Court further found that no injunction should have been granted under the general law, because the information had been made public, so far as it is of significant value. They upheld the award of damages, but reduced it to $5,000 to reflect the fact that the information used was, at least in large part, publicly available.

The grounds of appeal are:

The Court of Appeal erred in holding that the confidentiality agreements were invalid and/or unenforceable;

The Court of Appeal erred in holding that the restraint of trade doctrine applied to the agreements; that the reasonableness of those agreements had to be inquired into; and that the contracts afforded adequate protection to the interests of the appellants;

The Court of Appeal erred by failing to give reasons for its apparent conclusion that the confidentiality agreements operated as a restraint on the respondents' trade;

To the extent that the Court of Appeal decided that the restraint of trade doctrine applied or that the confidentiality agreements were in unreasonable restraint of trade, it misconstrued the confidentiality agreements, the injunctions granted at first instance, took into account irrelevant considerations, failed to take into account relevant considerations and otherwise erred in law;

The Court of Appeal erred in holding that a contract preventing the use of materials embodying information whether or not publicly available without time limit is unenforceable, or unenforceable by injunction; and

The Court of Appeal failed to consider misconstrued or misapplied authorities to which they were referred.

PFEIFFER v. STEVENS (B40/2001)

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

Date of Judgment: 24 March 2000

The appellant is the director of Cable Ski World Pty Ltd, the occupier of certain land in Coombabah. By a complaint made by the respondent on 11 September 1998, it was alleged that the appellant, on 4 September 1998, upon the subject land, had damaged protected vegetation contrary to s5(1) of the Gold Coast City Council Interim Law 6 (Vegetation Management). That law was made in accordance with the provisions of the Local Government Act 1993 (Qld), by the Council of the Gold Coast by resolution dated 7 March 1997.

In accordance with s863(1) of the Local Government Act, a Notice of the Making of the Interim Local Law was published in the Gazette of 14 March 1997 and was expressed to operate until 14 September 1997 unless extended by the Minister for Local Government. By a further notice published in the Gazette on 5 September 1997, the law was extended to 14 March 1998. The second gazettal did not purport to reserve to the Minister any power to further extend that law. However, on 13 March 1998, by a notice published in the Gazette, the operation of the law was extended to 14 September 1998.

On 5 July 1999, a Stipendiary Magistrate at Southport dismissed the respondent's complaint. The Magistrate stated he was satisfied that the Interim Local Law ceased on 4 September 1997, and that there was no bona fide law under which the appellant could have been charged. The Council appealed, pursuant to s222 of the Justices Act 1986 (Qld), to the District Court.

At the hearing of the appeal, the appellant argued that s860 of the Local Government Act, only authorised the Minister to grant one extension of the Interim Local Law

Hanger DCJ found that the provision in question should not be interpreted in such a way as to permit only one extension. His Honour found that, although there is a sunset clause which one must assume was intended to prevent local law continuing indefinitely, there was nothing in section 860(2)(b) limiting the period the Minister can allow for which the local law will expire.

The appellant also complained that the gazettal of 5 September 1997 did not contain a provision allowing the Minister to extend the operation of the law. Hanger DCJ found that there was no significance in that omission and that the power to extend the period was provided by virtue of s860(2)(b) and was not acquired by publishing it in the gazette. The appeal was allowed.

The appellant then sought leave to appeal the judgment of the District Court to the Court of Appeal and on 24 March 2000, the Court dismissed the application for leave to appeal.

The grounds of appeal are:

The Court of Appeal erred in finding that a 'sunset provision' permitted an interim local law to be extended for an indefinite period determinable only by the number and extent of multiple determinations by the Minister for Local Government;

The Court of Appeal erred in concluding that s863(2)(c) of the Local Government Act 1993 (Qld) conferred or was capable of conferring a statutory power to extend indefinitely the expiry date of an interim local law contrary to the mandatory provisions of s860(2) of the Act; and

The Court of Appeal erred in concluding that s863(2)(c) if it did confer a power to extend the expiry date of an interim local law, empowered the Minister to extend such a law indefinitely by force of s23(1) of the Acts Interpretation Act 1954 (Qld)

FESTA v. THE QUEEN (B39/2001)

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

Date of Judgment: 17 March 2000

At various dates between 8 May 1996 and 13 June 1996, there were three armed robberies of National Australia Banks in Morningside, Biggera Waters and Paradise Point. The appellant was convicted of involvement in the armed robberies at Biggera Waters and Paradise Point but was not charged with respect to the robbery at Morningside. Both robberies were alleged to have been committed by a male and a female. The primary question at trial was whether the prosecution had established the identification of the appellant as the female robber.

On 25 April 1997 one Renton was convicted of the robberies of Biggera Waters and Paradise Point, but was acquitted of the robbery at Morningside. The appellant was indicted and tried jointly with Renton. The trial judge directed the jury that there was evidence of a close association between the appellant and Renton which might lead them to conclude that she helped Renton to commit the two robberies.

Renton had been released from prison on leave on 3 May 1996, and shortly thereafter phoned the appellant, to whom he had been writing whilst he was in jail, at her home. On 19 May, some days after the Morningside robbery, Renton used a false name to rent an unfurnished unit for which he paid the landlord the sum of $1,160 in cash. During covert surveillance, the appellant was seen to be a regular visitor to the unit, to which she had a set of keys. Her fingerprints were found on a can of hair and wig sheen and a bottle of spirit gum remover found in the unit. Two wig stands and a set of instructions on the use of disguises were also found in the unit. Disguises were used by the participants in one or both of the robberies. A search of the unit revealed substantial sums of cash including a large number of five dollar notes, items of new furniture and new electrical equipment. The search also revealed firearms, ammunition, a sledge hammer and a radio scanner. At the time of her arrest, the appellant was carrying $850 in cash including 25 five dollar notes. There was further evidence of an association between the two. The stolen cars used in the robberies were seen to be driven by a man and a woman, property taken from two of the stolen cars was found in the car driven by the appellant, whilst items taken from one of the vehicles was found at the home of the appellant.

The Crown case also relied upon identification evidence of three witnesses to the Biggera Waters robbery (Fyffe, Ogilvie and James) and one witness (Hill) to the robbery at Paradise Point. The identification evidence comprised photoboards and in court visual and aural identification.

The grounds of appeal are:

The failure to exclude the evidence of the witnesses James, Ogilvie, Fyffe and Hill who purported to directly identify the appellant has resulted in a miscarriage of justice;

The admission of the evidence, as circumstantial evidence, of those witnesses who purported to directly identify resulted in a miscarriage of justice;

The trial judge's directions in relation to eyewitness identification and voice identification were inadequate;

The failure to exclude the evidence of the discovery of weapons and ammunition subsequent to the offences resulted in a miscarriage of justice;

The trial judge's directions in relation to the discovery of weapons and ammunition were inadequate; and

The trial judge's directions as to the association between the appellants and Renton resulted in a material misdirection.

Published in Case Summaries

Thursday, 01 July 2010 14:08

Full Court Matters - August 2001

(Other than Applications for Special Leave to Appeal)

COMMENCING 7 AUGUST 2001

McGARRY v. THE QUEEN (P61/2000)

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

Date of Judgment: 6 December 1999

Date special leave granted: 4 August 2000.

The appellant pleaded guilty on 30 October 1998 to one count of indecent dealing of a child under the age of 13 years, contrary to s320(4) of the Criminal Code 1913 (WA).

The charges arose out of the following events: On 18 December 1997, the appellant noticed the complainant's photograph in a local newspaper. He used the telephone directory to locate her home address, attended at that address, attracted the complainant's attention by tapping on the window and performed an indecent act. On three subsequent occasions the appellant telephoned the complainant's residence stating that he was a "Sergeant Phillips" of the Fremantle Police Station and that he wished to discuss the incident.

In sentencing, three pending charges of personating a member of the police force were taken into account pursuant to s32 of the Sentencing Act 1995.

The sentencing Judge found that the offence was at the level of 7 years' imprisonment to which a credit of 2 years was allowed because of a "fast track" plea. The sentencing Judge found that there was no eligibility for parole. He also found that the appellant had a constant history of sex offending against younger females and that previous detention for similar offences had not dissuaded the appellant. He came to a conclusion that pursuant to s98 of the Sentencing Act 1995 (WA), the appellant would be a danger to a part of society and that there was a clear risk that he would commit other indictable offences. As such, the sentencing Judge made a declaration of indefinite imprisonment.

On appeal to the Court of Criminal Appeal, the Court unanimously allowed his appeal with respect to the length of sentence, reducing it from 5 years to 3 years. That part of the appeal relating to parole eligibility was unanimously dismissed. With respect to the imposition of an indefinite sentence, a majority of 2:1 found that the trial Judge had properly used his discretion in imposing an indefinite sentence. Section 98(2) of the Sentencing Act 1995, states that indefinite imprisonment must not be ordered unless the Court is satisfied, on the balance of probabilities, that when the offender would otherwise be released from custody in respect of a nominal sentence, he or she would be a danger to society or part of it. The subsection enumerates 4 factors upon which the sentencing Judge can make an order of indefinite imprisonment including the exceptional seriousness of the offence, the risk that the offender will commit other indictable offences, the character of the offender and any other exceptional circumstances. The majority of the Court of Appeal noted that the trial Judge had referred to the exceptional seriousness of the offence, the risk of recidivism, the predatory nature of the offences and the history of offending of this type.

Since the grant of special leave to appeal, the appellant has filed a notice of a constitutional matter and a notice of motion seeking leave to amend the notice of appeal. The constitutional issue said to arise is:

Whether s98 of the Sentencing Act 1995 (WA) and s25 of the Sentence Administration Act 1995 (WA) are invalid because the power invested in the Supreme Court of Western Australia and the District Court of Western Australia under those provisions are:

(a) repugnant to or incompatible with the exercise of federal judicial power of the Commonwealth and with the role and function of the Supreme Court and the District Court;

(b) have the tendency to undermine public confidence in the integrity, independence and impartiality of the Supreme Court and District Court; and

The ground of appeal is:

Whether the learned sentencing Judge erred in law in failing to satisfy himself that the appellant would be a danger to society or part of it at the time the appellant would be released from custody in that he failed to give express consideration to all the relevant factors specified in s98(2) of the Sentencing Act 1995 (WA).

REGIE NATIONAL DES USINES RENAULT SA & ANOR v. ZHANG (S9/2001)

Court appealed from: New South Wales Court of Appeal

Date of Judgment: 27 July 2000

Date of grant of special leave: 15 December 2000

The respondent came to Australia from China in 1986. He was advised that he would be granted permanent residency in Australia if he left the country to make application for such residency from outside Australia. He travelled to New Caledonia for this purpose. While in Noumea he hired a Renault motor vehicle from a car rental company. He suffered serious injuries when he lost control of the car. He brought an action framed in product liability in the Supreme Court of New South Wales against the appellants. The appellants (who have no presence in New South Wales or Australia) sought a stay of the proceedings.

The issue before the primary judge was whether the Supreme Court of New South Wales was an appropriate forum to try the respondent's action. The primary judge found that the practical considerations tended to favour New South Wales, but that the case had a close connection with France and New Caledonia. "The substantive law to be applied is French law. On any reasonable view the tort alleged, whether negligent design or negligent manufacture, is French." His Honour exercised his discretion and granted a stay on conditions.

The respondent sought leave to appeal, relying on nine grounds of appeal.

The Court of Appeal found that the discretion miscarried and it was appropriate to re-exercise it. "[The primary judge] should have held that the opponents had not discharged the onus of showing that New South Wales was a clearly inappropriate forum and refused the stay." Leave to appeal was granted and the appeal allowed with costs.

The respondent has filed a notice of contention raising multiple grounds. The primary submission of the respondent relates to the failure of the appellants to discharge before the primary judge either the positive or the negative aspect of the onus they bore under the Australian test to show that New South Wales is a clearly inappropriate forum.

The grounds of appeal are:

The Court of Appeal erred in finding that the trial judge erred in holding that French law would govern the respondent's claim were the matter to be litigated in New South Wales, and then proceeding to re-exercise the discretion which had been exercised by the trial judge in the appellants' favour and in favour of a stay of proceedings.

The Court of Appeal erred in finding that the trial judge's holding that French law would govern the respondent's claim was premature in circumstances where it was accepted (and the Court of Appeal held) that any tortious conduct occurred in France.

The Court of Appeal erred in holding that arguably New South Wales law would govern the respondent's claim.

The Court of Appeal erred in interfering with the trial judge's careful exercise of discretion on the basis of its finding (which itself constituted an error of law) that the trial judge erred in holding that French law would govern the respondent's claim.

GERLACH v. CLIFTON BRICKS PTY LIMITED (S43/2001)

Court appealed from: New South Wales Court of Appeal

Date of Judgment: 28 April 2000

Date of grant of special leave: 16 February 2001

The appellant commenced proceedings in the Supreme Court in July 1989, seeking damages against the respondent for injuries for an industrial accident. Years later the proceedings were remitted to the District Court. At the appropriate stage, while the action was pending in the Supreme Court, the appellant had requisitioned for trial by jury. It was accepted that this requisition remained effective after the transfer of the proceedings to the District Court so as to require the action to be tried with a jury unless it was dispensed with.

On the second last working day before the trial the appellant obtained an order to dispense with the jury. The respondent opposed the making of such order. Christie DCJ exercised the discretion conferred by Section 79A of the District Court Act 1973 which provides: "In any action the court may order, despite sections 77, 78 and 79, that all or any questions of fact be tried without a jury". In the exercise of his discretion, Christie DCJ considered the number of witnesses who would have to be called from different parts of the country and said that the appellant would be put to significant financial burden in calling an expert witness in addition to providing accommodation for the lay witnesses while they waited to be called before the jury.

The hearing of the appellant's case proceeded before Morrison ADCJ. The appellant was awarded $390,000 damages.

The respondent appealed, challenging not only the trial judge's decision on liability and damages, but also challenging the interlocutory order of Christie DCJ.

The Court of Appeal held that the respondent could challenge the interlocutory order to dispense with the jury on an appeal against the final judgment. The Court held that the cost of witnesses was not a relevant consideration in the exercise of the judge's discretion and therefore that the order to dispense with the jury should not have been made. The Court further held that the respondent was entitled to a retrial.

The appellant has filed a notice of motion seeking leave to amend the grounds of appeal.

The proposed amended grounds of appeal include:

The Court of Appeal was wrong in setting aside the decision of the District Court under s79A of the District Court Act 1973 to dispense with the jury previously requisitioned in the proceedings;

The Court of Appeal erred in applying a restriction upon the discretion vested in the District Court by s79A as propounded by the Court of Appeal in Pambula Public Hospital v. Herriman (1988) 14 NSWLR 387 and applied in subsequent decisions;

The Court of Appeal ought not to have followed its earlier decision in Pambula, it being wrongly decided, and the discretion of s79A being general and unfettered; and

The Court of Appeal failed to apply the decision and reasoning of the High Court in Patton v. Buchanan Borehole Collieries Pty Limited (1993) 178 CLR 14 in relation to the discretion conferred by s79A.

* * * * * * *

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

ADELAIDE CIRCUIT SITTINGS

COMMENCING MONDAY, 13 AUGUST 2001

RE SWINBANK & ORS; EX PARTE ELDERS LIMITED & ORS ( A23/2000)

Date of order directing application be made by notice of motion: 28 November 2000

The applicants seek prerogative relief in respect of the same decision of the Full Federal Court which is the subject of the appeal contained in A43/00. The appellants seek certiorari to quash the decision of the Full Court. They also seek mandamus directed to the Full Court directing them to consider and determine the matters that were before them on the grounds that the Full Court did have jurisdiction to hear the appeal and to decide the matters.

The grounds of the application for prerogative relief and the appellants' arguments are the same as those in their appeal. The appellants submit that if the appeal succeeds there is no need for this Court to grant prerogative relief.

On 10 August 2000, a single Justice had directed that the application for prerogative relief be made to the same Full Court hearing the special leave application. On 28 November 2000 the Court directed that the application be made by way of Notice of Motion.

The judges of the Federal Court named as respondents to the prerogative relief application submit to the jurisdiction of the Court. The other respondents, who are the respondents to the appeal, do not intend to make any submissions except on the questions of costs.

ELDERS LIMITED & ORS v. SWINBANK & ORS (A43/2000)

Court appealed from: Full Federal Court of Australia

Date of judgment: 4 February 2000

Date special leave granted: 28 November 2000

The appellants paid for, and received, professional indemnity insurance cover from the respondents by way of an insurance policy (the "PI policy"). As a consequence of proceedings in the Supreme Court of the Northern Territory, the appellants incurred liability under a Deed of Settlement as well as certain other costs in respect of which they contend they are entitled to be indemnified under the PI policy. Despite demand being made, the respondents have refused to provide the indemnity sought by the appellants under the policy.

In 1997 the appellants commenced proceedings in the Federal Court, in reliance upon the Jurisdiction of Courts (Cross-Vesting) Act 1987 (SA), to enforce the PI policy. Orders were made by consent in 1998 by Mansfield J for the separate determination of certain issues. On 16 June 1999 Mansfield J delivered judgment on those issues. On 17 June 1999 the High Court delivered its decision in Re Wakim (1999) 73 ALJR 839. The respondents sought leave to appeal against the judgment of Mansfield J and to raise the question of jurisdiction. The appellants sought leave to amend their claim to plead explicitly damages for breach of late payment of sound claim and reliance on s57 of the Insurance Contracts Act 1984 (Cth) (the "ICA") (for interest payable for late payment of sound claim). The Full Federal Court heard argument on the jurisdictional issue and the amendment issue at the same time. The appellants submitted that even without the amendment sought to the statement of claim, their entitlement to interest under the ICA was raised as an issue in the action from the outset, in a way sufficient to require the Court to make a determination on it, quite apart from the cross-vesting legislation. Because the claim to interest arises under a law of the Parliament, it thus is within the Court's original jurisdiction under s39B(1A)(c) of the Judiciary Act 1903 (Cth). The appellants contended that it is not necessary to make explicit reference in the pleadings to the statutory source of law and that it is sufficient if the material facts are pleaded on proof of which the statutory (federal) liability is established. Alternatively it was submitted that the Court would have had jurisdiction had the appellants been given the opportunity to amend the Statement of Claim as contemplated. The Full Court determined that the proceedings should be stayed because the Full Court had no jurisdiction, following the decision in Re Wakim. On that ground also the application to amend the Statement of Claim was refused.

The grounds of appeal include:

The Court below erred in not considering that s57 Insurance Contracts Act 1984 (Cth) (the ICA) is the sole remedy for late payment of a sound insurance claim, to the exclusion of –

(a) Section 30C Supreme Court Act 1935 (SA) and equivalent statutory provisions for pre-judgment interest in other States; and

(b) common law damages for breach of contract, including but not limited to, damages in accordance with the principle in Hungerfords v Walker (1990) 171 CLR 125.

The Court below erred in not considering that there is a "matter arising under a law of the Parliament" sufficient to attract the jurisdiction of the Federal Court where from the commencement of a proceeding in the Federal Court, or subsequently, facts are pleaded which, if proved, would entitle the applicant to relief as follows:

(a) to a remedy (statutory interest) provided by a law of the Parliament (s57 ICA), although no explicit reference is made in the pleading to that statutory remedy;

(b) by reason of a legislative amendment coming into effect after the commencement of the proceedings, to an exclusive federal statutory remedy, although no explicit reference is made in the pleading to that exclusive statutory remedy;

(c) as in (a) and (b) above respectively, but in each case an application is made subsequently to amend the pleadings by adding an explicit reference to the federal statutory remedy; and

(d) to the statutory protection afforded by s41 ICA in circumstances where explicit reference is made in the pleadings to that statutory provision and its operation put in issue by a denial contained in the respondents' pleaded Defence.

The respondents' submissions in the appeal are confined to questions of costs.

The Commonwealth, South Australia and Western Australia will be intervening.

The appellants have also made application for prerogative relief in respect of the decision of the Full Court, in matter A23 of 2000. The grounds for prerogative relief are the same as those in the appeal.

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v. SINGH (A11/2001)

Court appealed from: Full Federal Court of Australia

Date of judgment: 15 August 2000

Date special leave granted: 16 February 2001

The respondent (Singh) is an Indian citizen of Sikh ethnicity. After his family was killed by a Hindu mob in 1984, Singh joined the Khalistan Liberation Force (the "KLF"). He remained an active member until he left India for Australia in 1996. He knowingly participated in the unlawful killing of a police officer and other acts of violence. He did so by providing information to other members of the KLF and also in some cases providing weapons. Singh's application for a protection visa was refused on the grounds that he had committed crimes against peace. The Refugee Review Tribunal (the "RRT") held that his participation in the murder of the police officer was a non-political crime on the basis that there could be no nexus or proportionality or close or direct link between the revenge murder of the particular police officer and the alleged political objectives of the KLF. The RRT also held that Singh's involvement in the other violent crimes constituted an involvement in non?political crimes.

Mansfield J dismissed an application for review. His Honour held that the RRT had erred in finding that a crime motivated by revenge was necessarily incapable of being a political crime. However he did not consider that the RRT had erred in the way it dealt with the other crimes committed by Singh and therefore did not uphold the challenge. Singh appealed to the Full Court.

The Full Court upheld Singh's contention that the RRT was required to make a finding, on the material before it, as to the nature of the crimes in which the weapons were likely to have been used. The Court said that without such a finding, it was not possible to determine whether they were political or non-political crimes. On the appellant's "cross-appeal", the Full Court accepted that there were crimes that of their nature were incapable of being characterised as political crimes. However the Full Court considered that there may be circumstances in which murdering a particular police officer for revenge could be characterised as a political crime. The Court held that the RRT ought to have considered whether the crime occurred in the midst of a political struggle and then determined whether, notwithstanding such a struggle, the crime cannot be characterised as political.

The grounds of appeal include:

The Full Court erred in holding that the Tribunal was required to look at the circumstances of the crime so as to determine whether it is an incident of a political struggle before considering whether there are other characteristics of the crime which make it a "non-political crime" within Article 1F of the Refugee Convention and Protocol, notwithstanding the existence of any political struggle. The Full Court should have held that it is not an error of law for the Tribunal to find that a particular crime is so atrocious that it can bear no sufficient proportionality to political objectives for it to be capable of characterisation as a "political crime" irrespective of the existence of a political struggle.

SULLIVAN v. MOODY & ORS (A21/2001)

Court appealed from: Full Court Supreme Court of SA

Date of judgment: 17 October 2000

Date special leave granted: 1 June 2001

The appellant sued the respondents in negligence. His case was that there had been an allegation that he had sexually abused one of his children; that the child was questioned and examined by a medical practitioner who investigated the allegation and formed the opinion that the appellant had sexually abused his child; that this opinion was negligently reached; that two social workers were also involved in that investigation and they also formed the same opinion; that the social workers had done so negligently. These opinions were then communicated to officers of the Department for Community Welfare (the "Department"), the police and to other respondents; that officers of the Department were negligent in dealing with the investigation and in their response to the allegations; that as a result the appellant was separated from his child and suffered shock, anguish and distress. The respondents are the doctor, the social workers and the officers of the Department; the two hospitals alleged to be the employers of some of the individual respondents; and the State of South Australia as the employer of some respondents and the entity liable for the negligence of the officers of the Department.

Upon the application of the respondents, a Master had struck out the statement of claim as not disclosing a cause of action. Before the Master, the appellant conceded that the decision of the Full Court of the Supreme Court of South Australia in Hillman v. Black governed his case and could not be distinguished. After the Master had made his decision, the Full Court in CLT v. Connon & Ors considered a challenge to the correctness of Hillman v. Black. That Full Court (Doyle CJ, Duggan & Gray JJ) held that causes of action, indistinguishable from those advanced in Hillman v. Black could not succeed as a matter of law. When this matter came before the Full Court, the appellant conceded that there was no material distinction between the case as pleaded by the appellant and the case pleaded in CLT v. Connon & Ors. The Full Court (Doyle CJ, Williams & Wicks JJ) dismissed the appellant's appeal.

The ground of appeal is:

That the Full Court of the Supreme Court of South Australia erred in deciding that it was not arguable that the Statement of Claim filed in the Supreme Court of South Australia by the appellant disclosed a cause of action and that it was capable of being amended to show a cause of action against the respondents to this appeal.

The matter of CLT v. Connon & Ors had been granted special leave to appeal. In the High Court that appeal is known as Thompson v. Connon & Ors. The ground of appeal in this appeal is the same as that raised in Thompson v. Connon & Ors (A23/2001).

THOMPSON v. CONNON & ORS (A23/2001)

Court appealed from: Full Court, Supreme Court of SA

Date of judgment: 6 July 2000

Date special leave granted: 1 June 2001

The appellant had been charged with criminal offences alleging sexual abuse of his three children. The charges followed medical examinations of the children and subsequent reports to the Department of Community Welfare (the "Department") concerning alleged sexual abuse by the appellant. In time all charges were either discontinued or the subject of nolle prosequi. It is asserted that as a result the appellant's relationship with his children has been significantly impaired, if not ruined.

He sued, claiming damages alleging a breach of common law duty of care. The respondents are the two medical practitioners who examined the children and made a report to the Department; the Hospital which provided the Sexual Assault Referral Centre where the children were examined; and the State of South Australia whose Department had responsibility regarding the welfare of allegedly abused children.

The respondents applied to strike out the statement of claim as disclosing no cause of action. In the appellant's path stood the decision of the Full Court of the Supreme Court of South Australia in Hillman v. Black. The facts in Hillman v. Black were similar to the present case. The Full Court in Hillman v. Black had found that there was no duty of care. The Master concluded that he was bound by the decision in Hillman v. Black and struck out the action. The appellant appealed to the Full Court, arguing that a number of recent High Court judgments on the issue of proximity should lead to a reconsideration by the South Australian Full Court of the decision in Hillman v. Black. The Full Court (Doyle CJ, Duggan & Gray JJ) agreed that it should reconsider Hillman v. Black and the issue of whether there was a duty of care. Although the reasoning of Doyle CJ differed from that of Duggan & Gray JJ they all concluded that there was no duty of care and dismissed the appeal.

The ground of appeal is:

That the Full Court of the Supreme Court of South Australia erred in holding that it was not arguable that the Statement of Claim disclosed a cause of action against the respondents.

The ground of appeal in this matter is the same as that raised in Sullivan v. Moody & Ors (A21/2001).

ERMOGENOUS v. GREEK ORTHODOX COMMUNITY OF SA INC. (A22/2001)

Court appealed from: Full Court Supreme Court of SA

Date of judgment: 5 October 2000

Date special leave granted: 1 June 2001

In late 1969 and in early 1970 the respondent and other communities invited the appellant to visit Australia from America for discussions relating to his possible appointment as archbishop. The appellant arrived in Adelaide and had some discussions with the respondent. In April 1970 a meeting of the Federation of Greek Orthodox Communities in Australia took place in Melbourne and following that meeting the appellant was formally installed as an Archbishop of the Autocephalous Church in Adelaide.

He remained as Archbishop until December 1993. He then brought proceedings in the Industrial Relations Court of SA against the respondent. His claim was for a pro rata payment in lieu of accumulated annual leave and also for a pro rata payment for accumulated long service leave . The principal issue before the Industrial Magistrate, and on the appeals which followed, was whether the appellant was an employee of the respondent at common law. The Industrial Magistrate who heard the claim held that he was. A single judge of the Industrial Relations Court dismissed an appeal from that decision. The Full Court of the Industrial Relations Court dismissed an appeal from the single judge.

The respondent then appealed to the Full Court of the Supreme Court of South Australia. There was a preliminary issue of whether the respondent had an appeal as of right, or required leave. Bleby J was of the view that there was an appeal as of right, but in any event would have granted leave if that were necessary. Doyle CJ and Mullighan J were of the view that it was an appropriate case in which to grant leave. After reviewing all the evidence which was before the Industrial Magistrate, the majority (Doyle CJ and Bleby J) found that on the evidence it was not the intention of the parties to enter into legal relations. The majority was of the view that in the case of a minister of religion an intention to enter into contractual relations in respect of an alleged contract of employment cannot be presumed but has to be proved. The appeal was allowed.

The grounds of appeal are:

Whether the Full Court erred in holding that there had in this case been no intention to create legal relations;

Whether it was open to the Full Court to make the findings of fact it did, or alternatively, whether it erred in making the findings of fact it did:

(a) in an appeal under s191 of the Industrial and Employee Relations Act 1994 (SA); and

(b) to the contrary of findings of fact below.

Published in Case Summaries

Thursday, 01 July 2010 13:51

Full Court Matters - September 2001

(Other than Applications for Special Leave to Appeal)

COMMENCING 4 SEPTEMBER 2001

RE McBAIN; EX PARTE THE AUSTRALIAN CATHOLIC BISHOPS CONFERENCE AND THE AUSTRALIAN EPISCOPAL CONFERENCE OF THE ROMAN CATHOLIC CHURCH (C22/2000)

RE McBAIN; EX PARTE THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA (AT THE RELATION OF THE AUSTRALIAN EPISCOPAL CONFERENCE OF THE ROMAN CATHOLIC CHURCH (C6/2001)

These proceedings arise out the decision of Justice Sundberg of the Federal Court of Australia wherein the second respondent, Dr McBain, sought a declaration that s8 of the Infertility Treatment Act 1995 (Vic) ("the ITA") was invalid on the basis that it was inconsistent with s22 of the Sex Discrimination Act 1984 (Cth) ("the SDA"). Section 8 precluded in vitro fertilisation treatment to be provided to the fourth respondent in the Federal Court, who is not a party to this application, on the basis that she was single. Section 8(1) provides:

"A woman who undergoes a treatment procedure must –

(a) be married and living with her husband on a genuine domestic basis; or

(b) be living with a man in a de facto relationship."

Section 22 of the SDA provides:

(1) It is unlawful for a person who, whether for payment of not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, marital status, pregnancy or potential pregnancy:

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b) in the terms or conditions on which the firstmentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

Justice Sundberg found that s8 of the ITA provides "that a woman's marital status, namely her status as a married woman or one living in a de facto relationship, is an essential requirement for availability of a treatment procedure. Section 22 of the SDA makes it unlawful for a person to refuse to provide services to another on the ground of the latter's marital status." Accordingly, his Honour found that the sections were directly inconsistent and that the Victorian Act was therefore inoperable by reason of s109 of the Constitution.

The Australian Catholic Bishops Conference and the Australian Episcopal Conference of the Roman Catholic Church, who were appointed as amici curiae in the Federal Court, brought an action within the original jurisdiction of the High Court pursuant to s75(v) of the Constitution. They were directed by Justice Callinan to proceed to the Full Court by way of notice of motion.

In the intervening period between the direction to proceed before the Full Court and the substantive hearing, leave to intervene has been granted to the following organisations: The Women's Electoral Lobby (Vic) Inc, The Australian Family Association and the Human Rights and Equal Opportunity Commission.

On 10 August 2001, the Attorney-General of the Commonwealth issued a fiat (which grants standing to the recipient) to the Australian Episcopal Conference of the Roman Catholic Church. The fiat is limited to an application for relief on the basis that the SDA does not, as a matter of construction, apply to infertility treatment the subject of the ITA and is not inconsistent with the ITA for the purpose of s109 of the Constitution. On the basis of this fiat, the Australian Episcopal Conference of the Roman Catholic Church commenced separate proceedings, C6/2001.

In matter number C22/2000, the applicants seek writs of prohibition, mandamus and certiorari against Justice Sundberg and Dr McBain. The applicants seek declarations that:

section 8 of the ITA is not inconsistent with s22 of the SDA;

all sections of the ITA set out in the schedule to the reasons for judgment of Justice Sundberg are not inconsistent, pursuant to s109 of the Constitution, with s22 of the SDA;

to the extent that s22(1) of the SDA would apply to the treatment procedure referred to in s8 of the ITA, s22(1) is not a valid law of the Commonwealth;

section 32 of the SDA applies to services provided pursuant to the ITA;

section 32 of the SDA applies to services provided pursuant to the ITA in circumstances where the treatment procedure involves the removal of an ovum (or ova) from a single woman, the fertilisation of the ovum (or ova) with donor sperm in vitro, and the transfer of the embryo into the single woman;

section 7B of the SDA otherwise applies to s8, and all other sections, of the ITA set out in the schedule to the reasons for judgment of Justice Sundberg;

infertility is not a ground of discrimination under the SDA;

infertility is not a ground of discrimination under the Convention on the Elimination of All Forms of Discrimination Against Women 1979;

the Constitution provides no head of power for the Commonwealth regulation of in vitro fertilisation procedures and s22 of the SDA cannot be used to regulate the provision of such procedures;

the Guiding Principles in s5 of the TA are paramount in the interpretation of that Act and s8 of the ITA must be read subject to those Principles;

the domestic law of Australia, and international law, provides that the best interests of the child shall be paramount and both the ITA and SDA must be read subject to this principle of law;

the domestic law of Australia, and international law, provides that the family, not a single person, is the fundamental group of society and the ITA and SDEA must be interpreted subject to this principle of law; and

the domestic law of Australia, and international law, provides that a child has the right to be born into a family and to be raised by its mother and father, and to know it parents and the ITA and SDA must be interpreted subject to this principle of law.

In matter C6/2001, the applicants seek writs of prohibition, mandamus and certiorari against Justice Sundberg and Dr McBain for the following declarations:

section 8 of the ITA is not inconsistent with s22 of the SDA;

all sections of the ITA set out in the schedule to the reasons for judgment of Justice Sundberg are not inconsistent, pursuant to s109 of the Constitution, with s22 of the SDA;

section 32 of the SDA applies to services provided pursuant to the ITA; and

section 32 of the SDA applies to services provided pursuant to the ITA in circumstances where the treatment procedure involves the removal of an ovum (or ova) from a single woman, the fertilisation of the ovum (or ova) with donor sperm in vitro, and the transfer of the embryo into the single woman.

ROYAL BOTANIC GARDENS AND DOMAIN TRUST v. SOUTH SYDNEY CITY COUNCIL (S263/2000)

Court appealed from: New South Wales Court of Appeal

Date of judgment: 22 December 1999 and 31 August 2000

Date of grant of special leave: 13 October 2000

The central issue in this appeal is the construction and interpretation of clause 4(b) of a lease dated 15 May 1976 between the Trustees of the Domain ("the lessor") and the Sydney City Council ("the lessee"). The present appellant and respondent are the respective successors in title to the original parties to the lease.

Clause 4(b) of the lease confers a power on the lessor every three years to determine the yearly rent to be payable by the lessee during the following three year period. That grant of power is followed by a number of provisos. The parties are in dispute about the rent payable.

In 1955 the lessee proposed the construction of a car parking station in the Sydney Domain. There followed negotiations involving the lessee, the Department of Agriculture and the lessor. In these negotiations it was contemplated that there would be a fifty year lease, with rent payable by the lessee at 1000 pounds per annum, subject to periodic review. The car parking station and footway were constructed and opened on 8 April 1958 and the lessee commenced paying rent at ,1,000 per annum from 1 May 1958.

In 1957 it was decided that special legislation was needed in order to grant the lease. The necessary statutory power to enter the lease was conferred on the lessor by the Domain Leasing Act 1961 (NSW) ("the Act"). Section 3 of the Act empowered the lessor to lease the carpark to the lessee with the consent of the Minister for Lands "for such terms or period, at such rental and subject to such covenants and conditions as the trustees, with the approval of the Minister for Lands may determine". Section 4 of the Act validated any lease which had already been granted. The rent was increased steadily until 1976 when it reached $4500 per annum and on each occasion the rent was explained as related to increased costs.

The formal lease executed in May 1976 included clause 4(b)(iv) which provided that in making a determination of rent the lessor "may have regard to additional costs and expenses which they may incur in regard to the surface of the Domain above or in the vicinity of the parking station and the footway and which arise out of the construction and maintenance of the parking station by the Lessee". This provision differed in certain respects from what had been proposed in correspondence in 1956.

The rent was increased on this basis until 1988 when it was increased to $50,000 per annum. From 1988 rent of that order was demanded and paid. In the period from 1996 to 1997 the rent was $600,000 per annum.

The lessee commenced proceedings claiming that the determinations of rent were invalid. Recovery of alleged overpayments of rent was also sought. The lessee's case on construction was that in making its determination the lessor was permitted to have regard to the factors specified in clause 4(b)(iv) and no other factors. The proceedings were dismissed. The primary judge held that, on the proper construction of the lease, the lessor was entitled to charge a "fair and reasonable rent".

The lessee appealed. The appeal was allowed, Spigelman CJ holding (inter alia) that although the lease had not been executed until 1976, it was the intention of the parties that it should contain the basic terms and conditions as they had been negotiated twenty years before. The Court set aside the orders below and decreed specific performance of the parties' agreement.

The respondent to the appeal has filed a notice of contention, advancing the grounds that the language of the lease was not ambiguous. Alternatively, irrespective of whether the language used was ambiguous, the surrounding circumstances were open to be used as an aid to construction.

The grounds of appeal include:

Subclause 4(1) of the lease dated 15th May 1976 provided that the lease "shall for the purpose of determining the rights and obligations of the parties be construed as if it had been executed on (1 May 1958). Spigelman CJ erred in not accepting that subclause 4(1) precluded reference to surrounding circumstances during the period between May 1958 and May 1976;

Spigelman CJ erred in concluding that subclause 4(1) reflected an intention of the parties that the deed of lease should continue the basic terms and conditions as they had been negotiated 20 years before; and

Spigelman CJ erred in not treating conduct post 1 May 1958 as post contractual and thereby inadmissible on construction.

PASINI v. UNITED MEXICAN STATES & ORS (M39/2001)

Court appealed from: Full Federal Court of Australia

Date of judgment: 18 April 2001

Date referred to a Full Court of the High Court: 22 June 2001

The applicant (Pasini) is a citizen of Mexico. He arrived in Australia in 1997. His brother in law (Cabal) had arrived here in 1996. A series of warrants was issued in Mexico between 1994 and 1998 for the arrest of Pasini and Cabal. The charges brought against Cabal alleged, inter alia, that he had misused his position as president of a Mexican bank (Banco Union), and his position as a member of the "High Credit Committee" of Banco Union, to authorise loans to companies whose solvency "was questionable". Pasini was alleged to have assisted Cabal to commit three offences which ultimately defrauded Banco Union.

In November 1998 Pasini and Cabal were arrested by the Australian Federal Police. Mexico sought their extradition from Australia to Mexico. An extradition hearing under s19 of the Extradition Act 1988 (Cth) was conducted before Lisa Hannan M. (the second respondent). In December 1999 the Magistrate ordered that they were both eligible for surrender within the meaning of s19. Both applied to the Federal Court for review of that decision pursuant to s21 of the Act. They challenged the constitutional validity of s21 of the Act. They acknowledged that the proceedings before the magistrate are administrative proceedings in which the magistrate acts as a persona designata. They submitted that the position of the Court in reviewing the decision of the magistrate under s21 could not be distinguished from the powers exercised by the magistrate under s19 and thus the conferral of administrative power, rather than judicial power, on the Federal Court was unconstitutional. They also sought to tender additional evidence before French J, which he declined to accept. French J did so on the basis that under the Act evidence could be adduced to establish an extradition objection, but not to establish that the person had not committed the offences alleged. French J dismissed their application. The Full Court dismissed their appeal.

Cabal and Pasini applied for special leave to appeal. On 22 June 2001 the Court (Gummow, Kirby & Callinan JJ) directed that the application be referred to the Full Bench and that the matter be ready to be argued as if on an appeal. On 2 August 2001, Cabal filed a Notice of Discontinuance in respect of his participation in the application for special leave to appeal.

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

Whether s21 of the Extradition Act 1988 (Cth) represents an invalid conferral of administrative power on the Federal Court of Australia, that s21 is not severable from the remainder of the Act, and that the Act is therefore not a valid law; and

the extent to which (if at all) a person subject to extradition proceedings is limited to adducing evidence in support of their contention that an extradition objection exists or that the extradition proceedings are an abuse of process, where the evidence sought to be adduced also tends to show that the person is not guilty of the offences alleged.

WILSON v. ANDERSON & ORS (S101/2000)

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

Date of judgment: 5 April 2000

Date referred to Full Bench: 13 October 2000

The applicant is a lessee under Western Lands Lease No 7951 ("the Lease") which was executed under the Western Lands Act 1901 (NSW) ("the WLA") in 1955 and transferred to the applicant in 1984. The lease was granted in perpetuity, subject to the provisions of the WLA and the regulations.

The first respondent made an application on behalf of the Euahlay – I Dixon Clan for a determination of native title in respect of land in the Western Division of New South Wales. This land is in the far north of the State, approximately thirty kilometres south of the Queensland border. The first respondent is a claimant under the Native Title Act 1993 (Cth) ("the Native Title Claim"). The land, the subject of the lease, is subject to the Native Title Claim. There are 43 other holders of similar leases which are also subject to the Native Title Claim.

The claim for the determination of native title has not yet been heard by the Federal Court. On 29 April 1999 Beaumont J ordered by consent that there be no mediation or further mediation in respect of the Native Title Claim and that the questions set out in the stated case be referred to the Full Federal Court.

The applicant contends that the existence of his lease provides a complete answer to the Native Title Claim. His argument is that native title cannot exist over the land in question because the effect of the WLA, the regulations made under the WLA, and the terms of the lease itself, is to extinguish or suspend any native title rights which involve presence on the land by the holder of any native title. The applicant argued before the Full Court that the reasoning of the majority in The Wik Peoples v. The State of Queensland (1996) 187 CLR 1 ought to be distinguished and not followed as the Queensland statutes considered in Wik differed from the WLA in material respects. The Full Court did not accept this submission.

The questions before the Full Court were as follows:

"(a) By virtue only of:

(i) the WLA; and

(ii) the regulations thereunder, as in force at the time of the grant of the Lease; did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

(b) If the answer to the question (a) is 'No', by virtue of:

(i) the WLA; and

(iv) the regulations thereunder, as in force at the time of the grant of the Lease; and

(v) one or more of the terms and conditions of the Lease; did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

(c) If the answer to question (a) or question (b) is 'Yes', were any native title rights the exercise of which involved the presence on the leased land by the holders of the native title:

(i) extinguished by the grant of the Lease; or alternatively

(ii) suspended upon the grant of the Lease for the duration of the Lease?"

The Full Court held (by majority) that it was unnecessary to answer questions (a) and (b) in the stated case and that it was strictly unnecessary to answer question (c), but that in any event question (c) could not be answered on the material presently before the Court. The Court noted that although the Judges differed in the answers given, they all followed the majority opinions in Wik.

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

The questions that arise on this application are whether the Federal Court erred in law in not answering the questions in the stated case as follows:

Either question (a) or question (b):

1. "Yes", or alternatively;

2. "Yes except over any 'roads' or 'tracks', or 'reserves' available for use by the public, that existed at the commencement of the Lease".

Question (c):

"Native title rights involving access to the land the subject of the Lease were extinguished upon commencement of the Lease in all areas in respect of which question (a) or question (b) is answered 'Yes'".

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v. BHARDWAJ (S37/2001)

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

Date of Judgment: 15 June 2000

Date of grant of special leave: 20 February 2001

The respondent is an Indian citizen who arrived in Australia on 4 July 1997 holding a student visa. On 6 August 1998 that visa was cancelled by a delegate of the appellant pursuant to s116 of the Migration Act 1958 (Cth) ("the Act"). On 21 August 1998 the respondent applied to the Immigration Review Tribunal ("the IRT") for a review of that decision. On 2 September 1998 the IRT wrote to both the respondent and his migration agent, advising them that the hearing was scheduled for 15 September 1998 at 9.30 am.

A late application for an adjournment of the hearing was received, but overlooked by the IRT. Neither the respondent nor his migration agent attended the IRT on 15 September 1998. On 16 September 1998 the IRT affirmed the decision to cancel the respondent's student visa. A copy of that decision ("the September decision") was sent to both the respondent and his migration agent. Following representations made by the migration agent (concerning the overlooked request for an adjournment), the IRT agreed to reconsider the respondent's application. After a subsequent hearing, the IRT revoked the cancellation of the respondent's student visa on 22 October 1998 ("the October decision").

The appellant filed an application for an order of review of the October decision in the Federal Court. Justice Madgwick dismissed that application, finding that the IRT was not functus officio after the publication of the September decision. His Honour further found that even if it was, the Court would exercise its discretion and refuse to set aside the October decision.

On appeal, the appellant submitted that the IRT was functus officio once the September decision was made and that the October decision should be set aside. The appellant further submitted that the IRT's failure to consider the request for an adjournment did not amount to a failure to comply with s360 of the Act. That section requires the IRT, in circumstances where it cannot decide a matter favourably on the papers, to give an applicant an opportunity to appear before it.

The majority of the Full Federal Court (Beaumont and Carr JJ) found that the IRT had the power to revoke its September decision, or at very least to reconsider the exercise of its review power. Justice Lehane however concluded that Part 8 of the Act did not allow the IRT to revoke a decision once made. His Honour further held that s33(1) of the Acts Interpretation Act 1901 ("the AIA") was inapplicable since a "contrary intention" appeared.

The grounds of appeal include:

That the majority of the Full Court of the Federal Court erred;

in finding, if their Honours so found, that the decision of the IRT dated 16 September 1998 was "invalid" or "void";

in finding, if their Honours so found, that the IRT could ignore its decision dated 16 September 1998 and proceed to reconsider the respondent's application for review; and

in failing to find that the provisions of the Act manifest a contrary intention for the purposes of s33(1) of the AIA in relation to the duties and functions of the IRT.

Published in Case Summaries

Thursday, 01 July 2010 13:35

Full Court Matters - October 2001

(Other than Applications for Special Leave to Appeal)

COMMENCING 2 OCTOBER 2001

GERSTEN v. MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS (S177/2000)

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

Date of judgment: 5 July 2000

Date referred to the Full Court by Gaudron J: 16 May 2001

RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; EX PARTE GERSTEN (S78/2001)

Date referred to the Full Court by Gaudron J: 16 May 2001

The Applicant is an American citizen and former Florida State politician who arrived in Australia in September 1993. In October 1993 he applied for refugee status. The Applicant claimed that he feared persecution in the USA for reason of his political opinion. Specifically he claimed that an investigation into his stolen car in 1992 was being used by the then State Attorney-General, Ms Janet Reno, (and others) to damage him politically. The car itself was later recovered in the possession of two convicted felons, one of whom was a prostitute. They claimed that the Applicant had solicited the prostitute for sex and had purchased crack cocaine at a crack-house. Based on their statements, the authorities claimed that the Applicant's car was stolen while he was visiting a crack-house. This account differed from what the Applicant said had happened to his car.

In the investigation that followed, the Applicant was subpoenaed to give evidence. He answered the questions selectively and he claimed that the investigation itself was motivated by bad faith. Enforcement proceedings were then commenced in the Eleventh Judicial Circuit, where the Applicant again refused to answer questions. As a result, Judge Dean jailed him for 3 weeks for civil contempt. An appeal against her Honour's ruling was ultimately unsuccessful, as was a later appeal to the United States District Court. In the meantime, however, the Applicant, who had been released on bail, left the jurisdiction.
In relation to S177/2000

In December 1993 a delegate refused the Applicant's application for refugee status. On 8 October 1998 the Refugee Review Tribunal ("RRT") did likewise and Justice Katz dismissed an application for judicial review on 17 December 1999. On 5 July 2000 the Full Federal Court (Hill, Mathews and Lindgren JJ) unanimously dismissed the Applicant's appeal. Their Honours held that the RRT had not applied the wrong test for causation of persecution, nor had it failed to make a material finding concerning the existence of the alleged political vendetta. Their Honours also rejected the submission that the RRT failed to consider whether the Applicant's treatment while in jail was persecutory. The Full Federal Court further found that the RRT had not erred in considering what constitutes persecution and it also rejected the submission that Justice Katz was biased.

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

The causation test for whether the Applicant was imprisoned for reasons of his political opinion was incorrectly applied by the RRT and that incorrect reasoning process has been upheld by the court below;

The RRT erred in applying an incorrect test of what constituted persecution, and that approach was upheld by the court below;

The RRT failed to set out findings on material questions of fact and failed to set out reasons for the decision, in the sense that no reasons were given for ignoring certain material facts, as it was required to do, which approach was upheld by the court below; and

The court below erred in finding that there was no actual bias by the Judge at first instance.

In relation to S78/2001

On 20 April 2001 the Applicant also filed a draft order nisi, seeking writs of Certiorari, Prohibition and Mandamus against both the RRT and the Minister for Immigration and Multicultural Affairs. That application seeks to challenge the RRT's decision on the basis that it involved an exercise of power so unreasonable or illogical that it is said to have been made in excess of jurisdiction. The Applicant is also challenging the RRT's failure to consider that his jailing for civil contempt was a result of his political opinion, not simply because he had refused to answer questions in Judge Dean's Court.

CONWAY v. THE QUEEN (C11/2001)

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

Date of Judgment: 11 April 2000

Date special leave granted: 1 June 2001

The appellant was charged with murdering his wife on 3 May 1997. It was the Crown case that the appellant and co-accused (with whom the appellant was having a relationship), acting in pre-concert, persuaded the Crown witnesses Williams and Steer to inject the deceased with a lethal dose of heroin.

Those witnesses, Steer and Williams confessed to having carried out the murder of the deceased and that they had done so at the request of Conway and his co-accused. Part of the Crown case related to evidence of what became known as "the coffee incident" in which the deceased complained to a number of people that, one morning, the appellant had attempted to and had admitted to her that he had put something in her coffee. At trial, the Crown contended that the inference to be drawn from this evidence was that the substance was heroin. The Crown contended that it was a preparatory act to murder the deceased.

The appellant argued that the evidence of the "coffee incident" should have been excluded because it was propensity or similar fact evidence and that the evidence of a neighbour of the deceased and other persons to whom the deceased had spoken about the coffee incident was hearsay and should not have been admitted. He also contended that the deceased's version of the coffee incident as set out in her diary entry was hearsay and should not have been admitted.

Tapes were tendered by the Crown to show the nature of the relationship between the co-accused and the deceased, the co-accused and the appellant and also to show that the co-accused and the appellant in their dealing with the deceased had acted in tandem in a way that would cause her harm in certain custody proceedings. The Crown case also relied heavily on the evidence of the accomplices Steer and Williams.

The appeal to the Full Court of the Federal Court was dismissed.

The grounds of appeal are:

Having determined that the learned Trial Judge at first instance was obligated to direct the jury to consider corroborative evidence 'separately in the case of each accused', the Full Court erred in ruling that there was no reason in principle why evidence not otherwise corroborative in the case of the appellant but admissible under the 'co-conspirator rules', could not also be capable of constituting corroboration of the accomplice's evidence in his case; and

The Full Court erred in concluding that the items of evidence wrongly left to the jury as corroborative of the case against the appellant did not lead to a miscarriage of justice.

BURKE & ANOR v. LFOT PTY LIMITED & ORS (S130/2001)

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

Date of Judgment: 18 August 2000

Date of grant of special leave: 1 June 2001

In July 1994 contracts were exchanged for the sale of a property consisting of seven tenanted shops at Leichhardt. The vendor was the first respondent ("LFOT"). Two of its directors were the second respondent ("Mr Tressider") and the third respondent ("Mr Glew"). The purchaser was the second appellant ("Hanave"). The first appellant ("Mr Burke") was a director of Hanave and acted as its solicitor. A major tenant of the property was Barbara's Storehouse which occupied two of the shops and contributed about a third of the total rental income.

Barbara's Storehouse was in default of prompt rental payments from an early stage. In September 1995 Hanave commenced proceedings in the Federal Court against LFOT and Messrs Tressider and Glew. Hanave alleged breaches of s52 of the Trade Practices Act 1974 (Cth) ("TPA"), namely misrepresentations concerning the quality of Barbara's Storehouse as a tenant. The respondents cross-claimed against Mr Burke alleging that, as solicitor for Hanave, he negligently failed to advise Hanave to make proper inquiries as to the financial position of tenants.

The primary judge, Moore J, dismissed Hanave's application. Hanave appealed to the Full Court. The appeal was allowed. LFOT and Mr Tressider and Mr Glew sought special leave to appeal to the High Court. This was refused on 10 December 1999.

On 11 November 1999 Moore J delivered a further judgment holding, inter alia, that Mr Burke had been negligent and was liable in equity to make contribution. His Honour assessed damages in the sum of $750,000 and ordered that LFOT and Mr Tressider pay that amount to Hanave and that, upon satisfaction of that order, Mr Burke make contribution to LFOT and Mr Tressider of half that amount.

Mr Burke and Hanave appealed to the Full Court against the order that Mr Burke make contribution to LFOT and Mr Tressider. The Full Court held – Lee J dissenting – that LFOT and Mr Tressider were entitled to contribution at law. The majority considered the principles and reasoning set out in Albion Insurance Company Ltd v. Government Insurance Office of New South Wales (1969) 121 CLR 342 to be applicable to the case and that contribution was available where two or more persons who were each liable in respect of the same debt ought to make good the same loss sustained by a third party in circumstances where discharge of the obligation by one relieved the other.

The appellants are not seeking any orders against Mr Glew.

The grounds of appeal are:

The Full Federal Court (Lee J dissenting) was in error in holding that the general law of contribution applied to permit recovery of contribution from the first appellant by the first respondent and the second respondent arising out of a judgment that the second respondent had contravened s52 of the TPA and the first respondent was a person involved in the contravention pursuant to s75B;

The court was in error in holding that the first appellant who was found to have been negligent and in breach of his retainer as a solicitor to his client was under a common liability to the client with the first and second respondents who had contravened s52 of the TPA such as to give rise to a right of contribution in the first and second respondents as against the first appellant;

The court was in error in not finding that the contribution to apply between persons who have concurrent liabilities to a third party there must be a common liability arising out of a common design to achieve a common end;

The court should have found that the conduct of the respondents being proscribed by s52 of the TPA would entitle the first appellant to an indemnity from the first and second respondents and thus was a bar to making any order for contribution;

The court should have found that as the first and second respondents intended to mislead the second appellant through the first appellant that the respective liabilities of the first appellant and the first and second respondents were not in respect of a common obligation and that there was no equality between them such as to give rise to a contribution; and

If the first appellant was liable to make contribution to the first and second respondents the court erred in not apportioning the liability as to one-third to the first appellant and a further third to each of the first and second respondents.

BIENSTEIN v. BIENSTEIN (M140/2000)

Court appealed from: Single Justice, High Court of Australia

Date of judgment: 1 December 2000

The parties were husband and wife. There were various proceedings in the Family Court of Australia including a claim for maintenance in respect of an adult child of the marriage.

The wife filed an application for removal of proceedings pending in the Family Court, pursuant to s40 of the Judiciary Act 1903 (Cth). That application for removal (M133/00) came before Justice Hayne on 1 December 2001. The wife appeared in person. The husband did not appear to make any submissions. Justice Hayne refused the application for removal.

The wife filed a notice of appeal pursuant to s34(1) of the Judiciary Act 1903 (Cth), contending that s34(2) of the Judiciary Act was not applicable and that leave to appeal is not required.

The grounds set out in that notice of appeal include:

Hayne J failed to properly consider the mind of the fair-minded lay observer who, regardless of His Honour's own views, might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide; and

Hayne J's reasons for refusing to disqualify himself are insufficient.

IN THE MATTER OF AN APPLICATION BY HELEN BIENSTEIN FOR LEAVE TO ISSUE PROCESS (C4/2001)

Mrs Bienstein sought to issue a writ of summons, naming the Prime Minister as defendant. On 22 February 2001, Justice Gaudron directed, pursuant to order 58 rule 4(3) of the High Court Rules, that the Registrar not issue the writ without the leave of a Justice first had and obtained.

Order 58 rule 4(3) of the High Court Rules provides as follows:

"If the writ, process or commission appears to a Registrar on its face to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the Registrar shall seek the direction of a Justice who may direct him to issue it or to refuse to issue it without the leave of a Justice first had and obtained by the party seeking to issue it."

Mrs Bienstein did not make application in the usual way to seek leave to issue the proceeding, but filed a notice of appeal from the direction of Justice Gaudron, contending that she was entitled to do so pursuant to s34(1) of the Judiciary Act 1903 (Cth).

The grounds as set out in her notice of appeal include:

Gaudron J's direction has the effect finally, summarily, without hearing and without published reason of denying my substantive Common Law Right to equal access to Justice, free of any "special" conditions or obstacles;

There is no source of legal power to support the relevant Rule, and there is no authority identifying any such power; and

The Rule is unnecessary because of the existence of more equitable means for dealing with actions that are alleged to be vexatious, frivolous or an abuse of process.

MUIN (AS THE REPRESENTATIVE OF THE PERSONS LISTED IN THE SCHEDULE) v. REFUGEE REVIEW TRIBUNAL & ORS (S36/1999)

LIE (AS THE REPRESENTATIVE OF THE PERSONS LISTED IN THE SCHEDULE) v. REFUGEE REVIEW TRIBUNAL & ORS (S89/1999)

Questions Referred: 3 November 2000 by Gaudron J

These proceedings relate to things done and decisions made during the course of the defendants' determination of the refugee status of the plaintiffs, Muin and Lie, with a view to the grant of, or refusal to grant, a protection visa under the Migration Act 1958 (Cth) ("the Act"). The issues raised depend upon the operation of the provisions of the Act in force at the date of the decision of the first defendant in relation to each of the plaintiffs, namely 25 November 1998 and 6 January 1998 respectively. The Act was relevantly identical at each date.

In relation to S36/1999

On about 8 June 1996 Muin arrived in Australia. He is an Indonesian national of Chinese ethnicity. On 26 August 1996 Muin applied for a protection visa within the class of visas identified by s36 of the Act. On 9 March 1998 a delegate of the Minister for Immigration and Multicultural Affairs, after considering the application for a visa, was not satisfied that Muin was a person to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees as Amended by the Protocol Relating to Refugees done at New York on 31 January 1967 and accordingly refused to grant the visa.

On 26 March 1998 Muin made an application for review of the delegate's decision to the Refugee Review Tribunal ("the Tribunal"). On 1 October 1998 the Principal Member of the Tribunal gave a written direction about who was to constitute the Tribunal for the purpose of the review sought by Muin in accordance with s421(2) of the Act. On 13 October 1998 a review on the papers was completed by the Tribunal member purportedly pursuant to s424(1) of the Act. A letter was written to Muin dated 13 October 1998 advising him that the Tribunal was not prepared to make the decision most favourable to him on the review on the papers. On 18 November 1998 Muin attended a hearing before the Tribunal. On 25 November 1998 the Tribunal decided to affirm the decision of the delegate of the Minister refusing to grant a protection visa.

On 22 March 1999 proceedings were brought in this Court under s75(v) of the Constitution. Muin contends that the Tribunal member took into account material adverse to his case without his knowledge. This deprived him of an opportunity to counter that adverse material by evidence and submissions. This failure to give Muin an opportunity to answer the adverse material was a breach of procedural fairness.

Secondly, Muin argues that the Tribunal member failed to receive or consider relevant material that contained information favourable to his case. Had the Tribunal member properly received and considered this information, Muin would have had better prospects of obtaining a favourable decision. The said failure of the Tribunal member to receive and consider the documents known as the Part B country material was a breach of procedural fairness. This failure to consider relevant material was also a breach of ss418(3) and 424(1) of the Act, making the decision procedurally ultra vires, or, at least, unlawful.

In relation to S89/1999

Lie arrived in Australia on or about 3 January 1997. She is an Indonesian national of Chinese ethnicity. She commenced proceedings in the Court on 10 June 1999. The issues raised are the same as those in Muin, except that there is no allegation that material adverse to the interests of the plaintiff was taken into account without her being given an opportunity to respond to it.

The questions referred in each matter are:

Upon the facts set out in the agreed statement of facts and the inferences, if any, to be drawn from those facts, the following questions are reserved for the consideration of the Full Court.

1. Was there a failure to accord the Plaintiff procedural fairness?

2. Was there a failure to comply with s418 (3) of the Act?

3. Was there a failure to comply with s424 (1) of the Act?

4. If the answer to any of questions 1 to 3 is yes,

(a) Was the decision of the First Defendant to affirm the refusal of the delegate to grant a protection visa for that reason invalid?

(b) What declaratory, injunctive or prerogative writ relief, if any, should be ordered?

5. By whom should the costs of the proceedings in this Court be borne?

LUTON v. LESSELS & ANOR (C40/1995)

Date case stated: 14 March 2001

On 14 March 2001, Justice Callinan stated a case pursuant to s18 of the Judiciary Act 1903 (Cth).

On or about 1 November 1991 Luton and Lessels began to cohabit as if they were husband and wife. This ceased on 1 August 1992. On 15 February 1993 a child was born of the relationship between the two. On 9 July 1993 Lessels applied to the second respondent for assessment of and registration of a Child Support Arrangement under the Child Support (Registration and Collection) Act 1988 (Cth) ("the Registration Act"). On 7 August 1993 the Registrar made an assessment of the liability of Luton to pay child support. The Registrar registered the registrable maintenance liability which arose under that assessment pursuant to s24A of the Registration Act.

On or about 18 October 1994, pursuant to s75 of the Child Support (Assessment) Act 1988 (Cth) ("the Assessment Act"), the Registrar amended the assessment so as to vary the commencement date of the period in respect of which child support was payable by Luton from 12 June 1993 to 9 July 1993. The Registrar made corresponding variations entered into the Child Support Register.

On 10 December 1993, Lessels made an application under s98B of the Assessment Act so as to increase the rate of child support payable on the ground that the income, earning capacity, property and financial resources of Luton were not properly reflected in the assessment. On 3 February 1994, pursuant to s98G of the Assessment Act, Luton lodged with the Registrar a reply to Lessels' application, and by application under s98B sought a reduction in the rate of child support payable on a number of the grounds set out in s117 of the Assessment Act.

On 14 April 1994, a Child Support Review Officer (a delegate of the Registrar), made an assessment pursuant to s98D of the Assessment Act in the following terms:

"There should be a departure from the child support assessment made for the 1993/1994 child support year. For the period 1 January 1994 to 30 June 1994 the child support income of Mr Luton should be $37,188. For the period 1 July 1994 to 30 June 1995 the child support income of Mr Luton should be $38,489."

On 28 April 1994, the Registrar entered the particulars of this assessment on the Child Support Register, pursuant to s37A of the Registration Act. In relation to the subsequent child support years, pursuant to s31(2)(b) of the Assessment Act, the Registrar has assessed the annual rate of child support payable by Luton.

The Registrar has enforced collection of the amounts payable under the various assessments by means of: issuing notices to Luton's employers to make deductions from Luton's salary (under s46 of the Registration Act), pursuant to s72 of the Registration Act, applying an amount owing to Luton by the Commonwealth under the Income Tax Assessment Act 1936 (Cth) against the amount of the debt due to the Commonwealth by Luton under the Registration Act. Luton's employers have made periodic deductions from his salary pursuant to s46 of the Registration Act and have paid the amounts deducted to the Registrar in compliance with s47 of that Act.

The questions stated for the consideration of the Full Court are:

1. Is the scheme established by the Child Support (Registration and Collection) Act 1988 (Cth) and the Child Support (Assessment) Act 1988 (Cth) for the collection and payment by the respondent of money otherwise payable to or receivable by the plaintiff a tax?

2. If "yes" to question 1 are the Acts invalid as being contrary to s55 of the Constitution?

3. Do the Acts in purporting to authorise the second respondent to make the assessments and the determinations, to enter the particulars, to issue the notices, and to collect and apply payments in the way in which the second respondent did involve the purported exercise of judicial power by the second respondent contrary to Ch III of the Constitution?

4. What orders for the further disposition of the action should be made in the light of the answers to these questions.

* * * * * * * * *

SHORT PARTICULARS OF CASES

PERTH CIRCUIT SITTINGS

COMMENCING MONDAY, 22 OCTOBER 2001

APPEALS

WOODS v. MULTI-SPORT HOLDINGS PTY LTD (P93/2000)

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

Date of Judgment: 1 March 2000

Date of grant of Special Leave: 27 October 2000

This appeal results from an injury sustained by the appellant on 12 March 1996 when he was playing indoor cricket. The appellant was batting and hit a ball which in some fashion ricocheted off his bat and struck him in the right eye and, as a result, was almost totally blinded in that eye. The appellant brought an action for damages against the respondent seeking damages for negligence, breach of contract and breach of statutory duty under the Occupiers Liability Act. The appellant argued before the Full Court that the learned trial judge erred in holding that the respondent did not breach its duty of care to the appellant by failing to provide helmets to protect players from the risk of serious eye injury. He also complained of a failure to warn of the risk of serious eye injury arising out of the playing of indoor cricket. The trial judge had found that such a warning was not required because there was no evidence that the respondent knew of the danger of eye injury.

The Full Court found no error in the trial judge's approach to the resolution of the issues of fact and upheld her finding that there was no breach of either a common law duty or a statutory duty and there was no obligation reasonably to be imposed to provide a protective helmet or to warn the appellant of the risk of eye injury.

The grounds of appeal include:

When considering whether the rise of serious eye injury was obvious to the Appellant, the Full Court ought to have considered whether the Appellant had a full appreciation of not only the nature of the risk, but also the extent of the risk. In this instance the Full Court only directed it's attention to the Appellant's appreciation of the nature of the risk;

Having accepted that the Appellant was a contractual entrant, the Full Court should have had regard to this fact when determining whether it was reasonable for the Respondent to warn the Appellant of the risk of serious eye injury;

The Full Court ought to have found that the scope of the duty of care owed by the Respondent to the Appellant extended to the provision of helmets to protect the players from serious eye injury; and

The Full Court erred in finding that the rules of Indoor Cricket modified and/or restricted the duty of care owed by the Respondent.

MOLTONI CORPORATION PTY LTD v. QBE INSURANCE LTD (P92/2000)

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

Date of Judgment: 3 April 2000

Date of grant of Special Leave: 27 October 2000

On 7 May 1999, Mr Symons obtained a judgment against the appellant (then defendant) for over $300,000 for damages in respect of a back injury sustained by him on 7 November 1992 whilst he was employed by the appellant as a demolition worker at the Sheraton Hotel Perth.

At the hearing of the original action the appellant claimed a declaration that the respondent (then the third party), was required to indemnify it under a policy of insurance. The respondent denied liability primarily on grounds that the appellant had not given notice of Mr Symons' injury to it until 6 April 1994, approximately 17 months after the injury. The respondent claimed that, due to the late notice, it had suffered prejudice because it had been unable to carry out any investigation of the matter or arrange for the treatment of Mr Symons' injury before 6 April 1994.

At trial, the respondent was found liable to indemnify the appellant for the full amount of the judgment obtained by Mr Symons and costs. It was common ground that, but for s54(1) of the Insurance Contracts Act 1984 (Cth), the respondent would have been entitled to refuse to indemnify the appellant for breach of the term of the policy requiring notice of an accident to be given as soon as practicable. The respondent appealed to the Full Court who, by a majority (Murray J dissenting), allowed the appeal.

The grounds of appeal are:

The Full Court erred in law in that when determining whether for the purposes of s.54 of the Insurance Contacts Act 1984 (Cth) the respondent insurer's interests were prejudiced by the appellant's breach of the notice of injury term of the insurance contract it should have held that:

a 'lost opportunity' to take action in response to notice of any injury (to effect medical and rehabilitation reviews of the plaintiff) was not prejudice, or the breach did not cause prejudice, if the respondent failed to prove on the balance of probabilities that it would have taken that action and that it was insufficient that as a probability or possibility the respondent might have taken that action;

the finding of the trial judge that the plaintiff's ongoing incapacity was caused by his injury on 7 November 1992 and not by an incident in 1993 was a proven fact that was required to be (and had been) decided on the balance of probabilities, rather than a probability or possibility to be taken into account in assessing the value of a 'lost opportunity'.

The Full Court erred in law in that it should have held that the Respondent was precluded from challenging on appeal the findings of fact concerning the cause and course of the plaintiff's incapacity because the findings were made in the action between the plaintiff and the appellant, the challenge relied on evidence called by the respondent in the action, and the respondent had not made the plaintiff a party to the appeal and had not appealed against findings in his favour;

The Full Court erred in law in that it should have held that the trial judge had given sufficient reasons for preferring the evidence of the plaintiff's medical witnesses to those called by the respondent in the plaintiff's action.

The respondent seeks special leave to cross-appeal in relation to the appellant's first ground of appeal and also from that part of the judgment of the Full Court which held that the subject contract of insurance was not one contemplated by s.9(1)(e) of the Insurance Contracts Act 1984 (Cth).

GOLDSMITH v SANDILANDS & ORS (P91/2000)

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

Date of Judgment: 17 February 2000

Date of grant of Special Leave: 27 October 2000

The appellant was the plaintiff in proceedings in the District Court of Western Australia. He claimed that, while serving as a police officer, he sustained injuries whilst involved in a high speed police pursuit. There was no collision, it being alleged that the appellant was thrown around as the front seat passenger in the police vehicle. The first respondent was the driver of the pursuit vehicle and the fourth respondent was sued as the insurer of the unidentified driver of the vehicle being pursued.

At trial, the respondents raised a number of defences including that the appellant had not suffered injury during the pursuit, that the appellant had sustained the injuries days before playing indoor cricket, and that his injuries were attributable to a motor vehicle accident in April of 1995. The Commissioner in the District Court dismissed the appellant's claim and made findings adverse to his credibility and held that the appellant had injured himself playing indoor cricket. The Commissioner based his findings that the appellant had injured himself playing indoor cricket on the first respondent's evidence that the appellant told him that he had injured himself at indoor cricket when the first respondent collected him from cricket, that two fellow police officers gave evidence to say that the appellant had told them separately he had injured himself playing indoor cricket and the evidence of Dr Silver who concluded that the appellant's injuries were more likely to be the result of playing indoor cricket than the police pursuit.

During the adjournment and after the appellant had closed his case, it became apparent to the appellant that the description of the location of the street where the first respondent alleged collecting the appellant from indoor cricket did not match the actual location of the arena. During the adjournment the appellant visited the two locations and took photos which counsel for the appellant unsuccessfully sought to put to the first respondent in cross-examination.

On appeal to the Full Court of the Supreme Court of Western Australia the Court found that the Commissioner had erred in refusing to exercise his discretion to allow the appellant to call evidence in respect of these matters and that the Commissioner had erred in refusing to allow evidence of a physiotherapist to be called to exclude any suggestion that the accident of April 1995 was relevant. Although the Full Court found a number of the bases upon which the Commissioner had relied to make the findings of credibility adverse to the appellant were not open to him, it upheld the majority of the bases for assessing the appellant's credibility. The Full Court also held that there was other evidence upon which it was open to the Commissioner to find that the appellant had injured himself whilst playing indoor cricket.

The grounds of appeal include:

Having found the Commissioner erred in:

Failing to allow the Appellant to admit evidence in rebuttal or to reopen his case in respect of the location of Strikers Belmont;

Failing to allow the Appellant to call the evidence of his physiotherapist in respect of the accident on 10 April 1995;

8 of the 16 points relied upon by the Commissioner in supporting his findings of credibility adverse to the Appellant were either partially or wholly not open to the learned Commissioner;

The Full Court of the Supreme Court of Western Australia erred in concluding the Appellant had not suffered an injustice and that there was sufficient foundation for the Commissioner's decision.

Having regard to the evidence overall the Full Court of Western Australia erred in failing to conclude an injustice had occurred and that sufficient doubt existed as to the appropriateness of the Commissioner's findings.

Published in Case Summaries

Thursday, 01 July 2010 13:25

Full Court Matters - November 2001

(Other than Applications for Special Leave to Appeal)

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v KHAWAR & ORS (S128/2001)

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

Date of judgment: 23 August 2000

Date of grant of special leave: 1 June 2001

Mrs Khawar ("the Respondent") and her three children are Pakistani citizens who arrived in Australia on 17 June 1997. On 16 September 1997 they applied for Protection Visas. The Respondent claimed that she was the target of domestic violence at the hands of her husband, his brother and to a limited extent, their family. She claimed that she went to the Pakistani police on four occasions and on each occasion the authorities took no action against her husband. On 4 February 1998 a departmental delegate refused her application, as did the Refugee Review Tribunal ("RRT") on 11 January 1999. The RRT found that the conduct that the Respondent feared was not for reasons of her membership of any particular social group, nor was it for any other Convention related reason. It found that the Respondent's problems were related solely to the fact that she married her husband against the wishes of her husband's family.

On 5 November 1999 Branson J set aside the RRT's decision and on 23 August 2000 the Full Federal Court (Mathews and Lindgren JJ, Hill J dissenting) dismissed an appeal by the Minister. The majority found that the critical issue was; "whether the RRT erred in its view that the absence of state protection for any particular group of which Mrs Khawar might have been a member was, as the RRT considered, irrelevant to the causal link demanded by the words 'for reasons of' in the Convention definition of 'refugee'." The majority answered that question affirmatively, firstly by finding that the state's conduct constituted persecution and secondly, by finding that the combination of the husband's conduct and the state's conduct also constituted persecution.

Justice Hill however found that there was no causal link between the persecutory conduct and the Respondent's membership of a social group. This was because mere inaction by a state could not, without more, constitute persecution. As a corollary, his Honour found that the only possible relevant social group, Pakistani women with abusive alcoholic husbands, was defined by reference to the persecutory conduct itself.

The grounds of appeal are:

The majority erred in law in holding that persecution may consist of the effect of the conduct of two or more persons, only one of whom may be moved by a Convention reason.

The majority erred in law in holding that the RRT in the circumstances of the case erred by reaching a conclusion on the question of whether the Respondent's fear of persecution was for reason of her membership of a particular social group without first identifying such a group, if any, of which she was a member.

The majority erred in law by holding that a state's systemic failure to protect the members of a particular social group who were subject to domestic violence could constitute persecution 'by reason of' the victim's membership of the group, even though the perpetrator of the violence was not motivated by a Convention reason to inflict the violence.

The majority erred by holding that the causal nexus required by the words 'by reason of' could be established if domestic violence, perpetrated for a non-Convention reason, was inflicted in the knowledge that state protection would not be provided to the victim by reason of her membership of a particular social group.

The majority ought to have held that the primary judge erred in finding that the RRT had erred in law in the manner comprehended by section 476(1)(e) of the Migration Act 1958.

GERLACH v. CLIFTON BRICKS PTY LIMITED (S43/2001)

Court appealed from: New South Wales Court of Appeal

Date of Judgment: 28 April 2000

Date of grant of special leave: 16 February 2001

The hearing of the appellant's case proceeded before Morrison ADCJ. The appellant was awarded $390,000 damages.

The respondent appealed, challenging not only the trial judge's decision on liability and damages, but also challenging the interlocutory order of Christie DCJ.

The appellant has filed a notice of motion seeking leave to amend the grounds of appeal.

The proposed amended grounds of appeal include:

The Court of Appeal was wrong in setting aside the decision of the District Court under s79A of the District Court Act 1973 to dispense with the jury previously requisitioned in the proceedings;

The Court of Appeal erred in applying a restriction upon the discretion vested in the District Court by s79A as propounded by the Court of Appeal in Pambula Public Hospital v. Herriman (1988) 14 NSWLR 387 and applied in subsequent decisions;

The Court of Appeal ought not to have followed its earlier decision in Pambula, it being wrongly decided, and the discretion of s79A being general and unfettered;

and

The Court of Appeal failed to apply the decision and reasoning of the High Court in Patton v. Buchanan Borehole Collieries Pty Limited (1993) 178 CLR 14 in relation to the discretion conferred by s79A.

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v RAJAMANIKKAM & ANOR (S122/2001)

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

Date of judgment: 3 August 2000

Date of grant of special leave: 1 June 2001

This appeal involves the construction of s.476(1)(g) and s.476(4) of the Migration Act 1958 (Cth) ("the Act").

The Respondents are a retired Sri Lankan doctor who suffers from dementia and his wife. On 24 May 1996 they arrived in Australia and shortly afterwards they lodged combined applications for a Protection Visa. Only Mr Rajamanikkam ("the Respondent husband") made specific claims to be a refugee, with Mrs Rajamanikkam being named as a member of the family unit. The Respondent husband claimed that he feared persecution from both the Sri Lankan authorities and the Liberation Tigers of Tamil Eelam ("LTTE" ). He claimed that the authorities perceived him to be associated with the LTTE. He also claimed that the LTTE perceived him to be a moderate Tamil who had not paid them extortion money.

On 20 March 1997 a departmental delegate refused the Respondents' application, as did the Refugee Review Tribunal ("RRT") on 29 September 1998. The RRT found that the Respondent husband was not a credible witness and it identified eight specific evidentiary inconsistencies which led it to that conclusion.

On 19 November 1999 Einfeld J set aside the RRT's decision and on 3 August 2000 the Full Federal Court (Kiefel, North and Mansfield JJ) unanimously dismissed an appeal by the Minister. Their Honours found that there was no evidence to support the RRT's conclusion in respect of two of the eight evidentiary inconsistencies upon which it had based its adverse credibility finding. Specifically, those inconsistencies related to whether Point Pedro was under government control and whether the Respondent husband was considered a "newcomer" to Trincomalee. Their Honours found that these were critical links in the RRT's overall chain of reasoning in the sense discussed in Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212.

The grounds of appeal are:

The Full Court erred in upholding the decision of the primary Judge setting aside the decision of the RRT on the basis that the ground identified in paragraphs 476(1)(g) and 476(b) of the Act had been made out because:

o two out of eight factors relied upon by the RRT for rejecting the Respondent husband's evidence constituted particular facts for the purposes of paragraph 476(4)(b); and

o those facts were 'critical' in the sense referred to by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357-358.

The Full Court erred in failing to hold that:

o inferences drawn by the RRT in relation to answers given by the Respondent husband in an interview, could not constitute 'particular facts' for the purposes of paragraphs 476(1)(g) and (4)(b) of the Act; and

o the 'no evidence' ground contained in paragraph 476(1)(g) was not available in relation to a decision that the RRT was 'not satisfied' as to the statutory pre-condition for the grant of a Protection Visa.

SHERGOLD v TANNER (M63/01)

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

Date of judgment: 10 October 2000

Date special leave granted: 22 June 2001

This appeal concerns a challenge by the respondent, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s39B of the Judiciary Act 1903 (Cth), to the decision of the appellant to issue two conclusive certificates pursuant to s36(3) and s33A(2) of the Freedom of Information Act 1982 (Cth) (the FOI Act).

The conclusive certificates were issued in respect of certain documents sought under the FOI Act in December 1997 by the respondent from the Department of Workplace Relations and Small Business, now the Department of Employment, Workplace Relations and Small Business (the Department). The appellant is the Secretary of the Department and the delegate of Peter Reith the Minister for Employment, Workplace Relations and Small Business for the purposes of the FOI Act. The respondent is a Member of Parliament who was the Shadow Minister for Transport at the time he made the FOI request. The respondent had sought access to reports arising from certain consultancies on waterfront reform and had been refused. The conclusive certificate stated that disclosure of the documents would be contrary to the public interest.

The respondent instituted proceedings in the Federal Court seeking judicial review. None of the grounds of the respondent's challenge involve a challenge to the certificates based on a defect apparent on the face of the certificate. Each of the grounds of review is directed to some alleged defect in the decision-making process by which the appellant determined to issue the conclusive certificate. The grounds relied on are traditional administrative review grounds (including an alleged denial of natural justice), which would ordinarily be subject to review under the ADJR Act. The appellant contended that access to relief under the ADJR Act has been relevantly curtailed by the FOI Act. The respondent contended that the FOI Act deals with the question of merits review in respect of the issuing of a conclusive certificate, but does not foreclose judicial review of the actual decision to issue a certificate.

Marshall J reserved a preliminary question for determination as follows:

"whether the alleged decisions referred to in paragraphs 1 and 3 of the proposed further amended application for an order for review dated 2 December 1999 (the "amended application") are amenable to review by the Court as sought in the amended application."

His Honour answered that question in the affirmative.

The Full Court by majority (Black CJ and Finkelstein J; Burchett J dissenting) dismissed the appellant's appeal.

The ground of appeal is:

The separate question ought to have been answered "no" as the decisions of the appellant to issue the certificates issued under s33A(2) and s36(3) of the Freedom of Information Act 1982 (Cth) (the Act) are not decisions reviewable under s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or s39B of the Judiciary Act 1903 (Cth) on grounds other than grounds going to defects apparent on the face of the certificates, because of the effect of the words "establishes conclusively" in ss33A(2A) and 36(3) of the Act in the context of the Act as a whole.

HARWOOD v. THE QUEEN (B49/2001)

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

Date of Judgment: 30 May 1995

Date Special Leave granted: 27 June 2001

The appellant was tried jointly with Gary Hind and on 15 September 1994 both were convicted of murder and sentenced to life imprisonment.

The evidence at trial was that at about 11:00pm on 16 February 1994, the appellant and Hind went to a bus depot in Bundaberg where they intended to rob the cafeteria. Hind was armed with a sawn-off .22 calibre rifle. The appellant knew that Hind had the weapon but did not know whether or not it was loaded. The victim was sitting outside the cafeteria. Hind sat behind him and told him to move on and then pointed the rifle at him. The victim did not move as directed and was shot and killed.

The prosecution case against the appellant for murder was put on 2 bases:–

That Hind shot the deceased intending to cause death or grievous bodily harm and that this was the probable consequence of the prosecution of the common intention to prosecute the unlawful purpose of armed robbery, the offence of murder arising pursuant to a combination of ss. 8 and 302(1)(a) of the Criminal Code (Qld); and

That the death was caused by means of an act done in the prosecution of an unlawful purpose which act was of such a nature as to be likely to endanger human life and that the killing of the victim in this way was the probable consequence of the prosecution of the common unlawful purpose of robbery, the offence of murder arising pursuant to a combination of ss. 8 and 302(1)(b) of the Criminal Code.

In the appellant's case, the offence of manslaughter was available and depended upon a combination of the criminal negligence provision in the Code and s.8 of the Code.

In summing up, the trial judge did not instruct the jury that a manslaughter verdict was also available against the appellant in the event that a conclusion was reached that an unlawful killing by the co-accused was a probable consequence of the prosecution of the common unlawful purpose.

The appellant's appeal to the Court of Appeal was dismissed. The majority of the Court overruled an earlier decision in R v. Jervis [1993] 1 QdR 643, which found that a verdict of manslaughter was available in a situation where an unlawful killing by a co-accused was a probable consequence of the prosecution of a common unlawful purpose. The Court of Appeal held that if the co-accused was convicted of murder, the appellant could not be convicted of manslaughter and that Jervis should not be followed. The judgment of the Court of Appeal in the appellant's case was subsequently overruled in R v. Barlow (1997) 188 CLR 1, which confirmed the correctness of Jervis.

The ground of appeal is:

The Court of Appeal erred in holding that the appellant could not be convicted of manslaughter in the event that the co-accused, Hind, was convicted of murder, in consequence whereof the appellant was denied a fair trial in that a possible basis for conviction of manslaughter was not put to the jury.

I & L SECURITIES PTY LTD v. HTW VALUERS (BRISBANE) PTY LTD (B48/2001)

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

Date of Judgment: 22 September 2000

Date Special Leave Granted: 27 June 2001

This appeal relates to a claim made by the appellant under s.52 of the Trade Practices Act 1974 (Cth) ("the Act") against the respondent (a valuer), who gave a wrong valuation of real property upon which the appellant relied to its detriment.

The trial judge found that the wrong valuation was a cause of the appellant making a loan, on which loan the appellant lost a substantial amount of money.

The trial judge also found that there was another cause of the loss, that being the appellant's failure to making sufficient enquiries in relation to the capacity of the borrower to make repayments under the loan. The borrower never had any realistic opportunity of meeting the interest payments and made default 5 weeks after the loan was made. The trial judge found that this information would have been readily ascertainable by the appellant with reasonable inquiries.

As result of the trial judge finding that there were two independent causes of loss, damages were awarded based on an assessment of the respective parties' responsibilities for the loss, resulting in the appellant recovering only two thirds of the total loss on the loan.

On appeal (by the appellant), the Court of Appeal (sitting a bench of 5 judges) considered the interrelation of s.82 and s.87(1) of the Act. S.87(1) reads as follows:

"...where, in a proceeding instituted under, or for an offence against, this Part, the Court finds that a person who is a party to the proceeding has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in...in contravention of a provision of Part IV, IVA or V, the Court may, whether or not it grants an injunction under section 80 or makes an order under section 80A or 82, make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in sub-section (2) of this section) if the Court considers that the order or orders concerned will compensate the first mentioned person in whole or in part for the loss or damage or will prevent or reduce the loss or damage".

Section 87(2)(d) reads as follows:

"an order directing a person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage".

The appellant submitted that the Court of Appeal should take a narrow view of section 87(1) and that it could not be used to make an order where there were two independent causes of loss of which a plaintiff complains, one cause being the responsibility of the plaintiff. Alternatively the appellant submitted that under section 82(1), a plaintiff that had proved that one of the causes of loss was a breach of section 52 of the Act, was entitled by virtue of that section to an award of the whole of the loss and that section 87(1) could not be used to reduce that.

The respondent submitted that section 82(1) did not embody an "all or nothing" rule.

The Court of Appeal dismissed the appellant's appeal supporting a broad reading of section 87(1). This Court has subsequently delivered its decision in Henville and Anor v Walker and Anor (2001) 182 ALR 37, allowing an appeal by plaintiffs who suffered loss in similar circumstances to the appellant in this case.

The ground of appeal is:

The Court of Appeal erred in construing section 87 of the Trade Practices Act 1974 (Cth) as conferring upon the Courts a general discretion to reduce the measure of damages otherwise recoverable by the Plaintiff pursuant to section 82 of the Trade Practices Act 1974 (Cth).

CAMERON v. THE QUEEN (P59/2001)

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

Date of Judgment: 3 October 2000

Date Special Leave granted: 25 October 2001

The appellant pleaded guilty to an indictment alleging that he had in his possession a quantity of methylamphetamine with intent to sell or supply it to another. He was sentenced to 10 years' imprisonment.

The facts found by the sentencing judge were that on 22 April 1999, the appellant was spoken to by police and searched after alighting from an aircraft in Perth that had come from the eastern states. He was found to be in possession of a plastic package that contained over 5,000 tablets, which were found to be 3-4% pure.

The appellant participated in a record of interview but made no admissions. The appellant had a previous record of offending. The sentencing judge referred to personal circumstances of the appellant but concluded that no mitigation would apply in respect of that as the offence was so serious that personal circumstances should pay little part. The sentencing judge imposed a term of 10 years' imprisonment but reduced that to 9 years to take into account the plea of guilty.

The appellant applied for leave to appeal against the sentence on the ground that the sentencing judge had given insufficient credit for the early plea of guilty. The circumstances relating to the plea were that the appellant appeared shortly after his arrest in the Court of Petty Sessions in April 1999 and was charged there on a complaint that he had in his possession ecstasy, the incorrect substance. The certificates of analysis showing the correct substance to be methylamphetamine, were produced on 28 June 1999, although it is not clear when these were provided to the appellant's lawyers.

The appellant appeared before the court on 4 June, and on 2 July elected a preliminary hearing. On 30 July there was a further remand to 31 August followed by a further 5 remands. On 10 November the appellant's solicitors communicated to the prosecution that the appellant wished to enter a plea of guilty to the charge of "possession of a prohibited drug with intent to sell or supply" and asked that the matter be listed on 16 November for the entering of that plea. They also requested that the charge be amended to methylamphetamine. This occurred.

On appeal, it was submitted to the Court that it was not possible for the appellant to enter a plea until the charge had been amended. This submission was rejected by the Court of Criminal Appeal who accepted the sentencing judge's conclusions in relation to the reduction of sentence for a plea of guilty.

The ground of appeal is:

The Court of Criminal Appeal erred in finding that the learned sentencing Judge had not erred in the exercise of his discretion, when sentencing the appellant to a term of 9 years imprisonment, finding that the learned sentencing Judge gave sufficient credit (1 year or 10%) for the appellant's fast track plea of guilty.

Published in Case Summaries

Wednesday, 30 June 2010 16:57

Full Court Matters - December 2001

TAME v. MORGAN & ANOR (S83/2001)

Court appealed from: Supreme Court of New South Wales (Court of Appeal)

Date of Judgment: 12 May 2000

Date of grant of special leave: 6 April 2001

On 11 January 1991 the appellant was driving in Richmond when a vehicle driven by Terence Lavender travelling in the opposite direction collided with her. Each driver was conveyed to hospital for treatment. Blood alcohol readings were taken. Mr Lavender was at fault; he was on the wrong side of the road and affected by alcohol (his blood alcohol reading was 0.14).

The appellant instructed a solicitor, Mr Weller. Since Mr Lavender was driving an uninsured vehicle, the appellant sued the Nominal Defendant. The claim was handled by NZI Insurance. NZI made a written admission of liability on 11 June 1991 and ultimately the claim against the Nominal Defendant was settled in August 1994 with a substantial sum being paid to the appellant.

The appellant suffered significant leg and back injuries. There were many attendances for physiotherapy. Around May 1992 there were problems with payment of physiotherapy accounts. During a conversation with the appellant in June 1992, Mr Weller told her that the P4 (the police report of the accident) recorded that she had a blood alcohol reading of 0.14, when in fact it should have recorded that she had a nil reading. The appellant rang the police at Windsor. Constable Morgan told her that her blood alcohol reading was nil and that the information about it on the P4 form was a mistake.

NZI's solicitor re-confirmed that liability was admitted on 29 July 1992. In early 1993 Mr Weller sought and received from the Police Service a formal assurance that the mistake on the P4 had been rectified, coupled with an apology. However, the appellant continued to think that the delay in meeting the physiotherapy bills was connected with the false information on the P4 form. (In truth the insurer considered the treatment unnecessary.) She became depressed and she was diagnosed with a depressive illness in June 1995. She sued Constable Morgan and the State of New South Wales for the negligent infliction of psychiatric disorder.

The trial judge held that the respondents were liable in negligence for the psychiatric injury suffered by the appellant as a result of her receiving knowledge of the mistake in the P4 report.

The Court of Appeal held unanimously that causes of action for pure psychiatric illnesses are distinct from claims based upon physical injury and that no duty of care is owed to a plaintiff unless a person of normal fortitude would suffer psychiatric injury by the negligent act or omission of the defendant (unless the defendant has knowledge of any particular susceptibility of the plaintiff). The Court found that the injury suffered by the appellant would not have been suffered by a person of normal fortitude and that no duty of care was owed to the appellant as the risk of psychiatric illness which she suffered was not reasonably foreseeable.

The grounds of appeal are:

Causes of action for pure psychiatric illness are distinct from claims based on physical injury;

No duty of care is owed to a plaintiff unless a person of normal fortitude would suffer psychiatric injury by the negligent act or omission of the defendant unless the defendant has knowledge of any particular susceptibility of the plaintiff;

The "eggshell psyche" rule applies after a determination has been made that a person of normal fortitude would suffer some injury;

The psychiatric injury suffered by the Appellant would not have been suffered by a person of normal fortitude;

No duty of care was owed to the Appellant as the risk of psychiatric illness which she suffered was not reasonably foreseeable;

A necessary element in a cause of action for pure psychiatric injury is that it must be occasioned by a shock in the sense of a sudden sensory perception;

The Appellant did not suffer psychiatric injury by shock;

The damages suffered by the Appellant were too remote to be recoverable.

ANNETTS AND ANOR v. AUSTRALIAN STATIONS PTY LIMITED (P97/2000)

Court Appealed from: Supreme Court of Western Australia (Full Court)

Date of Judgment: 21 November 2000

In August 1986, James Annetts, a 16 year old, left home to work for the respondent as a jackeroo at Flora Valley Station in the Kimberley district of Western Australia. In October 1986, he was sent by the respondent to work at Nicholson Station, a very isolated location. James was left there unsupervised and alone with only radio communication to other properties of the respondent. James decided to run away from Nicholson Station but the motor car became bogged and he died in the Gibson Desert on or about 4 December 1986. The applicants are the parents of James Annetts.

On 6 December 1986, the police made a telephone call to Mr Annetts and informed him that James was missing and it was believed he had run away. Mr Annetts collapsed when he was given this news.

In January 1987, Mr and Mrs Annetts went to the Kimberleys to the Hall Creek Police Station where they were shown some of James' belongings, including a hat covered in blood. It was only on 26 April 1987 that the motor car was found and later that day, James' remains were found. Mr Annetts returned to Hall Creek and was able to identify James from the photographs of his remains.

The applicants sued the respondent for damages on the basis that the respondent's negligence caused the death of James and that the same negligence caused each of them to suffer psychiatric injury.

On the application of the respondent, the Supreme Court of Western Australia ordered that a preliminary question be decided. That question was: On the basis of the assumption of the truth of certain of the facts alleged in the pleadings, did the respondent owe Mr and Mrs Annetts a duty of care?

The preliminary question was heard and decided adversely to the applicants.

The Full Court dismissed the appeal. The Court found, inter alia, that it was not reasonably forseeable that the applicants might suffer a sudden sensory perception of a phenomenon so distressing, that a recognisable psychiatric illness would be caused. The Court also found that, in order to establish the necessary degree of proximity to recover damages, the person who has suffered psychiatric injury must directly perceive the distressing phenomenon or its aftermath and on this basis, the applicants failed to establish the necessary degree of proximity.

The application has been referred to a Full Court to be argued as if on appeal.

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

Whether the common law of Australia governing the recovery of damages for the negligent infliction of injury should continue to require different rules to apply, depending upon whether the injury is characterised as physical injury or psychiatric injury.

SGH LIMITED (formerly known as SUNCORP BUILDING SOCIETY LIMITED) v. THE COMMISSIONER OF TAXATION (B19/2001)

Date of Case Stated: 21 March 2001

In 1976, a financial crisis developed which involved seven Queensland building societies incorporated under the Building Societies Act 1886 (Qld). To avoid the impending collapse of these institutions and to provide stability and investor confidence in the building society industry, the State Government created a new building society ("SGIO Building Society") which would be closely linked to Queensland's existing State Government Insurance Office ("SGIO"). SGIO Building Society took over the assets and liabilities of the seven collapsing societies. For the purposes of the present proceedings, there is no dispute that SGIO and its successor Suncorp Insurance and Finance ("Suncorp") are properly characterised as "The State" for the purposes of Section 114 of the Constitution.

The takeover took place by way of legislative reform. Through the Building Societies Amendment Act 1976 (Qld), power was conferred upon the Registrar of Building Societies to direct the transfer of engagements or property from one building society to another, and a contingency fund to be held by the State was created for the protection of persons who contributed, lent or deposited money with the building societies. Also by legislation the SGIO Building Society was created and incorporated with particular rules and membership structure which vested control of the society in SGIO. It is the status of SGIO Building Society, later known as Suncorp Building Society, of which the applicant is the legal successor, with which these proceedings are concerned.

Between 1976 and 1985, SGIO Building Society continued to operate as a building society pursuant to these arrangements and made contributions to the contingency fund. Upon the repeal of the 1886 statute by the Building Society Act 1985 (Qld) the amount standing to the credit of the contingency fund was transferred to a new fund which was again held by the State. On 5 July 1993, after the Building Societies Fund Act 1993 (Qld) made provision for the disbursement of the contingency fund, the State paid to Suncorp Building Society an amount in excess of $23 million. A further sum in excess of $2 million was made as an ex gratia payment from the State on 28 July 1993.

On 15 March 1995 the Australian Taxation Office assessed tax on these two payments for the year ended 30 June 1994. Objection was made by the applicant on the ground that the applicant was not subject to the imposition of tax by the Commonwealth by reason of s.114 of the Constitution which says as follows:

"A state shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on any property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State."

The Australian Taxation Office disallowed the objection for various reasons including that the applicant was not the "State" within the meaning of s.114 of the Constitution and that the payments made to the applicant were bounties or subsidies assessable under Section 26(g) of the Income Tax Assessment Act 1936 (Cth) and that the tax was not, therefore, a "tax on property" for the purposes of s.114 of the Constitution.

The disallowance of this objection then gave rise to proceedings in the Federal Court and, on 21 March 2001, Justice Callinan ordered that this cause be removed into the High Court pursuant to Section 40 of the Judiciary Act 1903 (Cth) on grounds that questions arose under the Constitution, or involving its interpretation. A case was stated for the consideration of the Full Court.

The questions stated for the consideration of the Full Court are:

Whether SGH Limited is the "State" for the purposes of s.114 of the Constitution?

Whether the tax in question is a "tax on property" for the purposes of s 114 of the Constitution?

ATTORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES v JOHN FAIRFAX PUBLICATIONS PTY LIMITED (S129/2001)

JOHN FAIRFAX PUBLICATIONS PTY LIMITED v ATTORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES (S124/2001)

Court appealed from: Supreme Court of New South Wales (Court of Appeal)

Date of judgment: 2 August 2000

Date of grant of special leave to appeal: 1 June 2001

On 27 October 1997 the Sydney Morning Herald ("the SMH") ran a front-page article about a man committed for trial on drugs charges. That article, which was accompanied by the accused's photograph, described him as a heroin distributor, drug dealer and a drug boss. As a result, the Attorney-General for the State of New South Wales ("the Attorney-General") commenced proceedings against the SMH's publisher, John Fairfax Publications Pty Limited ("Fairfax") for contempt. That application was dismissed, with the trial judge upholding the public interest defence referred to in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Limited (1937) 37SR (NSW) 242.

The Attorney-General then submitted 5 questions of law to the Court of Appeal pursuant to s.101A of the Supreme Court Act 1970 (NSW) ("the Act"). The Court of Appeal dealt with those questions, but its judgment does not ground the matters currently before this Court. The current matters arise out of Fairfax's separate, but related proceedings ("the separate proceedings") commenced in the Court of Appeal on 17 November 1999. Those separate proceedings concerned the effect of s.101A of the Act.

Section 101A of the Act contains the following subsections:

(7) Proceedings under this section are to be held in camera, except that a legal practitioner may be present at the proceedings for the purpose of reporting the case for any lawful purpose of the Council of Law Reporting for New South Wales.

(8) A person:

1. must not publish any report of any submission made under subsection (1), and
2. must not publish any report of proceedings under this section so as to disclose the name or identity of the alleged contemnor.

(9) Any publication in contravention of subsection (8) is punishable as contempt of the Court.

Fairfax sought declarations that ss.101A(7), (8) and (9) were invalid as contravening the implied constitutional freedom of communication on government and political matters. It also submitted that those subsections were incompatible with the exercise by a State court of the Commonwealth's judicial power. On 2 August 2000 the Court of Appeal held (by majority) that those subsections did not contravene the principles in Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51. It did however find that ss.101A(7), (8)(a) and (9) were invalid because they contravened the implied freedom of political communication affirmed in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. It is from this decision that both the Attorney-General and Fairfax brought separate successful applications for special leave to appeal. Constitutional notices pursuant to section 78B of the Judiciary Act 1903 (Cth.) have been issued in respect of each matter.

The grounds of appeal in S129/2001 (the Attorney-General's matter) are:

The majority of the court below erred in finding that proceedings in the Court of Appeal pursuant to s.101A of the Act constituted a government or political matter attracting the protection of the freedom of communication implied by the Constitution.

The majority of the court below erred in finding that s.107A(7) and (8)(a) were provisions which effectively burdened the implied freedom of communication about government or political matters.

Even if s.101A(7) and (8)(a) did so burden the implied freedom, the majority of the court below erred in finding that those provisions were not reasonably appropriate and adapted to achieve a legitimate objective, namely, protecting persons who have been acquitted of criminal contempt.

The grounds of appeal in S124/2001 (the Fairfax matter) are:

The majority of the court below erred in failing to hold that ss.101(A)(8)(b) and (9) of the Act infringed the freedom of communication about government or political matters implied by the Constitution by reason that the sections were not reasonably appropriate and adapted to achieve a legitimate end.

The majority of the court below erred in holding that ss.101A(8)(b) and (9) of the Act were not incompatible with the exercise by that court of the judicial power of the Commonwealth.

The majority of the court below erred in failing to hold that each of ss.101(A)(8)(b) and (9) was incompatible with the implied constitutional freedom of communication and/or the judicial power of the Commonwealth in that, having held that ss.101A(7) and (8)(a) were invalid, the majority failed to take account of the inhibition which ss.101A(8)(b) and (9) placed on reporting proceedings the subject of s.101A, as many such cases may be expected to involve public figures and/or publicly known facts which readily could be connected to any report of such proceedings so as to reveal the identity of the alleged contemnor.

SOLOMONS v. DISTRICT COURT OF NEW SOUTH WALES & ORS (S50/2001)

Court appealed from: New South Wales Court of Appeal

Date of Judgment: 13 July 2000

Date of grant of special leave: 22 June 2001

The issue in this case is whether a person charged in a State Court with an offence under a law of the Commonwealth has the same opportunity as someone charged with a State offence, if acquitted, to obtain a certificate with respect to the costs incurred in the proceedings.

On 22 July 1998 the appellant was charged in the District Court of New South Wales with two counts of being knowingly concerned in the importation of a prohibited import in contravention of s 233B of the Customs Act 1901 (Cth). At the completion of the prosecution case, Keleman DCJ directed an acquittal of the appellant on each count. The jury duly returned verdicts of not guilty on both counts.

The appellant applied to Keleman DCJ for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) ("the Costs Act"). On 24 July 1998 his Honour refused the application because, in his opinion, he had no power to grant such a certificate in respect of proceedings for the prosecution on indictment of a person charged with a Commonwealth offence. His Honour relied primarily upon the reasoning of the Court in Commissioner of Stamp Duties (NSW) v Owens [No 2] (1953) 88 CLR 168.

On 17 December 1999 the appellant sought to review the decision of the District Court by summons filed in the Court of Appeal with an affidavit to explain the reasons for delay in seeking the relief.

On 31 July 2000 the Court of Appeal delivered judgment dismissing the summons by majority (Mason P and Foster AJA), Sheller JA dissenting. The question on which the members of the Court divided was whether ss 39(2), 68(2) or 79 of the Judiciary Act (Cth) ("the Judiciary Act") or a combination of those provisions rendered the Costs Act applicable to proceedings in relation to federal offences.

The grounds of appeal are:

The majority in the Court of Appeal (Mason P and Foster AJA, Sheller JA dissenting) erred in holding that the power conferred by s. 2 of the Costs Act in any proceedings relating to any offence:-

(a) was not part of the jurisdiction of the Court with respect to the trial of a person charged with an offence against the laws of the State, so as to not be part of "the like jurisdiction" with respect to persons who are charged with offences against the laws of the Commonwealth, vested in the District Court by s. 68(2) of the Judiciary Act;

(b) was not part of the laws of the State made binding on all Courts exercising federal jurisdiction in that State, in all cases to which they are applicable, by s.79 of the Judiciary Act.

The majority of the Court further erred in that:-

1. the President erred in concluding that-

(i) power to grant a certificate under the Costs Act was not "with respect to" any part of federal jurisdiction because it did not "form a necessary part of the jurisdiction with repect to trial and conviction on indictment" (Judgment, para 21); and

(ii) even if the District Court were exercising federal jurisdiction, s. 79 would not pick up s. 2 of the Costs Act and apply it to an offence under Commonwealth law because that would purport to change the meaning of the State law. (Judgment, paras 12 and 13).

2. Foster AJA erred in-

(i) applying the reasoning of the majority of this Court in Gurnett v The Macquarie Stevedoring Company Pty Ltd [No.2] (1956) 95 CLR 106 in relation to the operation of s. 37 of the Judiciary Act, to the operation of s. 68(2); and

(ii) failing to find that the power conferred on the District Court by the Costs Act was, in the words of Dixon CJ in Gurnett, "consequential upon and intimately bound up with" the disposition of the trial.

FIREBELT PTY LTD v. BRAMBLES AUSTRALIA LIMITED (trading as CLEANAWAY) & ORS (B52/2001)

Court Appealed from: Federal Court of Australia (Full Court)

Date of Judgment: 22 November 2000

Date of grant of special leave: 27 June 2001

On 24 February 1995, the appellant was registered as the patentee in respect of an invention described in the provisional specification as follows: -

"This invention relates to a refuse vehicle and in particular, to a side loading refuse vehicle and more particularly, but not limited to, an automated side loading refuse vehicle for simultaneous collection, but separate storage of garbage and/or recyclable wastes in the one vehicle."

In June 1995 the appellant commenced proceedings in the Federal Court of Australia against the first and second respondents alleging that they were infringing the appellant's petty patent by their use of a side loading refuse vehicle. The first and second respondents each filed their defence, which contained amongst other grounds a denial of any infringement of the petty patent.

On 16 November 1998, the first respondent filed a further amended cross claim, seeking revocation of the petty patent on the basis that it was not a patentable invention within the meaning of s 138(3) of the Act on a number of grounds, including want of inventive step.

The proceedings were heard by Dowsett J in the Federal Court. The preliminary issue before his Honour was the first respondent's cross claim for revocation of the patent. On 24 December 1998, Dowsett J held amongst other things that the claimed invention lacked an inventive step and did not describe the best method known to the applicant of performing the invention. Orders made by His Honour on 10 June 1999 included revocation of the patent and dismissal of the appellant's original application.

Dowsett J's decision was based on evidence of the state of "prior art" and an acceptance of evidence that a loading mechanism incorporating a lid opening device was well known prior to February 1992 and that the solution of a loading mechanism incorporating a lid opening device (said to be the "inventive step") would be obvious by reference to previous experience in the industry.

The appellant appealed to the Full Court against the finding of lack of inventive step and that the specification did not describe the best method of performing the invention. The respondent filed a notice of contention claiming errors on the part of the trial judge in relation to various positive findings made by him in relation to the appellant's claim. The second and third respondents (the Cooloola Shire Council and the State of Queensland) did not participate in the appeal.

The Full Court of the Federal Court dismissed the appellant's appeal and as a result, and in accordance with the first respondent's wishes, did not deal with the issues raised in the notice of contention.

The grounds of appeal are:

Whether the Full Court of the Federal Court erred in formulating its own ex post facto "notional problem" approach for the purpose of ascertaining whether there was an inventive step in a patent for a combination, under the Patents Act 1990, or whether the Court should have identified upon the evidence a real existing practical problem (or the non-recognition of any problem) in the art at the priority date;

Whether the Full Court of the Federal Court erred:

a. in failing to apply Minnesota Mining and Manufacturing Co v. Beiersdorf (Australia) Ltd (1980) 144 CLR 253 in the application of s.7 of the Patents Act 1990 in relation to the test for inventive step in the case of a patent for combination; and

b. in assuming common general knowledge at the relevant time rather than requiring that knowledge to be proved by admissible evidence; and

c. in failing to consider the nature of the evidence required to prove common general knowledge; and the requirements of s.7 of the Patents Act 1990, especially sub-sections 7(2) and 7(3), and in failing to require evidence accordingly;

Whether the Full Court of the Federal Court erred in construing and/or applying s.7 of the Patents Act 1990 in relation to inventive step in a patent for combination so as to permit, as information under sub-section 7(2) to be considered together with common general knowledge, part only of an item of prior act (being part only of a combination); and

Whether the Full Court of the Federal Court erred in that it did not accurately distinguish between the test for novelty and the test for inventive step when applied to an invention, especially an inventive combination, and failed to apply the appropriate test to determine whether the invention was obvious.

Published in Case Summaries

Friday, 25 June 2010 15:37