Judgments this week in the High Court of Australia

On Tuesday, 2 October 2012 the High Court will deliver judgment in a number of reserved cases at 10:15am.

First cab off the rank, and probably least interesting, is a judgment in relation to costs following the delivery of judgment in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 on 7 September 2012.

Twiggy Forrest will be hoping for two out of two when judgment is delivered in in Forrest v ASIC, an appeal against the Full Federal Court’s decision upholding an application by ASIC for civil penalties to be imposed on Forrest and Fortescue Metals.  The proceedings related to alleged misrepresentations about to contracts entered into with a number of Chinese companies for the construction of certain railway infrastructure for Fortescue Metal’s Pilbara iron ore project.  At first instance ASIC’s application was dismissed in one of its many spectacular failures in the courts in recent years.  At issue will be the extent to which, and the circumstances in which, a statement of opinion (and in particular an opinion as to the effect of a contract) will be held to be misleading.

A potentially significant judgment will be delivered in Barclay v Penberthy.  This case arose out of an aircraft accident in Western Australia on 11 August 2003.  Penberthy was the pilot of the aircraft, which had been chartered by Nautronix Holdings to conduct surveillance and aerial work in connection with marine technology it was developing.  Two passengers died and three were injured: all were employees of Nautronix.  At trial, it was held that the cause of the accident was a failure of an engine during takeoff, and the negligent handling of the aircraft in response to that failure.  The engine failure was caused by a faulty sleeve bearing.  The bearing was not the original bearing but a substitute that had been designed by Barclay, an aeronautical engineer.  As a result of the loss of the death and injury to Nautronix’s employees, its capacity to develop and commercially exploit the marine technology was inhibited, leading to a claim by Nautronix for pure economic loss.  At issue in the case is whether or not Penberthy and/or Barclay owed Nautronix a duty to exercise reasonable care to prevent it from suffering pure economic loss.  Determining that issue will involve an examination of the action by an employer for loss of services of its employees (per quod servitium amisit), and its interaction with the rule on Baker v Bolton (which held that at common law the death of a person causes solely emotional and pure economic loss to their dependants, neither of which sounds in damages – this case resulted in the enactment of Lord Campbell’s Act).

Finally, judgment will be delivered in Commissioner of Taxation v Qantas Airways Ltd.  This case raises the question of what is the taxable supply, if any, where a passenger has paid the fare for a flight but either cancels the reservation [see Seinfeld reference] or does not present themselves for carriage, and no refund is available or claimed: is it the reservation or the failed flight?

The 70^th birthday (aka the Constitutional age of senility) of Gummow J next Tuesday, 9 October 2012 means there is less than a week for judgments to be delivered in the remaining cases on which Gummow J sat, including:

• Plaintiff M47/2012 v DirectorGeneral of Security (adverse security assessments of asylum seekers)
• JT International SA vCommonwealth of Australia (tobacco plain packaging)
• International Litigation Partners Pte Ltd v Chameleon MiningNL (Receivers & Managers Appointed) (validity of litigation funding arrangement)
• Harbour Radio Pty Limited v Trad (defamation defence of substantial truth)