Next week in the High Court of Australia

Apart from the judgments referred to in the previous post, the High Court of Australia will hear argument in three cases next week, commencing on Tuesday, 13 November 2012.

The first is Commissioner of Taxation v Consolidated Media Holdings Ltd.  This case considers the proper constructions of section 159GZZZP of the Income Tax Assessment Act 1936 and its application to a buy-back of 29% of Consolidated Media’s shareholding in Crown Melbourne Ltd at a price of $1 billion. At issue is whether this should properly be treated as a capital gain, or whether it should be treated as a dividend (and therefore entitled to a rebate).

The second and third are cases relating to the same, valuable, family company.  In the first, Beck v Weinstock, at issue is whether or not a share can be a “preference share” for the purposes of the Corporations Act 2001 when the rights attaching to it do not confer any preference or priority over the rights attaching to other shares issued in the company.  In the second, Weinstock v Beck, at issue is the ambit of the power under section 1322(4) of the Corporations Act 2001 to validate the purported appointment of a company director by a person who was themselves not validly appointed as a director but who had been acting as a de facto director.  Both cases are salient lessons in the need to properly attend to the corporate governance of small but valuable family companies.

Forthcoming judgments in the High Court of Australia

On Wednesday, 14 November 2012 the High Court of Australia will deliver three judgments.

The first is in the related cases of Mansfield v The Queen and Kizon v The Queen.  These appeals address the issue of whether or not, in a prosecution for insider trading, it is necessary for the Crown to establish that the “inside information” possessed by the appellants is “truthful information” or “a factual reality”.

The second is in Cooper v The Queen, a case which considers whether or not the defence counsel’s failure to lead evidence of certain mental health service records which indicated the deceased suffered from a psychosis that could be exacerbated by drugs and alcohol, and the failure to cross-examine the deceased’s grandmother concerning the deceased’s mental health, gave rise to a miscarriage of justice.

The third is in Mills v Commissioner of Taxation, which considers whether the Commissioner was entitled to disallow certain imputation credits where the purpose of a scheme involving the issue of unsecured subordinated notes was to enable subscribers to obtain imputation credits, and the imputation credits were not simply a natural incident of the capital raising being undertaken.

On Thursday, 15 November 2012 the High Court will deliver judgment in Stanford v Stanford.  A somewhat tragic case, in issue is whether (and if so in what circumstances) the Family Court has jurisdiction to make an order for property settlement pursuant to section 79 of the Family Law Act 1975 where a marriage is still intact but where a physical separation has been forced upon the parties by reason of one of the parties’ health.  The proceedings were initiated by the wife’s daughters who asked that the former matrimonial home be sold so that the proceeds of sale could be spent on care for their mother. The appeal to the High Court raises numerous related issues, but central to the case is the constitutional question of the scope of the term “matrimonial cause” in placitum 51(xxii) of the Constitution.

Next week in the High Court of Australia

Apart from the delivery of judgments referred to in the previous post, the High Court of Australia will hear argument in three cases next week, commencing on Tuesday, 6 November 2012.

First up is TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the FederalCourt of Australia, a challenge to the power of the Federal Court to enforce arbitral awards made in accordance with the UNCITRAL Model Law on International Commercial Arbitration and pursuant to the International Arbitration Act 1974 (Cth).  In a nutshell, the argument is that by requiring the Federal Court to enforce an award notwithstanding the errors of law apparent on the face of the award and notwithstanding limitations placed on the parties’ arbitration agreement. By excluding the court’s traditional supervisory jurisdiction with respect to arbitral awards, the amendments made to the International Arbitration Act 1974 (Cth) in 2010 are said to substantially impair the institutional integrity of the Federal Court and impermissibly vest Commonwealth judicial power in arbitral tribunals by making their awards binding and conclusive.

Next is X7 v Australian Crime Commission.  This case is a challenge to the power of the Australia Crime Commission to conduct an examination of a person charged with an indictable offence where the examination concerns the subject matter of the offence so charged.  The challenge is mounted firstly as a question of the proper construction of the Australian Crime Commission Act 2002 (Cth), and if properly construed the Act does authorise such an examination whether the Act itself is, to that extent, invalid on the basis that it impermissibly interferes with the administration of justice in the exercise of Commonwealth judicial power and/or is contrary to section 80 of the Constitution.

Finally, the High Court will hear argument in Baini v The Queen.  This case considers whether the approach of the High Court in Weiss v The Queen to the application of the “proviso” in dismissing a criminal appeal in Victoria survives the introduction of section 276 of the Criminal Procedure Act 2009 (Vic).

Forthcoming judgments in the High Court of Australia

On Wednesday, 7 November 2012 the High Court of Australia will deliver two judgments.

The first is in the case of RCB v The Honourable Justice Colin James Forest.  This is the case in which the High Court rejected an application on behalf of four sisters who opposed their return to Italy under the Hague Convention pending determination of the custody dispute by Italian courts.

The second is in the case of Montevento Holdings Pty Ltd v Scaffidi.  The question in this case was whether or not it was open to an Appointor who was a beneficiary of a discretionary trust to appoint a Trustee where the Appointor/beneficiary had effective control of the office of Trustee.  While this is a question of construction of the particular trust deed, it may have broader ramifications for the drafting of discretionary family trusts generally.

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.