[AustLII]

High Court of Australia
Bulletin 2003

No. 6

As at 26 August 2003


Published by the High Court of Australia Library


HIGH COURT

BULLETIN

2003

No. 6 As at 26 August 2003


Section 1 : Cases Reserved


Constitutional Law

Attorney General for Western Australia & Anor v Marquet (P114/2002)

Attorney General for Western Australia & Anor v Marquet (P115/2002)

Date heard: 5-6 August 2003. Judgment reserved.

Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ.

Catchwords

Constitutional law – “manner and form” requirements – Electoral Distribution Act 1947 (WA) (“the Act”), s 13 provides that it is not lawful to present for Royal Assent a Bill to amend the 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– whether Electoral Distribution Repeal Bill 2001 was a Bill to amend the Act – whether s 13 of the Act had been repealed by Acts Amendment (Constitution) Act 1978 (WA) – whether s 13 of the Act was a manner and form requirement that operated to bind Western Australian Parliament when enacting the Electoral Distribution Repeal Bill 2001 – whether prorogation of Western Australian Parliament since passage of Electoral Distribution Repeal Bill 2001 (WA) and Electoral Amendment Bill 2001 (WA) would render any appeal futile.

Appealed from WA CA. (2002) 26 WAR 201.

Shaw v Minister for Immigration and Multicultural Affairs (B99/2002)

Date heard: 17 June 2003. Judgment reserved.

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.

Catchwords

Constitutional law – Constitution, ss 51(xxvi) and 51(xix) – scope of immigration and emigration power – scope of aliens power – applicant arrived in Australia from United Kingdom on 17 July 1974 and was granted a permanent entry permit – at no stage did applicant apply for Australian citizenship or an Australian passport – by virtue of Migration Reform (Transitional Provisions) Regulations 1994 (Cth) reg 4, a permanent entry permit held by a non-citizen prior to 1 September 1994 continued in effect from that date as a transitional (permanent) visa – holder of a transitional (permanent) visa entitled to remain indefinitely in Australia subject to respondent’s power to cancel such a visa pursuant to Migration Act 1958 (Cth) (“Act”), s 501(2) – applicant’s transitional (permanent) visa cancelled pursuant to s 501(2) on basis that he had substantial criminal record and so did not pass character test – whether Act, s 501(2) was within legislative power of the Commonwealth to the extent that it authorised respondent to cancel applicant’s visa.

Cause removed from FCA.


Contract

Alexander & Ors (t/as Minter Ellison) v Perpetual Trustees WA Ltd & Anor (S509/2002)

Date heard: 18 June 2003. Judgment reserved.

Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Callinan JJ.

Catchwords

Contract – contribution – appellants instructed by respondents to advise on legal aspects and to act as agent in respect of large investment plan – both appellants and 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 Wrongs Act 1958 (Vic) (“Wrongs Act”), s 23B – whether Court of Appeal erred in holding that pursuant to Wrongs Act, s 24 it was 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.


Criminal Law

Gillard v The Queen (A200/2002)

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.

Maroney v The Queen (B101/2002)

Date heard: 24 June 2003. Judgment reserved.

Gleeson CJ, McHugh, Kirby, Callinan and Heydon JJ.

Catchwords

Criminal law – “supply” of drug – Drugs Misuse Act 1986 (Qld) (“Act”), ss 6 and 7 – appellant was inmate at correctional facility and arranged for M to supply him with heroin – Act, s 6 provides it is an offence of “aggravated supply” if a “person to whom [heroin] is supplied is within a correctional institution” – Act, 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 (A198/2003)

CMM v The Queen (A202/2003)

Date heard: 12-13 August 2003. Judgment reserved.

Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ.

Catchwords

Criminal law – statutory murder – accessorial liability – common purpose – causation – appellants 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 appellants are allegedly accessories to principal offender’s conduct – whether there was an intentional act of stabbing rather than production of a weapon to induce fear.

Appealed from SA CCA.


Defamation

Bashford v Information Australia (Newsletters) Pty Ltd (S393/2002)

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 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.

Fairfax Publications Pty Ltd v Rivkin (S353/2002)

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.

Rogers v Nationwide News Pty Limited (S417/2002)

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

Purvis (on behalf of Daniel Hoggan) v New South Wales (Department of Education and Training) & Anor (S423/ 2002)

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.


Equity

Romanos & Anor v Pentagold Investments Pty Limited & Anor (S356/2002)

Date heard: 13 March 2003. Judgment reserved.

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.

Tanwar Enterprises Pty Limited v Cauchi & Ors (S341/2002)

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.


Evidence

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors (B46/2002)

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.


Extradition

Truong v The Queen (M226/2002)

Date heard: 28 May 2003. Judgment reserved.

Gleeson CJ, McHugh, Gummow, Kirby, Callinan and Heydon JJ.

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 Extradition Act 1988 (Cth) (“Extradition Act”), s 42(a)(i) – consideration of scope and content of “speciality” in Extradition Act, s 42 – consideration of scope and content of Extradition Act, ss 40 and 41 – whether jurisdiction of state courts restricted by operation of consent pursuant to Extradition Act, s 42 – Constitution s 109.

Appealed from Vic CA. (2002) 5 VR 1.


Immigration

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (S395/2002)

Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (S396/2002)

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).

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (S258/2002)

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.

Re Refugee Review Tribunal & Anor; Ex parte Applicant S154/2002 (S154/2002)

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.


Legal Practitioners

A Solicitor v Council of the Law Society of New South Wales (S132/2002)

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.


Limitation of Actions

Blunden v Commonwealth of Australia (C6/2003)

Date heard: 6-7 August 2003. Judgment reserved.

Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ.

Catchwords

Limitation of actions – applicability of limitation of actions statutes to accident that occurred in international waters – HMAS Melbourne collided with HMAS Voyager on high seas 20 miles off the Australian coast in 1964 – plaintiff was a crew member of one vessel who instituted proceedings for damages against defendant (“Commonwealth”) in Supreme Court of the Australian Capital Territory – Commonwealth claimed plaintiff’s action was statute barred by Imperial Act 21, James 1 Chapter 16, s 3 – alternatively, Commonwealth claimed action was statute barred by Limitation Act 1985 (ACT), s 11 or Limitation Act 1969 (ACT), s 14(1) - whether no statute of limitations applicable because accident occurred in international waters - whether any implications to be drawn from Constitution, Ch III or s 118 or Australia's federal system - whether principles in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 are of relevance.

Cause removed from ACT SC.


Negligence

Dovuro Pty Limited v Wilkins & Ors (S29/2001)

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.

Hoyts Pty Ltd v Burns (S450/2002)

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.

Woolcock Street Investments Pty Ltd v CDG Pty Ltd (B19/2003)

Date heard: 23-24 June 2003. Judgment reserved.

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.

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 appellant 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.


Practice and Procedure

Rothmans of Pall Mall (Australia) Ltd v Western Australia & Anor (P62/2002)

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).

Russo & Anor v Aiello (S292/2002)

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.

Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (S216/2002)

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.


Securities

Gattellaro & Anor v Westpac Banking Corporation (S77/2003)

Date heard: 19 June 2003. Judgment reserved.

Gleeson CJ, McHugh, Kirby, Hayne, and Heydon JJ.

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 inference can be drawn that 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 – whether onus of proof regarding inference is borne by appellants or respondents.

Appealed from NSW CA.


Taxation

Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (B71/2002)

Date heard: 6 February 2003. Judgment reserved.

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon 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).


Trade Practices

Rural Press Limited v Australian Competition and Consumer Commission (A197/2003)

Australian Competition and Consumer Commission v Rural Press Limited (A203/2003)

Date heard: 13-14 August 2003. Judgment reserved.

Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ.

Catchwords

Trade practices – exclusionary provisions – market power – scope of market - 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.

Visy Paper Pty Ltd & Ors v Australian Competition and Consumer Commission (S209/2002)

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.


Workers Compensation

Dossett v T.K.J. Nominees Pty Ltd (P118/2002)

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).


Section 2 : Section 40 Removals


Immigration

Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji; Ex Parte Attorney-General of the Commonwealth (A241/2003)

Date heard: 15 August 2003. Cause removed.

Catchwords

Immigration – detention of unlawful non-citizens – legality of detention where there is no real prospect of removal – respondent an unlawful non-citizen Iraqi national who had fled to Syria – upon arriving in Australia, appellant was immediately placed in immigration detention – protection visa application lodged by appellant refused and an application for review of that decision by Refugee Review Tribunal was dismissed – applications lodged by appellant pursuant to s 417 of the Migration Act 1958 (Cth) (“Migration Act”) were also dismissed – appellant then requested that he be removed from Australia back to Syria – removal of appellant back to Syria was not reasonably practicable and there was no prospect of it becoming so in reasonably foreseeable future – whether appellant was unlawfully detained in such circumstances – whether Migration Act, s 189 authorised continuing detention of appellant – whether appellant entitled to writ of habeas corpus – whether constitutional considerations compel recognition of a temporal restriction on periods of immigration detention pursuant to Migration Act, ss 196 and 198.

Section 40 removal from FCA (FC).

SHDB v Godwin & Ors; Ex Parte The Attorney-General for the Commonwealth of Australia (A242/2003)

Date heard: 15 August 2003. Cause removed.

Catchwords

Immigration – detention of unlawful non-citizens – legality of detention where there is no real prospect of removal – appellant an unlawful non-citizen originally from Kuwait – upon arriving in Australia, appellant placed in immigration detention – protection visa application lodged by appellant refused and applications for review of that decision were dismissed – appellant then consented to removal from Australia back to either Kuwait or Gaza – removal of appellant back to Kuwait or Gaza was not reasonably practicable and there was no prospect of it becoming so in reasonably foreseeable future – whether appellant was unlawfully detained in such circumstances – whether Migration Act 1958 (Cth), s 189 authorised continuing detention of appellant – whether appellant entitled to writ of Habeas Corpus – whether constitutional considerations compel recognition of a temporal restriction on periods of immigration detention pursuant to Migration Act 1958 (Cth), ss 196 and 198.

Section 40 removed from FCA (FC).


Section 3 : Cases Granted Special Leave


Administrative Law

North Australian Aboriginal Legal Aid Service Inc. v Bradley (D7/2002)

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).


Appeal

Ryan v Pledge & Ors (S171/2002 and S172/2002)

Pledge v Roads & Traffic Authority & Ors (S173/2002 and S174/2002)

Date heard: 14 March 2003. Special leave granted.

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

Bayside City Council & Ors v Telstra Corporation Limited & Ors (S162/2002)

Moreland City Council v Optus Vision Pty Limited & Ors (S163/2002)

Warringah Council v Optus Vision Pty Limited & Ors (S166/2002)

Hurstville City Council v Telstra Corporation Limited & Ors (S167/2002)

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.

Coleman v Power & Ors (B6/2002)

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.

Paliflex Pty Limited v Chief Commissioner of State Revenue (S456/2002)

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 - appellant acquired real property and became its registered proprietor in 1998 – respondent issued a notice of assessment for land tax to appellant 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.

Silbert (as Executor of the Estate of Stephen Retteghy) v Director of Public Prosecutions for Western Australia (P16/2002)

Date heard: 9 May 2003. Referred to the Full Court.

Catchwords

Constitutional law – judicial power – appellant 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 WA CA. (2002) 25 WAR 330.


Contract

Siemens Limited v Schenker International (Australia) Pty Ltd & Anor (S241/2002)

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 appellants and respondent, first respondent agreed to transport appellant’s goods from Berlin airport to second respondent’s bonded store in Melbourne – first respondent issued standard air waybill to appellant 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.


Criminal Law

Baker v The Queen (S240/2002)

Date heard: 20 June 2003. Special leave granted.

Catchwords

Criminal law - sentence – appellant convicted of murder, conspiracy to murder and malicious wounding in 1974 – in imposing penal servitude for life upon appellant, sentencing judge stated that appellant should never be released from custody – prior to 9 May 1997, a person sentenced to penal servitude for life in New South Wales could apply for determination of a minimum and additional term of imprisonment if that person had served 8 years of a life sentence – Sentencing Legislation Further Amendment Act 1997 (NSW) (“the Act”) provided that a person sentenced to penal servitude for life could only apply for determination of a minimum and additional term of imprisonment if that person had served 20 years of a life sentence and Supreme Court considered that “special reasons” justified the making of such a determination – whether the Act was invalid to the extent that it purported to vest functions in the Supreme Court incompatible with the exercise of Commonwealth’s judicial power.

Appealed from NSW CA.

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 – appellant 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 statutory defence of mistaken fact pursuant to Criminal Code (WA) s 24.

Appealed from WASC (FC). [2002] 26 WAR 289.

Pinkstone v The Queen (P25/2003)

Date heard: 8 August 2003. Special leave granted.

Catchwords

Criminal law – liability for “supply” of prohibited drug where supply did not occur in manner intended – applicant consigned a box which he knew to contain methylamphetamine for transport from Sydney to Perth by Ansett Air Cargo – applicant entered into contract with Ansett Air Cargo staff whereby they agreed to provide box to its intended recipient in Perth - police in Sydney intercepted box in Sydney but pursuant to an arrangement with Ansett Air Cargo staff and Perth police effected its delivery by providing it to applicant’s intended recipient in Perth – applicant subsequently charged with supply of prohibited drug – whether police intervention, which involved police taking possession of box, displaced applicant’s contract with Ansett Air cargo as intended cause of supply – whether applicant should have been charged with attempted supply of prohibited drug.

Appealed from WA CA.


Damages

Victims Compensation Fund Corporation v Brown & Ors (S232 / 2002)

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.


Evidence

Kelly v The Queen (H1/2002)

Date heard: 14 March 2003. Special leave granted.

Catchwords

Evidence – admission – appellant convicted of murder – shortly after being officially video-interviewed following arrest, appellant volunteered representation to police detective – representation alleged not to have been made in course of official questioning but when appellant 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.

TLC Consulting Services Pty Ltd v White (B14/2003)

Date heard: 25 June 2003. Special leave granted.

Catchwords

Evidence – warrants – statutory powers of search, examination, possession and seizure in relation to information stored on computer – appellant conducts an introduction agency – respondent is a senior investigations officer employed by Office of Fair Trading – pursuant to Fair Trading Act 1989 (Qld) (“Act”), s 89(3) respondent sought issue of, and was granted, a warrant to inspect appellant’s premises with a view to possible prosecution for contravention of Act – in executing warrant, respondent seized computer server containing data recording extensive personal information of appellant’s clients – whether computer server was a “record of information” which respondent was entitled to seize – whether warrant entitled respondent to seize computer containing information that was irrelevant to the warrant’s purpose, subject to legal professional privilege or protected by the Privacy Act 1988 (Cth) – whether respondent’s warrant valid on its face.

Appealed from Qld CA.


Immigration

Applicant S v Minister for Immigration and Multicultural Affairs (P88/2002)

Date heard: 8 August 2003. Special leave granted.

Catchwords

Immigration – application for refugee status – identification of “particular social group” – applicant an Afghani national who claimed to have left Afghanistan because Taliban had attempted to recruit him for military service – decision to refuse applicant protection visa affirmed by Refugee Review Tribunal (“RRT”) in spite of uncontested evidence that Taliban had attempted to recruit him and generally tried to recruit young, able-bodied men of his age – whether identification of a particular social group required evidence that young, able-bodied men were perceived as such a particular social group in Afghani society – whether, if such evidence was required, RRT should have found that Afghani society perceived young, able-bodied men as comprising a particular social group

Appealed from FCA (FC).

Behrooz v The Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (A367/2002)

Date heard: 15 August 2003. Special leave granted.

Catchwords

Immigration – immigration detention – relevance of conditions of detention to validity of detention – applicants were unlawful non-citizens detained at Woomera Immigration Reception and Processing Centre (“Woomera”) – following their escape from Woomera, applicants were recaptured and charged with offence of escape from “immigration detention” – applicants raised defence that conditions at Woomera were so harsh that their detention there was not valid and that they therefore could not be convicted of escape from “immigration detention” – primary judge held that such a defence was unknown to law – whether conditions in which unlawful non-citizen is detained render that detention unlawful because it exceeds what could reasonably be regarded as necessary for administrative purposes of Migration Act 1958 (Cth).

Appealed from SA SC. (2003) 172 FLR 9.

Minister for Immigration and Multicultural and Indigenous Affairs v B and Anor (S246/2003)

Date heard: Certificate pursuant to s 95(b) of the Family Law Act 1975 (Cth) granted by Family Court of Australia on 8 July 2003.

Catchwords

Immigration – detention and removal of unlawful non-citizen children - jurisdiction of Family Court of Australia (“Family Court”) to make orders relating to detention and removal – respondent children (“children”) (by their mother as next friend) sought orders from Family Court that appellant release them from immigration detention – orders sought on basis that children’s continuing detention was harmful to their welfare - whether Family Court, in exercise of its welfare jurisdiction and injunctive powers, had power to make orders to release children from immigration detention - whether Family Court had jurisdiction to make any other type of order for protection of children – whether detention of unlawful non-citizen children is beyond authority conferred by Migration Act 1958 (Cth) when detention is protracted or indefinite – whether detention of children is “indefinite” where they lack capacity to request removal from Australia.

Appealed from FamCA (FC).

Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S217/2002 (S217/2002)

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).

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (A186/2003)

Date heard: 15 August 2003. Special leave granted.

Catchwords

Immigration – scope of judicial review – nature of “no evidence” ground in judicial review – issue of competency where respondent found to suffer psychiatric condition – respondent an Iranian national who applied for a protection visa – RRT found respondent highly likely to be suffering from Post Traumatic Stress Disorder (“PTSD”) but went on to dismiss his application in any event – Federal Court found that there was no evidence that respondent suffered from PTSD and that RRT had incorrectly assessed his evidence on the basis that he did – Federal Court also found that, having found that respondent suffered from PTSD, it was incumbent on RRT to ensure that he could continue to participate in proceedings – whether finding of “no evidence” of PTSD constituted a reviewable error pursuant to Judiciary Act 1903 (Cth), s 39B – whether RRT was obliged to make further inquiries in relation to possibility that respondent suffered PTSD – whether Migration Act 1958 (Cth) implied a competence requirement precluding a person suffering PTSD from taking part in proceedings – whether RRT fell into jurisdictional error of a type identified in Plaintiff s157/2002 v Commonwealth of Australia (2003) 195 ALR 24.

Appealed from FCA.

V872/00A v Minister for Immigration and Multicultural Affairs (M114/2002)

V854/00A v Minister for Immigration and Multicultural Affairs (M116/2002)

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 appellant for refugee status – whether Australia’s protection obligations will be satisfied if there is a “practical likelihood” that a putative appellant for refugee status will be given effective protection in a third country.

Appealed from FCA (FC). (2003) 122 FCR 57.


Industrial Relations

Electrolux Home Products Pty Limited v The Australian Workers’ Union & Ors (A122/2002, A123/2002 and S246/2002)

Date heard: 9 May 2003. Special leave granted in all matters.

Catchwords

Industrial relations – characterisation of “industrial action” – appellant 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 appellant’s manufacturing plants – negotiations did not lead to agreement in respect of a number of issues – one of those issues was whether appellant 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).


Insurance Law

Insurance Commission of Western Australia v Container Handlers Pty Ltd & Ors (P53/2002)

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 appellant – 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.


Intellectual Property

Network Ten Pty Limited v TCN Channel Nine Pty Limited & Ors (S213/2002)

Date heard: 11 April 2003. Special leave granted.

Catchwords

Intellectual property – copyright – nature of copyright for re-broadcasted copyright material – appellant’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.


Jurisdiction

BHP Billiton Limited v Schultz (S385/2002)

Date heard: 14 March 2003. Special leave granted.

Catchwords

Jurisdiction – determination of appropriate jurisdiction – respondent a former employee of appellant who claims to have contracted asbestos-related injuries in course of employment – proceedings commenced by respondent in Dust Diseases Tribunal (“DDT”) – appellant 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.


Negligence

Andar Transport Pty Ltd v Brambles Limited (M178/2002)

Date heard: 20 June 2003. Special leave granted .

Catchwords

Negligence – claim for indemnity or contribution made against third party – appellant employed plaintiff (“Wail”) in first instance proceedings as a truck driver – delivery services were provided by appellant to respondent pursuant to a written agreement commencing on 4 April 1990 – written agreement was expressed to run for a term of 3 years and contained an indemnity by appellant for benefit of respondent in specified circumstances – Wail was injured in July 1993 while carrying out work for the respondent on behalf of the appellant – proceedings for damages subsequently commenced by Wail against respondent – appellant was joined by respondent as a third party to proceedings – respondent sought indemnity pursuant to the written agreement, or alternatively contribution, against appellant – whether indemnity clause contained in written agreement existed in July 1993 so as to apply to Wail’s injury – whether fault of Wail and appellant was coextensive in causing Wail’s injury with result that appellant would not be liable to Wail for breach of duty.

Appealed from Vic CA. (2002) 5 VR 169.

Cole v Hurst & Ors (B35/2002)

Date heard: 25 June 2003. Special leave granted.

Catchwords

Negligence – contribution and indemnification – relationship between tort and contractual liability – appellant conducted pizza shop in premises rented from third respondents – first respondent was plumber and gas fitter called by appellant to fix a faulty oven – oven required replacement of faulty gas valve - because of unavailability of a failsafe gas valve, first respondent installed manual gas valve into oven in the interim – manual gas valve subsequently left open by appellant and explosion ensued causing damage to third respondents’ premises – proceedings commenced by third respondents against appellant for damages – claim for indemnity or contribution brought by appellant against first respondent framed in contract and tort – Law Reform Act 1995 (Qld) (“Act”), s 6(c) contemplated contribution from a person liable for same damage “whether as a joint tortfeasor or otherwise” - whether, in circumstances where first respondent was liable in contract to appellant for damages payable by appellant to third respondents, the effect of s 6(c) was that damages payable by first respondent to appellant were to be determined wholly by reference to Act, s 7.

Appealed from Qld CA.

Cole v South Tweed Heads Rugby League Football Club Limited & Anor (S261/2002)

Date heard: 20 June 2003. Special leave granted.

Catchwords

Negligence – scope of duty of care – appellant attended premises operated by first respondent (“Club”) during a morning when free alcoholic beverages were made available – after free supply ceased, appellant remained at Club and purchased further alcoholic beverages into afternoon – during afternoon appellant was refused service at Club bar on grounds of intoxication – appellant left Club after being ejected some hours later – prior to appellant leaving, Club staff offered to call taxi for her and offered use of Club’s bus and driver – these offers were refused after a companion of appellant advised Club manager that he would look after her – appellant subsequently seriously injured when struck by a car while standing on a roadway approximately 100 metres from Club’s entrance – whether scope of duty of care required Club to cease serving alcohol to appellant when it knew that it was likely that she would become intoxicated or when she was obviously intoxicated – whether there was sufficient evidence to establish a breach of the duty thus formulated – whether appellant’s voluntary choice in drinking until intoxication precluded Club’s legal responsibility for her injuries – whether Club’s offer of alternative transport discharged any duty it had to ensure appellant’s safety where such refusal related to appellant’s state of intoxication at time.

Appealed from NSW CA. (2002) 55 NSWLR 113.


Planning Law

Kettering Pty Ltd v Noosa Shire Council (B17/2002 and B50/2002)

Date: 25 June 2003. Special leave granted in both matters.

Catchwords

Planning law - compensation for alleged diminution in value of land – appellant owned land in Noosa – in 1992, town planning scheme was amended by a Development Control Plan (“DCP”) – effect of DCP was allegedly to constrain development potential of appellant’s land thereby diminishing its market value – appellant sought compensation from respondent pursuant to Local Government (Planning and Environment) Act 1990 (Qld) (“Act”), s 3.5(1) – pursuant to Act, s 3.5(4)(d), compensation was not payable where land was affected by a planning scheme which had the effect of prohibiting or restricting “use of land or erection or use of building or other structure thereon for a particular purpose” – Queensland Court of Appeal ordered that Act, s 3.5(4)(d) applied so that no compensation was payable to appellant - whether Act, s 3.5(4) applied to DCP so as to preclude appellant’s claim for compensation – whether Queensland Court of Appeal exceeded or erred in the exercise of its jurisdiction where it determined an issue that had been reserved for further determination at first instance and was not subject to appeal in Court of Appeal.

Appealed from Qld CA.


Practice and Procedure

In the Matter of an Appeal by Gaye Alexandra Mary Luck (M11/2001)

Date: 11 December 2002. Matter adjourned.

Catchwords

Practice and procedure – direction had been made pursuant to High Court Rules, O 58 r 4(3) that Registrar refuse to issue process without the leave of a Justice first had and obtained – application for leave to issue writ of summons and statement of claim subsequently refused by single Justice – whether writ of summons or statement of claim discloses cause of action against any defendant.

Appeal from Single Justice.


Real Property

NTL Australia Pty Limited v Minister for Land and Water Conservation (S227/2002)

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 appellant without conveyance, transfer or assignment – whether vesting in the appellant, as successor to the Commonwealth, of permissive occupancy brought it to an end.

Appealed from NSW CA.


Sentencing

Johnson v The Queen (P50/2002)

Date: 8 August 2003. Special leave granted.

Catchwords

Sentencing – totality principle - imposition of sentences for drug offences – principles of sentencing where actus reus gave rise to two separate offences – applicant took possession of a single package containing inert substances substituted for ecstasy and cocaine – applicant then pleaded guilty to attempting to obtain commercial quantities of ecstasy and cocaine – sentencing judge then formulated separate sentences for each of those offences and ordered a total sentence reflecting their cumulation – whether sentencing judge gave proper consideration to sentencing provisions of Pt 1B of the Crimes Act 1914 (Cth) - whether sentencing judge misconstrued or misapplied “one transaction” rule of sentencing – whether sentencing judge breached totality principle in circumstances of case.

Appealed from WA CA. (2002) 26 WAR 336.

Putland v The Queen (D4/2003)

Date heard: 15 August 2003. Special leave granted.

Catchwords

Sentencing – power of Superior Courts to impose aggregate sentences – applicant pleaded guilty to multiple Federal offences of defrauding Commissioner of Taxation, disposing of property with intent to defraud his creditors during bankruptcy, and carrying on business as undischarged bankrupt – sentencing Judge imposed aggregate sentence of 4 years’ imprisonment, ordering that applicant be released after serving 12 months upon entering good behaviour bond – whether Crimes Act 1914 (Cth), Part 1B and common law impliedly excluded aggregate sentencing upon conviction on indictment for multiple Federal offences – whether Sentencing Act (NT), s 52 which permitted Northern Territory courts to impose aggregate sentences upon conviction for more than one offence, could be “picked up” by operation of Judiciary Act 1903 (Cth), ss 68(1) or 79 in this case - whether recognition of a power to impose an aggregate sentence upon Federal offenders by the Supreme Court of Northern Territory would lead to unequal treatment of equals throughout Australia giving rise to discrimination contrary to the Constitution.

Appealed from NT CCA.


Taxation

Commissioner of Taxation v Hart & Anor (S279/2001)

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). (2002) 121 FCR 206.


Trade Practices

Murphy & Anor v Overton Investments (S138/2001)

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).


Section 4: Cases Refused Special Leave


Canberra 8 August 2003

CIVIL

Agricultural & General Aviation Pty Ltd v Aerodata Holdings Ltd & Anor (P43 of 2002)

Special leave refused. WASC (FC).

Applicant P53/2002 v Minister for Immigration and Multicultural Affairs (P53 of 2002)

Special leave refused. FCA (FC).

BGC (Australia) Pty Ltd v Builders’ Registration Board of Western Australia (P55 of 2002)

Matter discontinued. FCA (FC).

Brandsma & Crockett Pty Ltd & Anor v Heindal Pty Ltd & Ors (P48 of 2002)

Special leave refused.

WACK v Minister for Immigration and Multicultural Affairs (P54 of 2002)

Special leave refused. FCA (FC).

WACW v Minister for Immigration and Multicultural Affairs (P56 of 2002)

Special leave refused. FCA (FC).

WADW v Minister for Immigration and Multicultural Affairs (P47 of 2002)

Special leave refused. FCA (FC).

WAEK v Minister for Immigration and Multicultural Affairs (P49 of 2002)

Special leave refused. FCA (FC).


Sydney 8 August 2003

CIVIL

Applicant S96/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (S96 of 2002)

Special leave refused. FCA (FC).

Baban v Minister for Immigration and Multicultural Affairs (S236 of 2002)

Special leave refused. FCA (FC).

Blacktown City Council v Wilkie & Ors (S344 of 2002)

Special leave refused. NSW CA.

Endovasive Pty Limited v Bright & Anor (S326 of 2002)

Femcare Limited v Bright & Anor (S327 of 2002)

Matter discontinued. FCA (FC).

Femcare Limited v Bright & Anor (S110 of 2000)

Matter discontinued. FCA (FC).

Madigan v Commonwealth Bank of Australia (S268 of 2002)

Special leave refused. NSW CA.

NADR of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (S363 of 2002)

Special leave refused. FCA (FC).

CRIMINAL

H v The Queen (S345 of 2002)

Special leave refused. NSW CCA.

Joiner v The Queen (S335 of 2002)

Special leave refused. NSW CCA.

RWO v The Queen (S354 of 2002)

Special leave refused. NSW CCA.


Adelaide 14 August 2003

CIVIL

Boffo v NC Nomines Pty Ltd & Anor (A46 of 2003)

Special leave refused. SA SC (FC).

Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Fund Pty Ltd & Anor (A135 of 2003)

Special leave refused. FCA (FC).

Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (A206 of 2003)

Special leave refused. FCA (FC).

Minister for Immigration and Multicultural and Indigenous Affairs v SGKB (A195 of 2003)

Special leave refused. FCA (FC).

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (A186 of 2003)

Special leave refused. FCA (FC).

Moore-McQuillan v Workcover Corporation SA (A8 of 2002)

Special leave refused. SA SC (FC).

Moore-McQuillan v Workcover Corporation SA (A125 of 2002)

Special leave refused. SA SC (FC).

Moore-McQuillan v Police SA (A81 of 2002)

Special leave refused. SA SC (FC).

Moore-McQuillan v SA Police (A191 of 2002)

Moore-McQuillan v Police SA (A192/2002)

Special leave refused. SA SC (FC).

Reid v Department of Family and Community Services (A40 of 2002)

Special leave refused. FCA (FC).

Rivers v Rivers & Ors (A24 of 2003)

Special leave refused. SA SC (FC).

Roosters Club Inc v Northern Tavern Pty Ltd & Anor (A199 of 2002)

Special leave refused. SA SC (FC).

SGFB v Minister for Immigration and Multicultural and Indigenous Affairs (A26 of 2003)

Special leave refused. FCA (FC).

Sheahan v Birdseye (A318 of 2002)

Special leave refused. FCA.

Sheahan v O’Brien & Anor (A298 of 2002)

Sheahan v O’Brien & Anor (A373 of 2002)

Special leave refused. FCA.

Smith v The State of South Australia & Anor (A319 of 2002)

Special leave refused. SA SC (FC).

Tazroo v Police (SA) (A368 of 2002)

Special leave refused. SA SC (FC).

WABG v Minister for Immigration and Multicultural Affairs (P87 of 2002)

Special leave refused. FCA.

Wayland v Tonkin (A2355 of 2002)

Special leave refused. SA SC (FC).

CRIMINAL

Caplikas v The Queen (A310 of 2002)

Special leave refused. SA CCA.


Adelaide 15 August 2003

Belacho v Tolstoshev (A141 of 2003)

Application dismissed as incompetent. SA SC (FC).

Burke v Attorney-General of South Australia (A12 of 2002)

Burke v Attorney-General of South Australia (A229 of 2003)

Extension of time refused.

Cheetham v Heuzenroeder (A6 of 2002)

Special leave refused. SA SC (FC).

Finkiotis &Anor v Sandhurst Trustees Ltd (A1 of 2001)

Adjourned to a date to be fixed. FCA (FC).

In the Matter of an Application for Removal by Phillip Damian Burke

(A6 of 2002)

In the Matter of an Application by Phillip Damian Burke

(A228 of 2003)

Applications dismissed. SA SC (FC).


Canberra 21 August 2003

Applicant NACJ of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (S20 of 2003)

Special leave refused. FCA (FC).

Ferreira v Zebra Stoneworks Limited (S24 of 2003)

Special leave refused. NSW CA.

NAAT of 2002 & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (S27 of 2003)

Adjourned to a date to be fixed. FCA.

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end