Tuesday, September 9, 2014

Forthcoming judgments in the High Court of Australia

This week the High Court will deliver judgment in three appeals.
On Wednesday, 10 September 2014 the Court will deliver judgment in Commonwealth Bank of Australia v Barker.  In this important employment law case Mr Barker was employed by the Bank as an executive manager.  His contract of employment entitled the Bank to terminate his employment without cause on four weeks’ written notice.  His position became redundant.  In the letter informing him of this redundancy, the Bank told Mr Barker its preference was to redeploy him to a suitable position within the Bank. Ultimately, however, the Bank terminated his employment.  Mr Barker sued the Bank for breach of contract, and for misleading and deceptive conduct.  He argued that certain written policies of the Bank dealing with redundancy were incorporated into his contract of employment, and that the Bank had breached those policies. The primary judge held that the policies were not incorporated into his contract of employment.  However, the primary judge found that the contract of employment contained an implied term of mutual trust and confidence.  His Honour also found that the Bank had been almost totally inactive in complying with its redundancy policies in relation to Mr Barker, and that this was a serious breach of the implied term of mutual trust and confidence which sounded in damages. His Honour awarded Mr Barker damages of $317,000 for loss of the opportunity to be redeployed to a suitable position within the Bank.  The main issue in the appeal is whether or not the implied term of mutual trust and confidence forms part of the common law of Australia.
The Court will also deliver judgment in Maxwell v Highway Hauliers Pty Ltd, which raises an important issue in relation to the proper construction of s 54 of the Insurance Contracts Act 1984 (Cth). Hauliers carried on a trucking business and operated a fleet of trucks and trailers that transported freight between the Eastern and Western states of Australia. Hauliers had a contract of insurance with various Underwriters at Lloyds in London (represented in Australia by Maxwell) that covered accidental loss or damage to all vehicles owned, leased or acquired by it.  The contract of insurance also included a provision which stated that no indemnity was provided under the policy unless all drivers met certain conditions, including obtaining a People and Quality Services test score of at least 36. In separate accidents in 2004 and 2005 trucks owned by Hauliers were damaged. Claims under the insurance policy were rejected on the basis that the relevant drivers had not obtained the relevant PAQS test score.  It was accepted by Maxwell that the failure of the drivers to complete a PAQS test had not caused or contributed to the accidents. Hauliers sued Maxwell for indemnity, and also claimed damages for breach of the contract of insurance for the loss of profits for not being able to use the damaged trucks.  At first instance and in the Western Australia Court of Appeal, it was held that Maxwell was obliged to indemnify the Insured by reason of s 54(1) of the Act, which relevantly provides that where the effect of the policy would be that the insurer may refuse to pay a claim (in whole or in part) by reason of some act of the insured or of some other person, being an act that occurred after the policy was entered into, the insurer may not refuse to pay the claim by reason only of that act, but its liability is reduced by the amount that fairly represents the prejudice to the insurer's interests. In doing so they rejected the contention by Maxwell, relying upon a 2010 decision of the Queensland Court of Appeal, that the failure to undertake the PAQS test was not an omission to which section 54(1) applied, but was simply a state of affairs which had the effect that there was no cover provided by the policy at all. 

On Thursday, 11 September 2014 the Court will deliver judgment in Plaintiff S4/2014 v Minister for Immigration and Border Protection.  In that case the plaintiff, a stateless person originating from Myanmar, entered Australia in December 2011.  Because of section 46A of the Migration Act 1958 he was unable to lodge an application for a protection visa.  He was, however, entitled to request a Protection Obligations Determination, an administrative process whereby an assessment was made as to whether the plaintiff was a person to whom Australia owed protection obligations (ie a refugee).  In April 2012 officers of the Department determined that he was a refugee.  Between April 2012 and January 2014 the plaintiff’s case was referred to ASIO for assessment, ultimately resulting in a “non-prejudicial (clear) security assessment.”  Ordinarily, these processes would have resulted in the Minister exercising the discretion under section 46A to lift the bar preventing an application for a protection visa being made.  However, without notice to the plaintiff and without application by the plaintiff, the Minister granted the plaintiff a 7-day Temporary Safe Haven visa, and a 3-year Temporary (Humanitarian Concern) Visa.  The effect of granting the 7-day TSH visa was to enliven section 91K which imposes a bar on the plaintiff making an application for any form of visa.  The apparent purpose was to avoid the reasoning in the Offshore Processing Case, that in undertaking the Protection Obligations Determination process the Minister had embarked upon consideration of whether or not to lift the bar under section 46A.

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