This week in the High Court of Australia

The High Court will hear argument in two cases this week.

The first, commencing Tuesday, 13 August 2013 is Clark v Macourt.  In this case Clark and a company known as St George Fertility Clinic Pty Ltd carried on business providing assisted reproduction technology services in Sydney.  The appellant and St George entered into a deed in which the appellant purchased the business carried on by St George, along with various assets of the business.  Macourt was a party to the deed as guarantor of the obligations of St George.  The assets of the business that were sold to Clark included frozen sperm.  Of the 3,513 straws of sperm only 504 were useable.  Because of her inability to use the majority of the sperm supplied by St George, Clark ceased making payments due under the deed.  St George commenced proceedings for the balance of the purchase price, and Clark cross-claimed for damages for breach of contract relating to the unsuitability of the sperm sold by St George. St George (and Macourt) ultimately conceded the breach of contract.  At issue in the proceedings is how damages are to be assessed. This raises important issues as to the relevance of the regulatory regime in which assisted reproductive technology services are provided, whether damages are to be assessed by reference to the cost of replacement sperm or alternatively the value of the St George sperm had she been able to use it, and the extent to which payments made by patients mitigated her loss.

The second appeal, commencing on Wednesday, 14 August 2013 is Wingfoot Australia Partners Pty Ltd v Kocak.  The main issues in this appeal are whether or not a medical panel  giving an opinion under section 68 of the Victorian Accident Compensation Act 1985 is required to give reasons for its opinion (and if s what is the extent of that obligation), and whether or not inadequate reasons constitute a ground for quashing the opinion for error of law on the face of the record?

Judgments this week in the High Court of Australia

On Wednesday, 14 August 2013 the High Court will deliver judgment in two cases.

The first is Legal Services Board v Gillespie-Jones, an appeal by the Victorian Legal Services Board against a decision of the Victorian Court of Appeal in which it held that where a solicitor misappropriates trust moneys paid to the solicitor by a client to cover the client’s costs of litigation (including fees charged by counsel), a barrister who had been retained by the solicitor to appear for the client was entitled to compensation out of the Fidelity Fund established under the Legal Profession Act 2004 (Vic) in respect of the barrister’s unpaid fees. 

The second is Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd in which the Court will consider the question of whether employer-provided accommodation and transport to workers in remote worksites constitutes a “payment” within the meaning of section 470 of the Fair Work Act 2009 (in which case, the employer was required to withhold the accommodation and transport while the workers were engaged in protected industrial action).

Judgments next week in the High Court of Australia

On Wednesday, 7 August 2013 the High Court will deliver judgment in two outstanding cases.

The first is judgment in Leo Akiba (on behalf of the Torres Strait Regional Sea Claims Group) v Commonwealth of Australia.  These proceedings arise out of a native title determination application filed on behalf of the Torres Strait Regional Seas Claim Group.  The application was opposed by the Commonwealth, the State of Queensland, a large group of people and companies collectively described as “The Commercial Fishing Parties” and a small number of parties from Papua New Guinea.  The application sought a determination of native title rights and interests in a large part of the sea area of the Torres Strait.  The occupation of the region by the Seas Claim Group and their ancestors was of an essentially maritime character.  The sea is an integral presence in the lives and livelihood of the Islander communities that comprise the Seas Claim Group. At issue is whether or not there is a single Torres Strait Island society for the purposes of the Native Title Act 1993, whether rights held under traditional laws and customs on the basis of a ‘reciprocal relationship’ with a holder of ‘occupation based rights’ are native title rights or interests for the purposes of the Act, and whether or not the laws of The Commonwealth and the State of Queensland governing fishing rights had extinguished such native title as the plaintiff’s might otherwise have held.

The second is judgment in Fortescue Metals Group Limited v Commonwealth of Australia, the challenge by Andrew Forrest to the Commonwealth’s Mineral Resources Rent Tax, more common known as the Mining Tax.

Next week in the High Court of Australia

The High Court of Australia returns from its July recess next week, and will hear argument in 5 appeals.

The first two appeals, to be heard on 6 August 2013, are Munda v State of Western Australia and Bugmy v The Queen. In addition to raising general issues as to the proper approach to be taken in determining a Crown appeal against sentence on the grounds of “manifest inadequacy”.  The appeals also give rise to more specific issues relating to the sentencing of aboriginal offenders, and the relevance of the social deprivation and systemic alcohol abuse and other forms of disadvantage experienced by aboriginal offenders.

On 7 August 2013 the Court will hear argument in Comcare v PVYW.  This appeal raises a relatively narrow question of the meaning of the phrase “in the course of employment” commonly used in workers compensation statutes.  The case itself has gained a degree of notoriety because of the particular facts of the case. The worker was required to travel to a country town by her employer.  She arranged to meet a male friend for dinner, following which they returned to her hotel room and had sex.  In doing so, a light fitting mounted above the bed was pulled from the wall and fell on the worker’s face, resulting in physical and psychological injury. The question for determination is whether or not her injury arose in the course of her employment.

On 8 August 2013 the Court will hear argument in Diehm v Director of Public Prosecutions (Nauru).  This is an appeal from the Supreme Court of Nauru in which the appellants challenge their convictions in relation to a sexual assault on the grounds that the failure by the prosecution to call certain witnesses (and the trial judge’s failure to call those witnesses).

On 9 August 2013 the Court will hear argument in Willmott Growers Group Inc v Willmott Forests Ltd.  In this case the Court will consider the long-standing power of a liquidator to disclaim onerous property.  The liquidators of the respondent company seek to disclaim leases issued by it in favour of members of various forestry investment schemes.  This is to enable land owned by the respondent company (its only significant asset) to be sold, which commercially can only occur if the land is unencumbered by the leases.  The appellant growers wish to continue to conduct the forestry investment schemes on the land, having already invested between 18 and 23 years in the schemes.