Monday, October 8, 2012

Grants of Special Leave to Appeal to the High Court

In the Special Leave lists on Friday, 5 October 2012 the High Court granted Special Leave to Appeal in three cases, referred a fourth to the Full Court, and granted an Application for Removal into the High Court.
The first grant of Special Leave is in Wallace v Kam, an interesting failure to warn case.  The plaintiff suffered from a temporary condition known as bilateral femoral neuropraxia following spinal surgery.  This was caused by lying prone for an extended period during surgery, and was not a result of the procedure itself.  The plaintiff had not been warned of the risk of this condition, but the trial judge held that had he been warned he would have gone ahead with the surgery nonetheless.  However, the plaintiff also claimed that he had not been warned of the risk of paralysis as a result of damage to the spinal nerves from the surgery itself.  Had he been warned of that risk, he would not have proceeded with the surgery.  The trial judge and the Court of Appeal held that this risk was irrelevant, as it was not the risk that materialised, and the plaintiff was not entitled to recover damages for the risk that did materialise, because he was prepared to accept that risk.
The second grant of Special Leave is in Akiba v Commonwealth, an appeal from a decision of the Full Federal Court in which that Court held that Commonwealth and Queensland licensing regimes for commercial fishing extinguished the native title right to take fish and other marine life for commercial or trading purposes.
The third grant of Special Leave is in Maloney v The Queen, an appeal from a decision of the Queensland Court of Appeal upholding the validity of certain provisions of the Liquor Act 1992 (Qld) prohibiting the possession of alcohol on Palm Island as not being inconsistent with the Racial Discrimination Act 1975 (Cth).
The application for Special Leave to Appeal in Beckett v State of New South Wales was referred to the Full Court for hearing as if on appeal.  This case raises the question of whether, in a claim for malicious prosecution, the plaintiff (formerly known as Roseanne Catt) who was convicted but whose convictions were set aside following which the DPP decided not to proceed to a retrial, is required to plead (and prove) that she is innocent of the charges originally laid.
In the successful Application for Removal brought by the Queensland Chapter of the Finks in Pompano v Assistant Commissioner Condon, the High Court will consider the constitutional validity of the anti-gang laws enacted as part of the Criminal Organisation Act 2009 in Queensland.
* Links are to the decision appealed from.

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