Judgments tomorrow in the High Court of Australia

Tomorrow, 5 June 2013 the High Court will deliver judgment in three cases.

The first is Kakavas v Crown Melbourne Limited, a case involving a chronic gambler seeking to recover $20.5 million from the operator of Melbourne’s Crown Casino.  The appellant was suffering from a psychiatric condition known as pathologic gambling.  He was also subject to an exclusion order from Star City Casino in Sydney (issued by the NSW Police) as a result of which he was also prohibited from entering the Crown Casino in Melbourne and any winnings payable to him from gambling were forfeited to the State of Victoria.  It is apparent Crown Casino was aware of the appellant’s gambling habits and financial difficulties over a long period of time, but nonetheless the appellant was provided with various inducements to return to the casino and to gamble.  At issue in the High Court is whether the Casino acted unconscionably within the meaning of section 51AA of the Trade Practices Act 1974 by inducing him to gamble when it knew or ought to have known that he was suffering from a “special disadvantage”, namely pathological gambling.  Also at issue is whether or not the Casino acted unconscionably in inducing him to gamble in circumstances where it knew or ought to have known that by reason of the interstate exclusion order he was unable to retain any winnings from gambling at the Crown Casino. 

The second is State of NSW v Kable, the latest instalment of the long-running saga involving Gregory Wayne Kable.  At issue before the High Court is whether or not obedience to orders of a State Supreme Court that were valid on their face (but which were subsequently found to be ineffective by virtue of the invalidity of the authorising Act) provides a defence of lawful authority at common law to the claim for false imprisonment.

The third is Agius v The Queen.  At issue in the appeal is whether a person commits the offence of conspiracy to defraud contrary to section 135.4 of the Commonwealth Criminal Code where the agreement underlying the alleged conspiracy was formed prior to the commencement of that section, but the agreement was given effect to after that commencement.

Next week in the High Court of Australia

Next week the high Court will hear argument in two cases.

In the first, Legal Services Board v Gillespie-Jones, the Court will consider 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.  As the Legal Services Board succinctly puts it, this has the effect of making the Fidelity Fund the de facto guarantor of the bad debts of solicitors.

In the second, Nguyen v The Queen, the Court will consider an appeal by Dang Khoa Nguyen in criminal proceedings that have already made their way to the High Court on a previous occasion (see R v Nguyen (2010) 242 CLR 491, an appeal involving Dang Khoa Nguyen’s co-accused, Dang Quang Nguyen).  At issue is whether the trial judge ought to have left for consideration by the jury an alternative charge of manslaughter (by acting in concert, by extended common purpose, or by aiding and abetting) where the perpetrator had been conceited of murder.  A further issue of more general importance is the extent to which a trial judge is entitled to have regard to the manner in which an accused has conducted the defence in determining whether or not to leave an alternative charge for the jury’s consideration.

Forthcoming judgments in the High Court of Australia

This week, on Wednesday 29 May 2013, the High Court will deliver judgment in two cases.

In M79/2012 vMinister for Immigration and Citizenship The plaintiff is a Sri Lankan citizen who arrived at Christmas Island in February 2010.  He was therefore an “offshore entry person” and was unable to make a valid application for a visa (including a Protection Visa) by virtue of section 46A(1), unless the Minister exercised his power under section 46A(2) to “lift the bar” on the making of such an application.  The plaintiff had access to the administrative systems of Refugee Status Assessment and Independent Merits Review (the systems by which if a person is found to be a refugee, the Minister may then exercise the power to “lift the bar” under section 46A(2)).  Those processes were completed on 17 May 2011 with a recommendation to the Minister that the plaintiff not be recognised as a refugee (ie not a person to whom Australia has protection obligations).  An application for judicial review in the Federal Magistrates Court has been heard, with judgment reserved.  The plaintiff had been held in immigration detention since his arrival on Christmas Island.  However, he was released on 12 April 2012 pursuant to a policy announced on 25 November 2011 that “irregular maritime arrivals” such as the plaintiff would be released from immigration detention and placed in the community on bridging visas.  He was released because he was granted a Temporary Safe Haven Visa (permitting a stay of 7 days) and a Bridging Visa (permitting a stay of 6 months).  The submission signed by the Minister approving the exercise of his intervention power under section 195A noted that the purpose of granting the Temporary Safe Haven Visa was to bar the plaintiff from lodging further onshore visa applications.  A subsequent application for a protection visa was rejected as not being a valid application (because of section 46A(1)).  Upon the expiry of the Bridging E visa the plaintiff was detained before being again released into the community by the grant of a further Bridging E visa.  The plaintiff challenges the grant of the Temporary Safe Haven Visa on two grounds.  The first is that such a visa cannot be granted under the ministerial intervention power in section 195A.  The second is that having been made for an improper purpose (ie to prevent the making of a valid application for a protection visa once lawfully released into the community under the Bridging E Visa) the grant of the Temporary Safe Haven Visa was invalid.

There is also a judgment in relation to the making of orders consequential on the High Court’s judgment earlier in the year in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd & Ors.

This week in the High Court of Australia

Unfortunately other commitments have delayed this week’s post, but here goes.  There are two cases being heard this week in the High Court.

On Tuesday 28 May 2013 the Court heard argument in Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd.  In that case Hoechst AG held a patent for a compound called leflunomide.  That patent, which expired in 2004, claimed a “method for the treatment of inflammations, rheumatic complaints and multiple sclerosis by administering to the patient an effective dose” of leflunomide.  In 1994 Hoechst AG applied for a patent (expiring in 2014) in which it claimed “A method of preventing or treating a skin disorder, wherein the skin disorder is psoriasis, which comprises administering to the patient an effective dose” of lelunomide.  Apotex has marketed a generic form of leflunomide, for which it has TGA approval and copied the respondent’s patient information.  The respondents sought to restrain Apotex from marketing its generic leflunomide for psoriasis, claiming it breached the patent.  The High Court has thus been called upon to rule on whether or not a method of treatment of the human body is capable of being a patentable invention, or alternatively whether a claim for a subsequent use of a previously known product claims a patentable invention.  The hearing continues tomorrow.

On Thursday, 30 May 2013 the Court will hear argument in the appeals in Issa v The Queen and Elias v The Queen.  The Court will consider the extent of the principle in R v Liang & Li, whereby a sentencing court imposing a penalty for a State offence is required to have regard to the fact that the accused could have been charged with a different offence under State law that carried a lesser penalty.  At issue in the appeal is whether or not in sentencing a person for a State offence, the principle in R v Liang & Li requires a court to take into account that the person could have been charged with a similar offence for the same conduct under a Commonwealth law which carried a lesser maximum penalty. 

Grants of Special Leave to Appeal to the High Court

On Friday, 10 May 2013 the High Court granted special leave to appeal in five cases.

In Comcare v PVYW the High Court will revisit the question of whether an employee injured whilst engaged in private activities is able to recover workers compensation.  The respondent was required by her employer (a Commonwealth government agency) to travel to a country town. She stayed at a motel booked by her employer. While staying at the motel she arranged to meet a male friend and, after dining together, they went to her motel room. The respondent was injured while engaging in sexual intercourse when a glass light fitting above the bed was pulled from its mount and fell on her, causing injuries to her nose and mouth. She also suffered a psychological injury as a result of the incident.  The issue for the High Court is whether or not the injury can be said to be “arising our of, or in the course of, her employment”.

Reproduction was the subject of a second grant of special leave in Clark v Macourt.  This is a case about the appropriate measure of damages for breach of warranty in a contract for the sale of a business which sale included the transfer of title to straws of semen for use in fertility treatment.

Special leave was also granted in Bugmy v The Queen, an appeal in relation to sentence from the NSW Court of Criminal Appeal in which the NSWCCA allowed a Crown appeal against sentence.  The appeal raises questions about the manner in which the Court of Criminal Appeal, having identified error on the part of the sentencing judge, then went about re-determining the sentence.

In Willmott Growers Group Inc v Willmott Forests Ltd (Receivers & Managers Appointed) (In Liquidation) the High Court will consider the power of a liquidator of a managed investment scheme to disclaim leases granted to the members of the scheme.

Finally, in Wingfoot Australia Partners Pty Ltd v Kocak the Court will consider the extent to which a medical panel appointed under a statutory accident compensation scheme is required to give reasons for the opinions expressed by it, and the extent to which inadequacy of reasons is amenable to judicial review.