Monday, August 1, 2011

This week in the High Court of Australia

This week the High Court delivers judgment in two cases.

In Byrnes v Kendle certain land was owned by a husband: one half share he held in his own right and the other half share he held as trustee for his wife as tenant in common.  A son of the husband lived in the property for a period of five years.  He did not pay rent to the husband, a fact that was known to the wife.  The husband and wife separated, and the wife claimed the husband was in breach of his duty as trustee of her interest in the property by failing to collect the rent from his son.  She claimed that the husband should account to her for half of the rent that ought to have been paid by the son.  The Full Court in South Australia held that in letting out the property the husband was not under the same duties that a trustee who lets out trust property is under.  The lease to his son was carried out not as trustee but as one of two co-owners.  He was under no duty to collect the rent, and under no obligation therefore to account to the wife.  Even if he were, the wife had acquiesced in the breach in circumstances such that it would not be just and equitable to now require the husband to account for her share of the unpaid rent.

The other decision is Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd, a case dealing with the construction of, and interaction between, the Environmental Planning and Assessment Act 1979 (NSW) and the Ku-ring-gai Local Environmental Plan No 194.  I’m falling asleep just writing that, but at issue essentially is whether or not Dalcross Properties is entitled to operate a Private Hospital on certain land.

A summary of the first (but almost certainly not the second) of those judgments will be posted shortly after the delivery of judgment.

The High Court will also be hearing argument in three cases this week.

The first case to be heard, Wotton v State of Queensland concerns whether or not certain provisions of the Corrective Services Act 2006 (Qld) impermissibly burdens the freedom of communication of government and political matters, to wit, the appellant’s right to participate in public discussion of political and social problems affecting Aboriginal persons in Australia and problems in the prison system in Queensland that he experienced as a result of his incarceration as a result of his participation in the riots on Palm Island following the death of Mulrunji Doomadagee.  Released on parole, he was subject to numerous conditions that included that he:  not attend public meetings on Palm Island without the prior approval of the corrective services officer; be prohibited from speaking to and having any interaction whatsoever with the media; and, receive no direct or indirect payment or benefit to him, or through any members of his family, through any agent, through any spokesperson or through any person or entity negotiating or dealing on his behalf with the media.  No doubt the “Human Headline” will be watching this case with interest.

The second case to be heard, Moti v The Queen concerns the legitimacy of the trial of the former Attorney-General of the Solomon Islands on charges of sexual intercourse with a minor.  Although the offences were alleged to have occurred in Vanuatu and New Caledonia, Mr Moti was at the time an Australian citizen and therefore subject to the Commonwealth’s “sex tourism” laws.  Mr Moti seeks a stay of the proceedings on two grounds.  The first relates to payments made to the complainant by the Australian Federal Police. The complainant told the AFP that she wanted herself and her family taken to Australia until the end of the appellant’s trial or she would withdraw from the case. Her father told the AFP that his business in Vanuatu was adversely affected by the publicity and that the complainant and her family wanted to be taken to Australia and given financial support or the complainant would withdraw from the case. The AFP brought the complainant to Australia and, between February 2008 and November 2009, paid financial support in a monthly allowance in total of $67,576 to the complainant and $81,639 to her parents and brother in Vanuatu.  The second ground relates to an allegation that Mr Moti was brought to Australia, with the concurrence or connivance of Australian authorities, in disregard of proper extradition procedures and in breach of his rights under the Deportation Act of the Solomon Islands, and in breach of a court order made in the Solomon Islands

The third case to be heard, Strong v Woolworths Ltd may be an important case about the law of causation in negligence cases following the enactment of the Civil Liability Act 2002, or it may be a fizzer about what inferences can be drawn as to whether or not an adequate cleaning system would have prevented the plaintiff’s crutches from slipping on a potato chip on the floor of a shopping centre.  

No comments:

Post a Comment