Friday, March 2, 2012

Next week in the High Court of Australia

Next week the High Court will deliver judgments in two cases in which it is currently reserved.
The first, to be delivered on Wednesday, 7 March 2012 is the decision in Strong v Woolworths Ltd.  This is either an important case about the law of causation in negligence cases following the enactment of the Civil Liability Act 2002, or a mundane 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.  
The second, to be delivered on Thursday, 8 March 2012 is the decision in ALH Group Property Holdings Pty Limited v Chief Commissioner of State Revenue.  This case was only heard a few weeks ago, and addresses issues relating to the operation of the NSW Duties Act 1997, and whether or not a Deed of Consent an Assignment constituted an assignment of the benefit of a contract for the sale of land, or a novation of that contract.
Argument next week commences on Monday, 5 March 2012 with the further submissions in Harbour Radio Pty Ltd v Trad, which was adjourned after the original estimate proved to be insufficient.
On Tuesday and Wednesday, 6 and 7 March 2012 the Court will hear argument in a series of related cases that will either be reported as National Competition Council v Hamersley Iron Pty Ltd or as Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal.  This case involves Part IIIA of the Competition and Consumer Act 2010.  Part IIIA provides a regime whereby certain pieces of privately-owned infrastructure that cannot be economically duplicated can be “declared”, with the consequence that they must be made available for use by competitors. Upon an application by Fortescue Metals Group, privately-owned railway facilities in the Pilbara used by Hamersley Iron and Robe River Mining to transport iron ore were declared for a period of 20 years.  At issue in this appeal is which of two different methods (the “social cost approach” or the “private profitability approach”) should be used in determining whether or not “it would be uneconomical for anyone to develop another facility”.
Finally, on Thursday 8 March 2012, R v Getachew raises for consideration the burden of proof in relation to the mental element for the offence of rape where the complainant was asleep at the time of penetration, and the evidence is silent as to whether or not the accused knew the complainant was asleep, ought to have known the complainant was asleep, or thought the complainant was awake.

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