Thursday, August 30, 2012

Coming up in the High Court of Australia

There are four appeals being heard in the High Court of Australia in the two-week sittings commencing on Tuesday, 3 September 2012.
The first is an appeal from the Full Court of the Family Court in Stanfordv StanfordAt 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 raises numerous related issues, but central to the case is the constitutional question of the scope of the term “matrimonial cause” in placitum 51(xxii) of the Constitution.
Next is the appeal in Public Service Association and Professional Officers’ Association Amalgamated of NSW v Director of Public Employment the High Court granted special leave to appeal from the Industrial Court of NSW in a case that raises the question of whether a provision in the NSW Industrial Relations Act 1996 that requires the Industrial Relations Commission to give effect to certain aspects of government policy on public sector employment contravenes the so-called  Kable principle.
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.
Finally, in 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.

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