Sunday, August 5, 2012

This week in the High Court of Australia

There are three cases being argued in the High Court of Australia this week commencing Tuesday, 7 August 2012.
The first is RCB v The Honourable Justice Forrest, to be heard on Tuesday and Wednesday.  This case raises important issues relating to the operation of the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”).  Among the issues to be considered are whether or not procedural fairness requires a child to be independently and separately represented whenever it appears that a child may object to being returned to a foreign country pursuant to the Hague Convention, and if so whether section 68L(3) of the Family Law Act 1975 (which is to the effect that a child in abduction proceedings may only be separately represented in exceptional circumstances) contravenes Chapter III of the Constitution.
On Wednesday and Thursday the High Court will hear argument in Sweeney v Thornton.  In this case the applicant for special leave/appellant, a learner driver, lost control of the vehicle in which she was learning to drive as a result of entering a bend at excessive speed.  She sued the respondent, who was teaching her to drive, in negligence for failing to advise her as to the speed at which she should have entered a bend, or to take control of the vehicle.  At issue in the appeal is the content of the duty of care owed by an instructor to a learner driver, and whether in the circumstances of the case the NSW Court of Appeal had erred in its findings as to breach of duty and of causation.
On Thursday and Friday the High Court will hear argument in Cooper v The Queen.  This case raises a number of issues, the most interesting of which is perhaps the question of whether or not the defence counsel’s failure to lead evidence of certain mental health service records which indicated the deceased suffered from a psychosis that could be exacerbated by drugs and alcohol, and the failure to cross-examine the deceased’s grandmother concerning the deceased’s mental health, gave rise to a miscarriage of justice.

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