Monday, May 7, 2012

This week in the High Court of Australia

This week there are three cases being heard by the High Court.
The first, commencing on Tuesday, 8 May 2012 is PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission.  This case arises out of proceedings commenced by the ACC against Garuda and Malaysian Airlines alleging that each was a party to price fixing, market sharing and anti-competitive cartels contrary to section 45 of the Trade Practices Act 1974.  Garuda claimed that it was entitled to immunity from the jurisdiction of Australian courts under the Foreign States Immunities Act 1985.  Garuda is owned as to 95.5% by the Indonesian Government, and 4 out of 5 members of its Board of Commissioners were at the relevant time senior Indonesian government officials.  As such, Garuda would ordinarily be entitled to the immunity from the jurisdiction of Australian courts conferred on foreign states by section 9 (applying by virtue of section 22) of the Act.  There are exceptions to this general immunity, and question for determination is whether or not the proceedings “concern a commercial transaction” for the purposes of section 11 of the Act, with the consequence that the immunity from the jurisdiction of Australian courts does not apply. 
The second case, commencing on Wednesday, 9 May 2012 is Mansfield v The Queen.  This appeal arises from a prosecution of the two appellants for insider trading.  At issue is whether or not it is necessary for the Crown to establish that the “inside information” possessed by the appellants is “truthful information” or alternatively “a factual reality”.
The third case, commencing on Thursday, 10 May 2012 is Papaconstuntinos v Holmes a Court.  This case arises out of the bid made by Holmes a Court and Russell Crowe in 20005 to inject money into the South Sydney Rugby League Club, a bid that was bitterly opposed by the appellant.  In the course of the antagonistic machinations prior to the Extraordinary General Meeting that approved the bid, Holmes a Court wrote a letter to Andrew Fergusson (state secretary of the CFMEU, of which the appellant was a member) accusing the appellant of making misleading statements about the bid, and making allegation of a misuse of Souths’ funds a few years earlier at a time when the appellant’s son was employed by Souths.  The letter was found to be defamatory.  At issue is whether or not Holmes a Court was entitled to succeed on a defence of qualified privilege at common law.

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