Monday, November 10, 2014

This week in the High Court of Australia

The High court will hear argument in three cases this week.
On Tuesday, 11 November 2014 the Court will hear argument in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd.  The case arises out of the prank phone call made by two morning radio presents who, posing as Queen Elizabeth II and Prince Charles, recorded a telephone call with two hospital staff at King Edward VII Hospital in London, where the Duchess of Cambridge was an inpatient, being treated for acute morning sickness.  Notoriously, one of the hospital staff involved subsequently committed suicide.  ACMA investigated the incident and found that Today FM, in broadcasting the recording of the private conversation (which was made in contravention of section 7(1) of the Surveillance Devices Act 2007 (NSW)), had contravened section 11(1) of that Act, and had therefore contravened a condition of its broadcasting licence which provides that “the licensee will not use the broadcasting service or services in the commission of an offence against another Act or a law of a State or Territory”.  At issue is whether or not ACMA has the power to investigate and make a determination that a licensee has committed a criminal offence.
On Wednesday, 12 November 2014 the Court will hear argument in Grant Samuel Corporate Finance Pty Ltd v Fletcher, an appeal from a decision of the NSW Court of Appeal  which raises an important issue in relation to the commencement of proceedings by liquidators in relation to voidable transactions.  Section 588FF(3)(a) provides that such applications be brought within 3 years of the relevant relation-back date.  Section 588FF(3)(b) authorises a Court to extend that period, although an application for extension must be brought within the original 3-year period.  In this case an extension application was made ex parte within the 3-year period and granted by Hammerschlag J.  A further application was brought outside of the initial 3-year period, but within the original extended period, for a further extension of time within which to commence proceedings.  This application was granted by Ward J, relying upon the power under UCPR 36.16 to vary orders made in the absence of a party.

On Thursday, 13 November 2014 the Court will hear argument in Cassegrain v Cassegrain & Co Pty Ltd.  The case arises out of the fraudulent conduct of a husband in which funds and property were diverted from a family company into the names of the husband and wife.  At issue is whether or not the wife is to be fixed with her husband’s fraud on the grounds that he was acting as her agent, and what are the consequences of the husband’s fraud for the purposes of indefeasible title under the Torrens system of land title by registration.

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