Saturday, February 11, 2012

Grants of Special Leave to Appeal in the High Court

On Friday, 10 February 2012 the High Court heard applications for special leave in Sydney and in Canberra (via video-ink with Brisbane.  There were four cases granted special leave in Sydney, and one in Brisbane.
The grant in Brisbane arises in an appeal from the Queensland Court of Appeal in R v Patel [2011] QCA 81 in which the notorious surgeon Dr Jayant Patel lost an appeal against conviction, and the Attorney General lost an appeal on sentence, relating to the death of three patients, and the grievous bodily harm of a fourth, following surgery performed by Dr Patel in 2003 and 2004.  The information currently available on the website does not enable a determination of what issues are covered by the grant of special leave, but the appeal to the Queensland Court of Appeal raised the very interesting question of whether a surgeon could be guilty of manslaughter by criminal negligence where only where there is negligence in the performance of a surgical procedure, or whether it also applies where the surgery is performed competently but the decision to operate or recommend to a patient was negligent.
The first grant in Sydney is from the decision of the Full Court of the Federal Court in Kutlu v Director of Professional Services Review [2011] FCAFC 94 in which it was held that the failure of the Health Minister to consult with the Australian Medical Association prior to the appointment of medical practitioners as members or directors of the Professional Services Review Panel (as required by statute) had the effect that those appointments were invalid, and any findings made by such a panel were invalid and of no effect and were not saved by the de facto officers doctrine at common law.
The second grant in Sydney is from the decision of the NSW Court of Appeal in Weinstock v Beck [2011] NSWCA 228 which raises a short but difficult question of statutory construction, as to whether there can be a “redeemable preference share” if there are no issued shares over which they take preference.  The case will make the difference between $8 and several million dollars to an estate administered by the Public Trustee.  It also emphasizes the care required when establishing a corporate structure for the purposes of avoiding taxes and duties!
The third grant in Sydney is from the decision of the Full Court of the Federal Court in Qantas Airways Ltd v Cmr of Taxation [2011] FCAFC 113 which asks the question what is the taxable supply, if any, where a passenger has paid the fare for a flight but cancels the reservation or does not present for carriage and no refund is available or claimed: is it the reservation or the failed flight?
The fourth grant in Sydney is from the decision of the NSW Court of Criminal Appeal in Burns v R [2011] NSWCCA 56, which upheld the appellant’s conviction on a charge of manslaughter in circumstances where she and her husband had either (or both) supplied methadone by injection to the deceased (manslaughter by unlawful and dangerous act) and had owed a duty of care to the deceased but failed to render assistance to the deceased when he became ill as a result of the effect of the methadone (manslaughter by criminal negligence).

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