Monday, August 19, 2013

Grants of Special Leave to Appeal to the High Court

On Friday, 16 August 2013 the High Court granted special leave to appeal in four cases, and referred a fifth to an enlarged bench to be heard as if on appeal.
Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd is an appeal from the NSW Court of Appeal.  In this case a rogue and his companies were heavily indebted to Hills Industries and another company, Bosch Security.  The rogue generated fake invoices for the purchase of non-existent equipment from Hills and Bosch.  Using these invoices he raised funds from AFSL.  AFSL thought it was purchasing goods from Hills and Bosch and leasing them back to the rogue.  The funds were paid by AFSL to Hills and Bosch by electronic transfer.  The rogue told Hills and Bosch the moneys were partial repayment of the debts he owed to them.  As a result of that partial repayment, Hills desisted from taking proceedings against the rogue’s companies to recover the debts, and Bosch agreed to setting aside various default judgments and abandoning other proceedings that were currently on foot. Ultimately, the fraud was discovered, and AFSL commenced proceedings seeking the restitution of the funds paid to them.  At issue in the High Court is whether or not Hills and Bosch, having changed their position in good faith on the basis of the payment of those moneys, have a good defence to the restitution claim.
Li v Chief of the Army is an appeal from the Full Court of the Federal Court of Australia.  The appellant was charged that he “created a disturbance by causing a confrontation” contrary to section 33(b) of the Defence Force Discipline Act 1982.  That section makes it an offence where a defence member “creates a disturbance or takes part in creating a disturbance or continuing a disturbance.” At issue in the appeal is whether or not the offence as charged is an offence created by section 33(b) (ie whether the words “causing a confrontation” were merely particulars of the charge rather than a substantive element of the offence).  Also at issue is whether the prosecution is required to prove an intention to engage in conduct that in fact creates a disturbance, or whether the prosecution must prove an intention to create a disturbance.
Kline v Official secretary to the Governor General is an appeal from the Full Court of the Federal Court of Australia.  Kline had twice nominated a person for appointment to the Order of Australia.  Those nominations had been unsuccessful.  Kline made an application under the Freedom of Information Act 1982 for access to documents relating to those nominations (including documents of a more general nature relating to such nominations, such as working manuals and policy guidelines).  At issue in the appeal is whether or not the documents sought related to “matters of an administrative nature” (in which case the FOI Act required access to be granted) or whether they related to the exercise of a substantive power and function of the Governor-General (ie the administration of the Order of Australia) in which case they were exempt from production.
The join applications for leave in Zirilli v The Queen and Barbaro v The Queen have been referred to an enlarged bench.  These cases are appeals from the Victorian Court of Appeal against sentencing for drug trafficking, where the sentences were challenged on the grounds of manifest excess, and in the case of Barbaro on the grounds of disparity between co-offenders.
Australian Competition and Consumer Commission v TPG Internet Pty Ltd is an appeal from the Full Court of the Federal Court of Australia. In this case TPG was prosecuted for various contraventions of the Trade Practices Act 1974 arising out of advertisements for ADSL2+ access.  The advertisements prominently promoted pricing such as “$29.99pm”, but included in smaller print other statements such as the fact that there was a minimum charge of $509.89, and that the pricing was available only if bundled with a home phone line rental.  At issue, in general terms, is the efficacy of the fine print in defending what would otherwise be a misleading “dominant headline”, as well as the extent to which awareness of the industry practice of bundling and set-up costs to arrive at a minimum price may be assumed for the purposes of assessing whether an advertisement is misleading.
Finally, James v The Queen is an appeal from the Victorian Court of Appeal.  This case raises an important issue as to whether or not a judge presiding over a criminal trial is required to submit for the jury’s consideration the possibility of conviction for a lesser alternative offence, where conviction for that lesser offence is a realistic possibility on the evidence.  The issue arises starkly in this case because defence counsel at the trial made a conscious forensic decision not to ask for lesser alternative charges to be left to the jury.

Tuesday, August 13, 2013

This week in the High Court of Australia

The High Court will hear argument in two cases this week.
The first, commencing Tuesday, 13 August 2013 is Clark v Macourt.  In this case Clark and a company known as St George Fertility Clinic Pty Ltd carried on business providing assisted reproduction technology services in Sydney.  The appellant and St George entered into a deed in which the appellant purchased the business carried on by St George, along with various assets of the business.  Macourt was a party to the deed as guarantor of the obligations of St George.  The assets of the business that were sold to Clark included frozen sperm.  Of the 3,513 straws of sperm only 504 were useable.  Because of her inability to use the majority of the sperm supplied by St George, Clark ceased making payments due under the deed.  St George commenced proceedings for the balance of the purchase price, and Clark cross-claimed for damages for breach of contract relating to the unsuitability of the sperm sold by St George. St George (and Macourt) ultimately conceded the breach of contract.  At issue in the proceedings is how damages are to be assessed. This raises important issues as to the relevance of the regulatory regime in which assisted reproductive technology services are provided, whether damages are to be assessed by reference to the cost of replacement sperm or alternatively the value of the St George sperm had she been able to use it, and the extent to which payments made by patients mitigated her loss.
The second appeal, commencing on Wednesday, 14 August 2013 is Wingfoot Australia Partners Pty Ltd v Kocak.  The main issues in this appeal are whether or not a medical panel  giving an opinion under section 68 of the Victorian Accident Compensation Act 1985 is required to give reasons for its opinion (and if s what is the extent of that obligation), and whether or not inadequate reasons constitute a ground for quashing the opinion for error of law on the face of the record?

Monday, August 12, 2013

Judgments this week in the High Court of Australia

On Wednesday, 14 August 2013 the High Court will deliver judgment in two cases.
The first is Legal Services Board v Gillespie-Jones, an appeal by the Victorian Legal Services Board against a decision of the Victorian Court of Appeal in which it held that where a solicitor misappropriates trust moneys paid to the solicitor by a client to cover the client’s costs of litigation (including fees charged by counsel), a barrister who had been retained by the solicitor to appear for the client was entitled to compensation out of the Fidelity Fund established under the Legal Profession Act 2004 (Vic) in respect of the barrister’s unpaid fees. 
The second is Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd in which the Court will consider the question of whether employer-provided accommodation and transport to workers in remote worksites constitutes a “payment” within the meaning of section 470 of the Fair Work Act 2009 (in which case, the employer was required to withhold the accommodation and transport while the workers were engaged in protected industrial action).

Friday, August 2, 2013

Judgments next week in the High Court of Australia

On Wednesday, 7 August 2013 the High Court will deliver judgment in two outstanding cases.
The first is judgment in Leo Akiba (on behalf of the Torres Strait Regional Sea Claims Group) v Commonwealth of AustraliaThese proceedings arise out of a native title determination application filed on behalf of the Torres Strait Regional Seas Claim Group.  The application was opposed by the Commonwealth, the State of Queensland, a large group of people and companies collectively described as “The Commercial Fishing Parties” and a small number of parties from Papua New Guinea.  The application sought a determination of native title rights and interests in a large part of the sea area of the Torres Strait.  The occupation of the region by the Seas Claim Group and their ancestors was of an essentially maritime character.  The sea is an integral presence in the lives and livelihood of the Islander communities that comprise the Seas Claim Group. At issue is whether or not there is a single Torres Strait Island society for the purposes of the Native Title Act 1993, whether rights held under traditional laws and customs on the basis of a ‘reciprocal relationship’ with a holder of ‘occupation based rights’ are native title rights or interests for the purposes of the Act, and whether or not the laws of The Commonwealth and the State of Queensland governing fishing rights had extinguished such native title as the plaintiff’s might otherwise have held.
The second is judgment in Fortescue Metals Group Limited v Commonwealth of Australia, the challenge by Andrew Forrest to the Commonwealth’s Mineral Resources Rent Tax, more common known as the Mining Tax.