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No. 4
HIGH COURT
BULLETIN
2003
No. 4 As at 16 May 2003
Date heard: 5 March 2003. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.
Catchwords
Administrative law – standing - inquiry into “guilt” - appellant convicted of murder – during trial, appellant exhibited erratic and unusual behaviour and was unrepresented from time to time - appellant’s fitness to plead not raised at trial – after conviction, Supreme Court Judge instigated inquiry into appellant’s guilt pursuant to s 475 Crimes Act 1900 (ACT) because of doubt about appellant’s fitness to plead at trial – whether doubt or question as to appellant’s fitness to plead at time of trial is within scope of s 475 Crimes Act 1900 (ACT) - whether DPP is “person aggrieved” and has standing to make application.
Appealed from FCA (FC). (2002) 192 ALR 353.
Date heard: 14 November 2002. Judgment reserved.
Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ.
Catchwords
Administrative law – applicability of administrative law remedies to decision made by private company - immunity from monopoly provisions – respondent, a private company, refused to approve bulk export of wheat by appellant – whether decision of respondent involved application of policy against export of wheat without regard to relevant matters, or after taking into account improper considerations - whether consent of respondent was condition precedent to, or exercise of, statutory power – immunity from monopoly provisions pursuant to s 57(6) of Wheat Marketing Act 1989 (Cth) – whether “done” in s 57(6) means “lawfully” done or “purportedly” done - whether decisions of respondent beyond immunity from application of Part IV of Trade Practices Act 1974 (Cth).
Appealed from FCA (FC). (2001) 114 FCR 1.
Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
Catchwords
Bankruptcy – first respondent committed act of bankruptcy and sequestration order was made in respect of his estate – prior to act of bankruptcy, first respondent invested varying sums of money with second, third and fourth respondents (“respondent trustees of superannuation funds”) – whether transfer of money to respondent trustees of superannuation funds by first respondent is void against appellant trustee in bankruptcy pursuant to exception in s 120 Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”) – whether Full Court erred in holding that superannuation funds provided valuable consideration for money or property accepted – whether trustee of superannuation fund is “purchaser ... for valuable consideration” within Bankruptcy Act, s 120 of monies paid as distinct from profits to be obtained from managing superannuation fund – whether trustee of superannuation fund is a person who has given “market value” within Bankruptcy Act, s 120.
Appealed from FCA (FC). (2001) 114 FCR 542.
Date heard: 6 December 2002. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ.
Catchwords
Criminal law – directions to jury - identification evidence – untruths - accused allegedly assaulted victim - at trial Crown called evidence of accused’s identification from photographs – Crown also presented evidence of untrue statements made by accused to police - trial judge failed to warn jury with respect to identification evidence - construction of s 116 Evidence Act (NSW) 1995 - construction of "admitted" in s 116 - definition of identification evidence - consideration of form of direction required - trial judge failed to warn jury with respect to untruths - whether direction in Zoneff v The Queen (2000) 200 CLR 234 in relation to lies required in circumstances of case - whether Court of Criminal Appeal failed to give adequate reasons for decision that error by trial judge did not constitute miscarriage of justice within meaning of proviso to Criminal Appeals Act 1912 (NSW).
Appealed from NSW CCA.
Date heard: 1 April 2003. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ.
Catchwords
Criminal law – directions to jury – murder or manslaughter – appellant drove van while accomplice allegedly shot victims – appellant admitted to police that he drove van but stated that he believed he was only involved in crime of “no more than theft or armed robbery” – “common purpose” involving unlawful and dangerous act - counsel for appellant told jury that if they did not find appellant guilty of murder they should acquit – appellant convicted of murder – whether, despite counsel’s submissions, trial judge erred in failing to direct jury that they could find appellant guilty of manslaughter rather than murder – whether there is overriding duty on trial judge to put manslaughter to jury, irrespective of position advanced by counsel.
Appealed from SA CCA. (2000) 78 SASR 279.
King v The Queen (P28/2001)
Date heard: 10 April 2003. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ.
Catchwords
Criminal law – appeal against conviction – appellant served with restraining order when separated from wife – in breach of restraining order, appellant entered wife’s house without her permission and held her captive – appellant was charged with an offence, elements of which were that he was in his wife’s house without her consent where he committed a crime – the crime committed was breach of a restraining order and the breach of the restraining order was being in his wife’s house without permission – appellant appeals against offence and sentence – grounds of appeal to be recast when representation obtained.
Appealed from WA CCA.
Stanton v The Queen (P117/2002)
Date heard: 9 April 2003. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ.
Catchwords
Criminal law – directions to jury - appellant charged with willful murder – trial judge directed jury as to how to consider alternative verdicts of murder and manslaughter – on appeal, Court of Criminal Appeal held danger that directions may have given jury impression that they were not to consider manslaughter unless they had first reached unanimous verdict on willful murder – however, Court of Criminal Appeal applied s 689 Criminal Code and dismissed appeal on ground that “no substantial miscarriage of justice” flowed from trial judge’s direction – whether Court of Criminal Appeal erred because trial judge’s direction fettered jury’s deliberations so as to cause miscarriage of justice – whether acquittal requires positive satisfaction that prosecution case is not proved or lack of satisfaction that case is proved – whether trial judge should require a jury to consider alternative verdicts in a particular order.
Appealed from WA CCA. (2001) 24 WAR 233.
Date heard: 2-3 April 2003. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.
Catchwords
Defamation – defence – qualified privilege - inaccurate publication of court proceedings - respondent published article reporting judgment of Federal Court in subscription newsletter – appellant sued respondent on grounds that article misdescribed appellant and misdescribed appellant’s role in acts that gave rise to court proceeding - whether “qualified privilege to publish reports of court proceedings” can be pleaded in respect of an inaccurate report of court proceedings - whether trade journal has qualified privilege in respect of any subject matter with which trade journal deals - whether Court of Appeal erred in holding that respondent had duty to publish the matter and thereby finding that the article was published on occasion of qualified privilege at common law – whether Court of Appeal misapplied decision in Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 – whether defence of qualified privilege can extend to protect inaccurate report of court proceedings.
Appealed from NSW CA.
Date heard: 11-12 March 2003. Judgment reserved.
Gleeson CJ, McHugh, Kirby, Callinan and Heydon JJ.
Catchwords
Defamation - appellant published articles in newspapers – respondent brought proceedings alleging defamatory imputations – at trial jury decided imputations had not been conveyed - whether Court of Appeal erred in holding that answers given by jury in respect of some imputations were perverse - whether Court of Appeal erred in deciding whether or not jury's answers were perverse by reference to competing arguments put to jury by counsel - whether Court of Appeal erred in exercise of discretion in ordering new trial on imputations in respect of which it upheld jury's answers - whether appeal should have been dismissed rather than verdict set aside - whether erroneous to formulate rule of general application to trials under s 7A of Defamation Act 1974 (NSW) that plaintiff should have both an opening address and right of reply.
Appealed from NSW CA.
Date heard: 30 April-1May 2003. Judgment reserved.
Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.
Catchwords
Defamation – fair protected report - appellant surgeon operated on Mrs Whitaker’s blind right eye but failed to warn her of chance of developing sympathetic condition in her left eye – Mrs Whitaker subsequently developed condition and was awarded damages by NSW Supreme Court against appellant because of appellant’s failure to warn – Federal Court held that Mrs Whitaker was liable to pay tax on award of damages – respondent published report of Federal Court decision in which it described Supreme Court decision and relied on comment and statements made by Federal Court about Supreme Court decision – report of Federal Court decision contained defamatory imputation that appellant blinded Mrs Whitaker by negligently operating on her eye – whether report of Federal Court decision falls under defence of fair protected report pursuant to s 24(3) of Defamation Act 1974 (NSW) – whether fair protected report defence requires that report be expressly or impliedly attributed to proceedings in question – whether, when read fairly, report conveyed what an ordinary, reasonable person reading Federal Court decision would have understood - whether knowledge of corporate publisher on issues of lack of good faith under s 26 and malice are limited only to knowledge of publisher’s servants and agents who were responsible for matter complained of.
Appealed from NSW CA.
Discrimination
Date heard: 29-30 April 2003. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.
Catchwords
Discrimination – disability discrimination – D sustained brain injury that caused disinhibited behaviour – H was expelled from High School on account of behavioural difficulty – Human Rights and Equal Opportunity Commission (“HREOC”) made a decision that State of New South Wales discriminated against D on ground of disability contrary to Disability Discrimination Act 1992 (Cth) – on appeal Full Court upheld trial judge’s decision to set aside HREOC’s decision on ground that, for purposes of the Act, distinction must be drawn between “disability” and “conduct which it causes” and that proper comparison for determining discrimination was comparison between D and another student manifesting same behaviour - whether s 4 of Act includes behavioural manifestation of a physical impairment – whether it is “discrimination” within meaning of s 5 of the Act to treat a person whose physical impairment has a behavioural manifestation less favourably than others but in the same way as a person manifesting the same behaviour would be treated.
Appealed from FCA (FC). (2002) 190 ALR 588.
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.
Catchwords
Equity - contract for sale of land - time for payment of part of deposit an essential term - balance of deposit not paid on time and vendors terminated contract - purchasers sought relief from forfeiture of equitable interests - Court of Appeal held that land had increased in value and vendors gained windfall – whether increase in value of land relevant - whether unconscionable to profit from increase in value - further, since forfeiture provision was security for payment of deposit it was appropriate there be relief from forfeiture - contract terminated without notice - essential term breached - whether in circumstances, equitable intervention available when time of essence provision breached.Appealed from NSW CA.
Date heard: 13 March 2003. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.
Catchwords
Equity – relief against forfeiture contract for sale of land - deposit paid - completion did not take place as difficulties with finance - completion date extended - time of essence - completion again did not take place and respondents rescinded contract - appellant sought relief against forfeiture of deposit and submitted delay of one day in completion was trivial and further that since property had increased in value it was unconscionable for respondent vendors to take advantage of delay and obtain windfall - purpose of forfeiture provision - whether in circumstances equity will aid purchaser in breach of time-essential condition.
Appealed from NSW CA.
Date heard: 11 December 2002. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ.
Catchwords
Evidence – customs and excise proceedings - standard of proof - proceedings against respondents alleged respondents moved goods without authorisation and evaded customs and excise duties contrary to Customs Act 1901 (Cth) and Excise Act 1901 (Cth) – Customs Act and Excise Act provide proceedings may be “commenced prosecuted and proceeded with ... in accordance with usual practice and procedure of Court in civil cases” – whether customs and excise prosecutions are criminal proceedings for the purposes of the Evidence Act 1977 (Q) - whether standard of proof applicable to customs prosecutions under Pt XIV of Customs Act and excise prosecutions under Pt XI of Excise Act is civil or criminal standard – whether application of civil standard of proof in these proceedings would contravene Chapter III of the Constitution.
Appealed from Qld CA. (2001) 162 FLR 230. (2001) 188 ALR 493.
Immigration
Date heard: 2 October 2002. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ.
Catchwords
Immigration – construction of Migration Act 1958 (Cth) - review of decisions – appellant applied for protection visa – Refugee Review Tribunal (“RRT”) refused application – on application for review, Federal Court held that it appeared that RRT decision was illogical but that Migration Act precluded merits review - whether administrative decision maker acts in excess of jurisdiction where decision not based on findings or inferences of facts supported by logical grounds – whether s 476(2)(b) of Migration Act precludes judicial review of decision of RRT which is illogical or irrational or based on findings or inferences of fact not supported by logical grounds pursuant to ss 476(1)(b), (c) and (e) of Migration Act – application for order absolute in first instance.
Appealed from FCA (FC). (2001) 109 FCR 424; (2001) 183 ALR 59.
Case stated.
Date heard: 8 April 2003. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.
Catchwords
Immigration – well founded fear of persecution – definition of particular “social group” pursuant to the Convention on the Status of Refugees as incorporated by the Migration Act 1958 (Cth) – homosexuality – appellants citizens of Bangladesh – appellants involved in same-sex relationship with each other – appellants applied for protection visa on ground of “persecution of homosexuals in Bangladesh” – Federal Court held that Refugee Review Tribunal (“RRT”) concluded that being a member of social group “homosexuals” did not pose a risk of persecution but that “if a homosexual couple force Bangladesh society to confront their homosexual identity ... they will encounter problems” - whether social group in this case should be identified as “homosexuals generally” or “homosexuals who were known to be homosexual or who openly proclaimed their homosexuality” – whether RRT should have asked what was likely to happen to appellants if they were to return to Bangladesh – whether RRT asked itself wrong question - whether RRT should have considered whether or not the need for a homosexual couple to live discreetly amounts to persecution – whether RRT has developed a “doctrine of discretion” in relation to cases involving persecution claimed by homosexuals – whether Bangladesh Penal Code, s 377 proscribing anal sex with men, women and animals, is relevant to issue of persecution.
Appealed from FCA (FC).
Date heard: 6 March 2003. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ.
Catchwords
Immigration – procedural fairness – duty to give reasons - Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) determined to decide the Prosecutor’s application pursuant to s 501(2) of the Migration Act 1958 (Cth) – whether the Minister failed to personally afford the Prosecutor an opportunity to make submissions on the case against him – whether the Minister failed to provide any or adequate reasons for his decision – whether the decision of the Minister was wholly unreasonable in all the circumstances.
Constitutional writs.
Date heard: 7 May 2003. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ.
Catchwords
Immigration – procedural fairness – jurisdictional error – prosecutor citizen of Sri Lanka claims to have ‘well-founded fear of persecution’ if compelled to return there – whether Refugee Review Tribunal considered the subjective fear of the prosecutor.
Constitutional writs.
Industrial Relations
Date heard: 6-7 May 2003. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.
Catchwords
Industrial relations – variation of awards – application to vary Maritime Industry Seagoing Award - jurisdiction of Industrial Relations Commission where vessel registered in the Bahamas and where the crew of the vessel are Ukrainian nationals – whether an "industrial issue" - Workplace Relations Act 1996 (Cth), s 5(3) – service of process.
Application for prohibition and certiorari directed to the members of the Full Bench of the Industrial Relations Commission.
Date heard: 21-22 October 2002. Judgment reserved.
Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ.
Catchwords
Insurance law – characterisation of policy of marine insurance – indemnity – contribution - customer sued appellant for injuries suffered in paraflying accident in Swan River estuary – appellant made third-party claim against respondent for contribution – trial judge held respondent liable to indemnify appellant because policy was governed by Insurance Contracts Act 1984 (Cth) – trial judge held that if policy was governed by Marine Insurance Act 1909 (Cth), claim for indemnity was time-barred – whether policy was governed by Marine Act having regard to insured’s interest in insured vessel and insurance policy providing only third-party liability cover – whether a third party liability risk can be treated as a marine insurance risk for the purposes of Marine Act – whether risk in inland waters connected to open sea can be treated as marine insurance risk for purposes of Marine Act - whether insurance policy contract of general insurance to which Contracts Act applied.
Appealed from WA (FC). (2001) 24 WAR 453. (2001) 163 FLR 455.
Legal Practitioners
Date heard: 1 May 2003. Adjourned to a date to be fixed.
Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ.
Catchwords
Legal practitioners – professional misconduct - appellant solicitor was convicted on charges of aggravated indecent assault against children in his care – appellant was later convicted of further assaults but convictions were quashed – contrary to requirement, appellant did not disclose further convictions to respondent – based on appellant’s initial convictions and fact that appellant did not inform of later convictions, respondent sought appellant’s removal from Roll of Solicitors – whether appellant’s behaviour amounts to professional misconduct pursuant to Legal Profession Act 1987 (NSW) - whether breach of trust committed by solicitor towards children in his care outweighs other evidence as to character – whether sexual offence is relevant to professional duty of solicitor – whether decision to strike off appellant has precedent in Australian law and is inconsistent with pattern of decisions in similar cases in England and United States.
Appealed from NSW CA.
Date heard: 11-13 February 2003. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.
Catchwords
Negligence – medical negligence – wrongful birth – damages for past and future costs of raising and maintaining child – first respondent fell pregnant and gave birth to child after undergoing sterilisation operation – first appellant (gynaecologist) found negligent for failing to inform respondent of risk that she may not be sterile - whether, in failed sterilisation cases, recoverable damages include cost of child rearing – whether child rearing costs constitute an allowable category of damages for economic loss – whether the asserted pleasure or benefits of raising a child should be set off against damages.
Appealed from Qld CA.
Date heard: 12-13 March 2003. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.
Catchwords
Negligence - duty of care - canola seed from New Zealand containing 0.5% weeds delivered to appellant who resold it to merchants who then supplied seed to various farmers in Western Australian wheatbelt including first respondent – subsequently WA Government recommended that canola seed containing specified weeds (including those contained in the seed sold to first respondent) should be monitored - whether appellant subject to a duty of care to avoid economic loss suffered by first respondent - whether appellant owed duty of care to first respondent as a result of complying with WA Government recommendation – whether appellant breached that duty of care – whether significance to be attached to “apologies” issued by appellant to individuals including first respondent after alleged breach of duty.
Appealed from FCA (FC). (2000) 105 FCR 476. (2000) 182 ALR 481.
Date heard: 3 October 2002. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
Catchwords
Negligence – nervous shock – employer’s negligence caused death of deceased during course of employment – appellant children of deceased did not see accident but learned of accident later on day of accident – whether employer owes appellants duty to take reasonable care to avoid causing them nervous shock – relevance of lack of direct perception of accident by appellants – whether liability precluded by s 4(1)(b) Law Reform (Miscellaneous Provisions) Act 1944 (NSW) – effect of s 151P Workers Compensation Act 1987 (NSW).
Appealed from NSW CA. (2001) 51 NSWLR 606.
Date heard: 8 May 2003. Judgment reserved.
McHugh, Gummow, Kirby, Hayne and Callinan JJ.
Catchwords
Negligence – warning sign – respondent went to movie at appellant cinema – respondent unaware that seat in cinema automatically retracted when unoccupied – while looking after child in her care, respondent left her seat, picked up child and when she attempted to sit back down on seat she missed seat, fell and suffered injury – whether Court of Appeal erred in disregarding trial judge’s finding that respondent’s conduct would not have been different if warning signs had been erected – whether Court of Appeal erred in not dealing with trial judge’s finding as to actual conduct of respondent immediately prior to her injury.
Appealed from NSW CA.
Date heard: 8 November 2002. Judgment reserved.
McHugh, Gummow, Kirby, Hayne and Callinan JJ.
Catchwords
Negligence –- contributory negligence – respondent seriously injured in car accident as passenger in car driven by appellant – both respondent and appellant had been heavily drinking night before accident – whether respondent contributorily negligent because he knew or should have known that appellant driver was seriously affected by alcohol – whether damages recoverable in negligence against driver and local council to be reduced for contributory negligence.
Appealed from NSW CA.
Date heard: 6 November 2002. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ.
Catchwords
Negligence – causation – psychological injury - Appeal Court’s reconsideration of trial judge’s assessment of evidence - appellant suffered minor fall in shopping centre which left her effectively paraplegic - there was no orthopaedic or neurological explanation for extent of injury suffered - trial judge held appellant was not malingering and that appellant suffered conversion disorder caused in part by fall – Court of Appeal held trial judge’s finding on malingering could not be disturbed but that appellant had not discharged onus of proving that conversion disorder was caused by fall – whether Court of Appeal erred in overturning trial judge’s finding – whether Court of Appeal erred in finding no evidence to support causal link between appellant’s accident and injuries.
Appealed from NSW CA.
Date heard: 4 April 2003. Judgment reserved.
Gleeson CJ, McHugh, Kirby, Callinan and Heydon JJ.
Catchwords
Negligence – causation – appellant suffered injury when his bicycle stem broke – whether Court of Appeal erred in setting aside finding of Master that appellant was injured as result of bicycle coming into contact with potholes and rough edge of road - whether sufficient evidence for Master to reach decision that pothole caused bicycle stem to snap.
Appealed from NSW CA.
Date: 7 March 2003. Judgment reserved.
Gummow, Hayne and Callinan JJ.
Catchwords
Practice and procedure - appeal – no cause of action disclosed in pleading - primary judge struck out appellant’s statement of claim – whether consequently action considered vexatious – whether primary judge erred in granting application of respondent.
Appealed from HCA (Single Justice).
Date heard: 22 - 24 October 2002. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
Catchwords
Practice and procedure – “special notice” provisions in State law in respect of actions against Crown – application to matter arising under Constitution or involving its interpretation – appellant brought action to recover taxes unlawfully collected by State in consequence of decision in Ha v New South Wales (1997) 189 CLR 465 - whether s 6 Crown Suits Act 1947 (WA) applies to suit in federal jurisdiction – whether s 6 Crown Suits Act picked up and applied by s 79 Judiciary Act 1903 (Cth) – requirement in s 64 Judiciary Act that rights of parties in suit to which State is party be as nearly as possible same as in suit between subject and subject – whether s 64 Judiciary Act “otherwise provided” for purposes of s 79 Judiciary Act – whether s 64 cannot apply because action relates to peculiarly governmental function – whether Constitution or Judiciary Act conferred right to proceed regardless of non-compliance with s 6 Crown Suits Act – validity of s 64 Judiciary Act – whether s 64 Judiciary Act may be read down to avoid invalidity – whether effect of s 64 Judiciary Act is to render applicable similar “special notice” provision in s 47A Limitation Act 1935 (WA).
Appealed from WA (FC).
Date heard: 12 December 2002. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ.
Catchwords
Practice and procedure – time limitation – full and satisfactory explanation – Motor Accidents Act 1998 (NSW) - appellant injured in car accident – s 43 Motor Accidents Act requires claims to be filed within 6 months of date of accident - appellant filed notice 26 months after accident and provided respondent with explanation for late claim – respondent did not accept explanation as “full and sufficient” and did not waive filing requirement - whether trial judge erred in interpretation of requirements of Motor Accidents Act – whether trial judge erred in failing to consider onus of proving that appellant provided full and satisfactory explanation for delay in making claim – whether prejudice a relevant issue in determining requirements to be met by respondent for purposes of dismissing proceedings.
Appealed from NSW CA.
Date heard: 6-7 November 2002. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ.
Catchwords
Practice and procedure – Court of Appeal – consideration of facts and evidence – respondent contracted “Q fever” while employed by appellant – appellant admitted liability for failing to negate risk of illness by omitting to arrange pre-employment vaccination – trial judge not satisfied respondent suffered symptoms and did not find respondent a credible or reliable witness – trial judge therefore assessed damages at figure below minimum amount – on appeal, Court of Appeal did not address matters according to trial judge’s treatment of expert evidence and published decision based on analysis of transcript and exhibits - whether Court of Appeal erred in formulating for itself and upholding appeal upon issues and arguments which were neither presented to trial judge nor subject of appeal or argument before it, and upon which appellant had no adequate opportunity to be heard.
Appealed from NSW CA.
Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ.
Catchwords
Taxation - superannuation guarantee surcharge - assessment relating to alleged superannuation guarantee shortfall in respect of causal employees - Superannuation Guarantee (Administration) Act 1992 (Cth) - contributions by casual employees governed by Clerical Employees Award - calculation of percentage to be contributed by employer – award required employer to contribute on behalf of each eligible employee “an amount calculated as 3% of the employee’s ordinary time earnings into an Approved Fund” - meaning of “ordinary time" and "overtime".Appealed from FCA (FC).
Date heard: 6 August 2002, 7 February 2003. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ.
Catchwords
Trade practices – ss 4D, 45(2)(a)(i) Trade Practices Act 1974 (Cth) – exclusionary provision – 1st and 3rd appellants agreed to merge two rugby league competitions – agreement contained term that competition would have no more than fourteen teams (“fourteen teams term”) – financial incentives given to clubs to merge or enter joint ventures as means of reducing number of teams – whether rugby league competitions were “in competition” at relevant time so as to attract operation of ss 4D, 45(2)(a)(i) TPA - whether “fourteen teams term” an exclusionary provision within meaning of s 4D – whether in entering into understanding, appellants contravened s 45(2)(a)(i).
Practice and Procedure - intervener – Australian Competition and Consumer Commission intervened in proceedings and sought to raise issue of construction of TPA – issue of construction not raised in proceedings below - appellants initially supported intervener's submissions but later withdrew support – submissions arguably not encompassed by any ground of appeal - whether special leave should be revoked - whether intervener allowed to pursue argument not contested by either party - nature of "appeal" pursuant to s 73 of Constitution.
Appealed from FCA (FC). (2001) 111 FCR 456. (2001) 181 ALR 188.
Date heard: 3 December 2002. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby Hayne and Callinan JJ.
Catchwords
Trade practices – ss 4D, 45, 47 of Trade Practices Act 1974 (Cth) – exclusionary provision - exclusive dealing – appellant entered into negotiations with supplier of waste paper and cardboard by which supplier would have exclusive licence to supply to appellant – draft agreement contained provision that supplier “must not ... collect ... waste products from persons who are customers of [appellant] ...” - whether proffering of draft agreements constituted an attempted contravention of s 45(2)(a)(i) having regard to effect of s 45(6) – whether provision to be considered is each non-competition clause in draft agreements for purposes of applying s 45(6).
Appealed from FCA (FC). (2001) 112 FCR 37. (2000) 186 ALR 731.
Date heard: 2 May 2003. Judgment reserved.
McHugh, Gummow, Kirby Hayne and Heydon JJ.
Catchwords
Workers compensation – procedure – appellant suffered personal injuries in course of employment – as required by s 93D Workers’ Compensation & Rehabilitation Act 1981 (WA) (“1981 Act”) appellant applied for leave of District Court to commence action for common law damages against respondent – District Court listed leave matter for hearing but prior to hearing Workers’ Compensation & Rehabilitation Amendment Act 1999 (WA) (“1999 Act”) repealed s 93D of 1981 Act – Commissioner of District Court subsequently refused to grant leave on basis that 1981 Act no longer applied and that 1999 Act evinced a necessary “contrary intention” sufficient to rebut statutory presumption – on appeal, Full Supreme Court refused to grant leave on basis that appellant did not have “sufficient right” - whether Court failed to give reasons for concluding that appellant did not have right or power or interest existing prior to repeal of 1981 Act so as to enable appellant to continue action pursuant to s 37(1) of Interpretation Act 1984 (WA) – whether Court erred in concluding that its previous decision in Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1 was authority for proposition that appellant did not have right or power or interest which was protected by s 37(1) of Interpretation Act.
Appealed from WA SC (FC).
Date heard: 14 March 2003. Special leave granted on limited grounds.
Catchwords
Administrative law – judicial review – first respondent appointed Chief Magistrate of Northern Territory under Magistrates Act 1977 (NT), s 4 – “special determination” made pursuant to Magistrates Act, s 6 provided for remuneration to be paid to second respondent for a period of two years only - whether appointment of first respondent on those terms was made for an improper purpose or was ultra vires – whether, if appointment was not made for an improper purpose of ultra vires, it nevertheless offended the principles established in Kable v Director of Public Prosecutions (1996) 189 CLR 51 – whether those principles apply to Northern Territory courts.
Appealed from FCA (FC).
Catchwords
Appeal – basis upon which factual findings may be overturned by intermediate appellate court – Ryan suffered significant injuries as a consequence of being struck by vehicle driven by Pledge - primary judge made factual findings leading to liability of Roads and Traffic Authority (“RTA”) and Blue Mountains City Council (“Council”) - Court of Appeal overturned factual findings of primary judge to the extent that he found RTA and Council liable – whether it was permissible for the Court of Appeal to substitute its own factual findings in preference to those of the primary judge – whether a primary judge obtains a particular advantage in assessing evidence over an appellate court where evidence adduced pursuant to s 53 of the Evidence Act 1995 (NSW).
Appealed from NSW CA.
Constitutional Law
Date heard: 11 April 2003. Referred to the Full Court.
Catchwords
Constitutional law – “manner and form” requirements – Electoral Distribution Act 1947 (WA) (“Act”), s 13 provides that it is not lawful to present for Royal Assent a Bill to amend Act unless passed by absolute majorities in both Houses of Western Australian Parliament – Electoral Distribution Repeal Bill 2001 (WA) and Electoral Amendment Bill 2001 (WA) passed through both Houses of Parliament but neither passed with absolute majority by Legislative Council – whether Electoral Distribution Repeal Bill 2001 was a Bill to amend Act – whether s 13 of Act had been repealed by Acts Amendment (Constitution) Act 1978 (WA) – whether s 13 of Act was a manner and form requirement that operated to bind Western Australian Parliament when enacting the Electoral Distribution Repeal Bill 2001.
Appealed from WA CA. (2002) 26 WAR 201.
Date heard: 14 February 2003. Special leave granted.
Catchwords
Constitutional law – Constitution section 109 - inconsistency between State and Commonwealth legislation – appellants are Local Government Councils that impose rates on land – exemptions from rates have been granted to certain providers of public utilities – Telstra and Optus are telecommunications carriers that have laid cables over and under land asserted to be rateable – clause 44(1) of schedule 3 to the Telecommunications Act 1997 (Cth) provides that ‘a law of a State or Territory has no effect to the extent to which the law discriminates, or would have the effect (whether direct or indirect) of discriminating,’ against a telecommunications carrier – whether clause 44(1) is a valid exercise of the power in section 51(v) of the Constitution – whether State legislation imposing rates discriminates within the contemplation of clause 44(1) - whether inconsistency exists between clause 44(1) and State legislation imposing rates.
Appealed from FCA(FC). (2002) 189 ALR 737.
Date heard: 15 November 2002. Special leave granted.
Catchwords
Constitutional law – freedom of speech – protection of political discussion – powers of arrest - appellant distributed pamphlets headed “Get to know your local corrupt type coppers” in mall - pamphlets contained insulting passages and statements alleging that local police corrupt – Constable P approached appellant but appellant refused to give him a pamphlet – appellant was arrested and convicted of offences against ss 7, 7A of Vagrants, Gaming & Other Offences Act 1931 (Q) – whether appellant was lawfully arrested pursuant to Police Powers and Responsibilities Act 1997 (Q) - whether ss 7 and 7A of Vagrants Act constitutionally valid - whether ss 7, 7A Vagrants Act fall within second limb of test propounded in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
Appealed from Qld CA. (2001) 189 ALR 341. [2002] 2 Qd R 620.
Date heard: 11 April 2003. Special leave granted.
Catchwords
Constitutional law – applicability of State laws to former Commonwealth places – real property in New South Wales first acquired by Commonwealth of Australia (“Commonwealth”) in 1922 – combined effect of Land Tax Act 1956 (NSW) and Land Tax Management Act 1956 (NSW) was that Commonwealth not liable to pay land tax - applicant acquired real property and became its registered proprietor in 1998 – respondent issued a notice of assessment for land tax to applicant in respect of years ending 1998 and 1999 – whether power conferred on Commonwealth Parliament pursuant to Constitution, s 52(i) extends to legislation relating to former Commonwealth places – whether Commonwealth legislation can operate to alter true construction of a State Act enacted prior to that Commonwealth legislation – whether a State Act, otherwise partially invalid when enacted as beyond legislative competence of that State by reason of Constitution, s 52(i), can acquire an altered meaning and consequently be held at all times valid by reason of Commonwealth legislation expressed to operate retrospectively.
Appealed from NSW CA.
Date heard: 9 May 2003. Referred to the Full Court.
Catchwords
Constitutional law – judicial power – applicant is trustee of estate of deceased person (“the deceased”) who was charged on indictment with cultivation and possession of cannabis – the deceased died after pleading not guilty to charge but before it could be determined – Crimes (Confiscation of Profits) Act 1988 (WA) (“the Act”), s 3 provided that in such circumstances the deceased was "taken to have been convicted" for the purposes of the Act thus rendering property of his estate susceptible to forfeiture – consequently, Supreme Court proceedings were commenced by respondent for forfeiture order and pecuniary penalty order against deceased's estate - whether a law which deems a person to be guilty of a serious offence where they have denied guilt and have never been tried is an usurpation of judicial power and therefore constitutionally invalid - whether s 3 of Act invalidly undermines integrity of court's processes and public confidence in administration of justice - whether s 3 of Act affects right of appeal.
Appealed from NSW CA.
Date heard: 13 December 2002. Special leave granted on limited grounds.
Catchwords
Contract – contribution – appellants were instructed by respondents to advise on legal aspects and to act as agent in respect of large investment plan – respondents acted in breach of duties which caused loss of all moneys invested – respondents joined appellants on cross claim because of appellants’ role in receipt and release of subscription monies - whether Court of Appeal erred in holding appellants not entitled to contribution against respondents pursuant to s 23B Wrongs Act 1958 (Vic) – whether Court of Appeal erred in holding that pursuant to s 24 of Wrongs Act it is not just and equitable that an order for contribution be made against respondents in respect of damages which might otherwise be apportioned pursuant to s 23B.
Appealed from NSW CA.
Date heard: 11 April 2003. Special leave granted.
Catchwords
Contract – liability for damage to goods – applicability of Warsaw Convention in determining extent of liability – pursuant to long-standing contractual relationship between applicants and respondent first respondent agreed to transport applicant’s goods from Berlin airport to second respondent’s bonded store in Melbourne – first respondent issued standard air waybill to applicant which limited respondents’ liability for damage to goods in accordance with provisions of Warsaw Convention – clause 4 of air waybill also limited liability for damage to goods where provisions of Warsaw Convention did not apply - goods were damaged on journey from Melbourne airport to second respondent’s bonded store – whether provisions of Warsaw Convention applied to limit respondents’ liability for damage incurred not in the course of “carriage by air” – whether clause 4 of air waybill only applied to carriage by air where Warsaw Convention did not apply.
Appealed from NSW CA.
Date heard: 15 November 2002. Special leave granted.
Catchwords
Criminal law – reopening sentencing proceedings – appellant’s father charged with forging certificate - appellant gave false explanation for forged certificate which was consistent with father’s false explanation and attempted to convince co-worker to give same false explanation to authorities – appellant pleaded guilty to charge of attempting to pervert course of justice contrary to s 43 Commonwealth Crimes Act (Cth) and was sentenced to four months imprisonment – on appeal, Court of Appeal suspended appellant’s sentence and held that she “did what she did for the purpose of helping her father” and “there was no personal benefit to the appellant in committing the offence...” – later at father’s trial, appellant gave evidence to the effect that her sole purpose in attempting to convince co-worker to give false explanation was to cover her own lie - appellant denied she had committed the offence for purpose of assisting her father – on basis of evidence given at her father’s trial, Crown applied to reopen appellant’s sentencing proceedings pursuant to s 188 of Penalties and Sentences Act 1992 (Q) – whether Court of Appeal erred in reopening sentence proceedings and then resentencing appellant without first finding that sentence imposed had been imposed upon basis of a factual error – whether open for Court of Appeal to reopen sentence and to impose greater sentence merely because person has given evidence that contradicted factual basis upon which person was sentenced, without deciding whether evidence was true.
Appealed from Qld CA.
Haunga v Director of Public Prosecutions for the Commonwealth (M61/2001)
Date heard: 13 September 2002. Special leave granted.
Catchwords
Criminal law - sentence - Crown appeal - sentence at first instance reduced upon appellant's sworn undertaking to testify against accomplice – appellant later declined to be sworn or affirmed and declined to give evidence - appellant sentenced to 12 months' imprisonment for contempt - substitution of appropriate sentence on appeal by Crown - whether sentence for contempt to be taken into account - totality - double jeopardy – s 21E Crimes Act 1914 (Cth).
Appealed from Vic CA. (2001) 4 VR 285.
Maroney v The Queen (B62/2002)
Date heard: 15 November 2002. Special leave granted.
Catchwords
Criminal law – “supply” of drug – ss 6, 7 Drugs Misuse Act 1986 (Q) – appellant was inmate at correctional facility and arranged for M to supply him with heroin – s 6 Drugs Misuse Act 1986 (Q) provides it is an offence of “aggravated supply” if a “person to whom [heroin] is supplied is within a correctional institution” – s 7 provides relevantly that any person who counsels or procures any other person to commit an offence may be charged with actually committing the offence – both M and appellant were therefore charged under s 6 of “aggravated supply” – whether a person can be criminally liable for the offence of supplying a dangerous drug to him or herself contrary to s 6.
Appealed from Qld CA. [2002] 1 Qd R 285.
NJA v The Queen (A75/2002)
CMM v The Queen (A124/2002)
Date heard: 11 April 2003. Special leave granted.
Catchwords
Criminal law – statutory murder – accessorial liability – applicants and one other person (“principal offender”) involved in robbery of two persons – victims of robbery resisted – principal offender produced a knife for purpose of intimidating or stabbing one robbery victim – in course of fight, other victim stabbed and murdered by principal offender - whether presentation of knife by principal offender to one of two victims of a robbery capable in law of being cause of death of other robbery victim for purposes of statutory murder charge where applicants are allegedly accessories to principal offender’s conduct.
Appealed from SA CCA.
Ostrowski v Palmer (P25/2002)
Date heard: 9 May 2003. Special leave granted.
Catchwords
Criminal law – characterisation of mental state giving rise to criminal liability – respondent a commercial fisherman extensively experienced in fishing off Western Australian coast – applicant an officer of Fisheries Western Australia (“FWA”) responsible for monitoring prescribed fishing zones – having determined to change from “wet line” fishing to rock lobster fishing, respondent approached FWA staff for information containing regulations prescribing the zones in which lobster fishing was impermissible – information provided to the respondent had not been amended to reflect permissible fishing zones for relevant season – consequently respondent was charged for rock lobster fishing in a zone he was not permitted to do so – whether respondent’s mistake was to be characterised as a mistake of fact or a mistake of law – whether respondent had available to him a stautory defence of mistaken fact pursuant to Criminal Code (WA) s 24.
Appealed from WASC (FC). [2002] 26 WAR 289.
Date heard: 11 April 2003. Special leave granted.
Catchwords
Damages – victims’ compensation for shock associated with suffering criminal conduct – first respondent was stabbed, punched and kicked by an attacker – second respondent witnessed attack from close range – both respondents applied to Victims Compensation Tribunal (“VCT”) for injuries suffered as consequence of attack – component of compensation claimed by both respondents was for shock – Victims Support and Rehabilitation Act 1996 (NSW), Sched 1, cl 5(a), provided that compensation was payable for shock “only if symptoms and disability persist for more than six weeks” – whether the word “and” as contained in Sched 1, cl 5(a) ought to be construed as having a disjunctive as opposed to a cumulative effect upon expression “symptoms and disability” – whether Court of Appeal erred in construing requirements of Sched 1, cl 5(a).
Appealed from NSW CA. (2002) 54 NSWLR 668.
Kelly v The Queen (H1/2002)
Date heard: 14 March 2003. Special leave granted.
Catchwords
Evidence – admission – applicant convicted of murder – shortly after being officially video-interviewed following arrest, applicant volunteered representation to police detective – representation alleged not to have been made in course of official questioning but when applicant in custody – whether representation constituted an admission for the purposes of s 8(1)(b) of the Criminal Law (Detention & Interrogation) Act 1995 (Tas).
Appealed from Tas CCA.
Extradition
Truong v The Queen (M48/2002)
Date heard: 13 December 2002. Special leave granted.
Catchwords
Extradition – “speciality” provision – relationship between offences for which accused surrendered and eventual trial - appellant charged with eight offences contrary to Crimes Act 1958 (Vic) including murder and kidnapping – upon request from Government of Australia, United Kingdom surrendered appellant for trial in Australia – request for surrender listed only four of the eight charges (including charge of conspiracy to murder and conspiracy to kidnap but not including charge of murder or kidnapping) – appellant convicted of murder and kidnapping – whether convictions of appellant in breach of “speciality” provision in s 42(a)(i) Extradition Act 1988 (Cth) –consideration of scope and content of “speciality” in s 42 of Extradition Act.
Appealed from Vic CA.
Date heard: 11 April 2003. Special leave granted.
Catchwords
Immigration – application for refugee status where persecution claimed to arise from conduct of non-State actors – respondents are Ukrainian nationals who claim to have well-founded fear of persecution because one of them is a Jehovah’s Witness – persecution of Jehovah’s Witness’ claimed to be encouraged by Ukrainian Government – Refugee Review Tribunal (“RRT”) determined that Jehovah’s Witnessess do not experience State-sanctioned persecution in Ukraine or that Ukrainian authorities are unable or unwilling to protect Jehovah’s Witnesses from persecution perpetrated by non-State actors – whether RRT erred by not addressing possibility of future harm to respondents – whether RRT erred by not determining whether the Ukrainian State was able, in a practical sense, to protect respondents from harm – whether RRT erred in considering that harm perpetrated by non-State actors was not persecution in circumstances where Ukrainian State was not encouraging or tolerating such harm and was willing and able to take action to protect respondents.
Appealed from FCA (FC).
Date heard: 14 February 2003. Referred to Full Court.
Catchwords
Immigration – definition of refugee – appellant is a citizen of Iraq who resided in Syria for 14 years prior to arriving in Australia – appellant claimed to have a well-founded fear of persecution pursuant to Article 1A(2) of the Convention on the Status of Refugees if compelled to return to Iraq – whether the concept of “effective protection” requires a third country to have accepted an obligation to receive a putative applicant for refugee status – whether Australia’s protection obligations will be satisfied if there is a “practical likelihood” that a putative applicant for refugee status will be given effective protection in a third country.
Appealed from FCA (FC).
Date heard: 9 May 2003. Special leave granted in all matters.
Catchwords
Industrial relations – characterisation of “industrial action” – applicant and first, second and third respondents (“the Unions”) were engaged in negotiating new certified agreement in respect of terms and conditions of employment of employees at applicant’s manufacturing plants – negotiations did not lead to agreement in respect of a number of issues – one of those issues was whether applicant should be required to advise new employees that a bargaining agent’s fee would be payable to the Unions by non-Union members - Unions conducted industrial action which they claimed constituted “protected industrial action” for purposes of Workplace Relations Act 1996 (Cth), s 170ML(2)(e) – whether industrial action can be protected pursuant to
s 170ML(2)(e) where it may not be taken in pursuance of claims that do not pertain to the relationship between employee and employer – whether issue in respect of bargaining agent’s fee was a matter “pertaining to the relationship between an employer and all persons who are employed in a single business of the employer”.
Appealed from FCA (FC).
Date heard: 9 May 2003. Special leave granted.
Catchwords
Insurance law – motor vehicle insurance scheme - scope of indemnity prescribed by statute – third respondent was a passenger in prime mover owned by first respondent – in the course of routine inspection while vehicle was stationary, driver of prime mover observed that it required repairs – third respondent assisted in the course of repairs but was seriously injured in course of rendering assistance – incident occurred as a consequence of negligence on part of first respondent and driver – third respondent sued first respondent for damages – first respondent sought to be indemnified on the basis of compulsory insurance policy it held with applicant – pursuant to Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 4(1), compulsory insurance policies provided indemnity in respect of “the death of or bodily injury to any person directly caused by, or by the driving of, the motor vehicle” – whether injury suffered by third respondent was “directly caused by, or by the driving of, [the] motor vehicle”.
Appealed from WA CA. (2001) 25 WAR 42.
Date heard: 11 April 2003. Special leave granted.
Catchwords
Intellectual property – copyright – nature of copyright for re-broadcasted copyright material – applicant’s live television programme re-broadcast extracts from range of programmes previously broadcast by respondents – whether copyright subsisted in respect of respondents’ programmes either in each and every still image transmitted or in each and every image capable of being observed on screen – whether finding of infringement pursuant to Copyright Act 1968 (Cth), s 87(a) required anterior determination of what constitutes a television broadcast – whether interest protected by television broadcast not defined in terms of some larger “whole” of which visual images and sounds broadcast are but a part – whether television broadcast in which copyright may subsist is made whenever visual images and accompanying sounds are broadcast by way of television and that re-broadcasting of any of those images and sounds constitutes infringement of copyright.
Appealed from FCA(FC). (2002) 118 FCR 417.
Date heard: 14 March 2003. Special leave granted.
Catchwords
Jurisdiction – determination of appropriate jurisdiction – respondent a former employee of applicant who claims to have contracted asbestos-related injuries in course of employment – proceedings commenced by respondent in Dust Diseases Tribunal (“DDT”) – applicant seeks removal of proceedings to Supreme Court of South Australia – whether primary judge failed to properly take account of jurisdiction within which the cause of action arose and jurisdiction where parties and witness are situated – whether primary judge did not consider or failed to nullify forum-shopping on part of respondent – whether primary judge gave undue weight to fact that proceedings were regularly commenced in DDT.
Appealed from NSW SC.
Date heard: 11 October 2002. Special leave granted on limited grounds.
Catchwords
Negligence – liability – exercise of discretion- workers employed at power station at Wallerawang suffered asbestos-related diseases – workers sued employer and State of New South Wales in negligence – trial judge did not make a finding of liability in negligence against State but did exercise discretion and made an order granting State complete indemnity – whether discretion can be exercised without prior determination of liability or assessment of respective responsibility - Law Reform (Miscellaneous Provisions) Act 1945 (NSW) s 5.
Appealed from NSW CA. (2001) 51 NSWLR 476.
Date heard: 14 March 2003. Special leave granted .
Catchwords
Negligence – duty of care – respondents engaged in 1987 to provide engineering services for construction of a building containing warehouse and offices – building purchased by applicant in 1992 – substantial structural distress to building and perimeter, which became evident in 1994, alleged to be a consequence of respondents’ design of building’s footings – whether duty of care owed by professional engineer to subsequent purchaser of commercial premises for pure economic loss arising from that engineer’s negligent design or supervision of construction – whether distinction should be maintained between purchasers of commercial buildings and purchasers of residential buildings in determining whether duty of care is owed by construction professional for pure economic loss.
Appealed from Qld CA.
Date: 11 April 2003. Special leave granted.
Catchwords
Real property – transferability of permissive occupancy of Crown Land – Commonwealth of Australia (“the Commonwealth”) was granted by the State Minister a permissive occupancy over a certain parcel of land in 1961 pursuant to Crown Lands Consolidation Act 1913 (NSW), s 136K – a condition of permissive occupancy was that Commonwealth could not part with possession of premises, or sell or transfer permissive occupancy without prior consent of State Minister – pursuant to National Transmission Network Sale Act 1998 (Cth), ss 9(1) and (2), Commonwealth Minister for Finance and Administration declared that Commonwealth’s rights and interests in permissive occupancy would vest in applicant without conveyance, transfer or assignment – whether vesting in the applicant, as successor to the Commonwealth, of permissive occupancy brought it to an end.
Appealed from NSW CA.
Date: 14 February 2003. Special leave granted.
Catchwords
Securities – standard form of guarantee - in November 1985 second appellant signed an unlimited guarantee alleged to be secured by pre-existing mortgage - respondent unable to produce guarantee signed by second appellant - judicial notice taken of fact that institutions such as the respondent use standard form of guarantee - standard form of guarantee held to contain provision that guarantee binding on second appellant notwithstanding that appellant did not sign it but was named as a guarantor in the document - whether judicial notice could be taken of fact that institutions such as the respondent use standard form of guarantee - whether guarantee signed by second appellant contained provision that it be binding on each signatory notwithstanding that one or more persons named as guarantors did not execute the guarantee.
Appealed from NSW CA.
Taxation
Date: 11 April 2003. Special leave granted in part. Remainder of application for special leave referred to Full Court.
Catchwords
Taxation – income tax – deductibility of compound interest payments - applicability of Income Tax Assessment Act 1936 (Cth), Pt IVA – respondents obtained loan facility involving two separate loan accounts - one account used for purchase of new residential home (Loan No.1), other account used to pay off a pre-existing mortgage on a former home which was to be rented out as an investment to generate income (Loan No.2) – loan facility operated by permitting respondents to make no repayments on Loan No.2 until principal and interest of Loan No.1 paid in its entirety – respondents deducted compound interest debited to Loan No. 2 from taxable income - whether respondents entitled to deduction of compound interest - whether compound interest, like ordinary interest, an allowable deduction under s 51(1) Income Tax Assessment Act 1936, s 51(1) or Income Tax Assessment Act 1997 (Cth), s 8-1 - whether loan facility that permits a split between home loan portion and an investment loan portion resulting in an overall tax benefit amounts to a scheme to which Income Tax Assessment Act 1936, Pt IVA applies.
Appealed from FCA (FC).
Date: 14 February 2003. Special leave granted.
Catchwords
Trade practices - damages for misleading and deceptive conduct - appellants executed lease with respondent in respect of unit at retirement village - lease provided that maintenance contributions payable by appellants could be varied by respondent - appellants induced to enter into lease based upon pre-contractual misrepresentations concerning level of maintenance contributions required to be made prospectively - whether loss or damage suffered by appellants at the time they were compelled to pay increased maintenance contributions or at the time when they were made aware of obligation to pay - whether loss or damage should be calculated on basis of comparison with hypothetical lease transaction - whether evidence of loss or damage before primary judge - whether respondent acted unconscionably by departing from its representation that all maintenance contributions could be afforded by the appellant by reference to the age pension.Appealed from FCA (FC).
Date: 11 April 2003. Special leave granted.
Catchwords
Trade practices – exclusionary provisions – market power – accessorial liability – two regional newspaper publishers allegedly agreed that one would withdraw its newspaper from the traditional market area of the other in return for that other not competing elsewhere – whether agreement constituted an arrangement or understanding a provision of which may have lessened competition in the market within meaning of Trade Practices Act 1974 (Cth) ("Trade Practices Act"), s 45(2)(a)(ii) – whether arrangement had purpose or effect of substantially lessening competition in market in contravention of Trade Practices Act, ss 45(2)(a)(ii) and 45(2)(b)(ii) – whether officers of publishers were knowingly concerned in contraventions of Trade Practices Act, ss 45(2)(a)(ii) and 45(2)(b)(ii) – whether agreement contained exclusionary provision within meaning of Trade Practices Act, s 4D – whether agreement involved contravention of Trade Practices Act, s 46(1).Appealed from FCA (FC). (2002) 118 FCR 236.
Application refused.
CIVIL
Special leave refused. WA SC (FC).
Matter settled. WA SC (FC).
Special leave refused. WA SC (FC).
Special leave refused. WA SC (FC).
Special leave refused. WA SC (FC).
Special leave refused. WA SC (FC).
Special leave refused. WA SC (FC).
CRIMINAL
Special leave refused. WA SC (CCA).
Special leave refused. WA SC (CCA`).
Sydney 9 May 2003
CIVIL
Special leave refused. NSW CA.
Matter stood over. FCA (FC).
Special leave refused. NSW CA.
Special leave refused. NSW CA.
Special leave refused. NSW CA.
Special leave refused. NSW CA.
Matter stood over. FCA (FC).
CRIMINAL
Special leave refused. NSW CCA.
Special leave refused. NSW CCA.
Special leave refused. NSW CCA.
Sydney 13 May 2003
CIVIL
Special leave refused. NSW CA.
Special leave refused. NSW CA.
Adjourned to a date to be fixed. FCA (FC).
CRIMINAL
Special leave refused. NSW CCA.
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