Monday, June 25, 2012

Grants of Special Leave to Appeal in the High Court of Australia

Last Friday the High Court of Australia granted Special Leave to Appeal in 5 cases.
Monis v The Queen; Droudis v The Queen is an appeal from the NSW Court of Criminal Appeal in which the Court held that the offence of using a postal service to menace, harass or cause offence (section 471.12 of the Commonwealth’s Criminal Code), does not infringe upon the implied constitutional freedom of political communication. The Court held that the while the law effectively burdens the freedom, it does so in a way that is consistent with the maintenance of the system of government prescribed by the Constitution.
Westfield Management Ltd v AMP Capital Property Nominees Ltd is an appeal from the NSW Court of Appeal arising out of a dispute between UniSuper and Westfield whether to wind-up their joint venture investment scheme in the Karrinyup Regional Shopping Centre in Perth.  At issue is whether or not the Unitholders’ and Joint Venture Agreement properly construed has the effect that UniSuper cannot vote to wind-up the scheme under section 601NB of the Corporations Act without the prior written consent of Westfield, and if so whether the Agreement is to that extent unenforceable as being contrary to the public interest.
Google Inc v ACCC is an appeal from the Full Court of the Federal Court of Australia in which the principal issue is whether Google has engaged in misleading and deceptive conduct as a result of displaying an advertiser’s web address as a sponsored link in response to an enquiry made of the Google search engine by search terms which consist of or include the name of a competitor of the advertiser. This conduct is said to amount to a misrepresentation of a commercial affiliation between the advertiser and its competitor by displaying the advertiser’s web address in collocation with information concerning the competitor.
Montevento Holdings Pty Ltd v Scaffidi is an appeal from the Western Australia Court of Appeal.  At issue is whether or not it was open to an Appointor who was a beneficiary of a discretionary trust to appoint a Trustee where the effect of the purported appointment was to give the Appointor/beneficiary 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.
Stanford v Stanford is an appeal from the Full Court of the Family Court of Australia.  At issue in this case 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 circumstances of the elderly parties in this case were such that the wife, by reason of her physical and mental frailty, required high care in a nursing home. In contrast, the husband was of considerably good health and wished to remain living in this home, which was within his ability. 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 would seem to raise the constitutional question of whether, in the circumstances of this case, there is a “matrimonial cause” within the meaning of section 51(xxii) of the Constitution.

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