Welcome to New Chambers

A big shout out to New Chambers, Sydney's just-launched set of barristers.

The foundation members of New Chambers were previously members of Seven Wentworth, one of Australia's most respected barristers' chambers. 

It is presently constituted by 11 senior counsel and 10 junior counsel.  From 1 February 2015, New Chambers will welcome 14 new members, together with 6 new licensees.  This follows their expansion from Level 34 and part of Level 33, into the remainder of Level 33 and the physical integration of the two floors over the Summer Vacation.

Head on over to check them out at www.newchambers.com.au

Forthcoming judgments in the High Court of Australia

Next week the High Court will deliver judgment in three cases.

On Wednesday, 8 October 2014 the Court will deliver judgment in Tajjour v State of New South Wales, which comprises three challenges brought to section 93X of the NSW Crimes Act 1900.  This section was introduced by the Crimes Amendment (Consorting and Organised Crime) Act 2012.  It provides that a person who “habitually consorts with convicted offenders” and who in fact consorts with those convicted offenders after being given an official warning in relation to each of those convicted offenders, is guilty of an offence.  Consorting may occur in person, or by any other form of communication, including electronically.  A “convicted offender” is any person convicted of any indictable offence.  There are various defences available where a Court is satisfied that the consorting was reasonable in the circumstances, such as consorting with family members, or in the course of employment, or training and education, or in the provision of health or legal services. The plaintiffs in the three sets of proceedings challenge the laws on the grounds that they impermissibly burden the implied freedom of communication on governmental and political matters contrary to the Commonwealth Constitution.  They also raise the question of whether the Constitution contains an implied freedom of association, independently of the implied freedom of communication.  A challenge is also made on the independent ground that the provisions contravene the International Covenant on Civil and Political Rights. which, so it is alleged, places a limitation upon the legislative power of the State of New South Wales.

The Court will also deliver judgment on Wednesday in Brookfield Multiplex Pty Ltd v Owners Corporation Strata Plan 61288.  This case arose out of the construction by Brookfield of a high-rise apartment building on land owned by a company known as Chelsea Apartments Pty Ltd.  The apartments were completed in 1999 and the strata plan for the apartments was registered, creating the Owners Corporation.  In 2008 the Owners Corporation sued Brookfield in negligence for the cost of rectifying defects in the building.  The question that arises is whether or not a duty was owed by Brookfield to the Owners Corporation to take reasonable care in the construction of the building so as to avoid causing the Owners Corporation harm in the form of pure economic loss resulting from latent defects in the common property.

Then on Thursday, 9 October 2014 the Court will deliver judgment in Kentwell v The Queen and O’Grady v The Queen.  These cases raise an important procedural issue in relation to appeals in the criminal jurisdiction in NSW.  In each case the appellants commenced an appeal against sentence in the NSW Court of Criminal Appeal, but required an extension of time within which to bring that appeal.  The same panel of judges heard each of the applications, and in each case it was found that the sentencing judge had erred by making a so-called Muldrock error (named after the High Court decision that held that a standard non-parole period was not the starting point from which sentencing courts depart by applying aggravating or mitigating factors, but was simply one of the factors in determining the appropriate sentence).  Nonetheless, in each case the Court of Criminal Appeal held that the error had not resulted in any substantial injustice and therefore refused the extension of time within which to appeal.  The appellants’ complaint is two-fold: firstly, the CCA should not have imposed a “no substantial injustice” test to the exercise of the discretion to extend time, and secondly that in doing so they effectively determined the merits of the appeal in a “summary fashion”.

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.

This week in the High Court of Australia

This week the High Court will hear argument in three appeals.

Commencing on Tuesday, 9 September 2014 the Court will hear an appeal from the Full Federal Court in Wellington Capital Limited v ASIC.  This case addresses the relationship between provisions commonly found in the Constitution of managed investment schemes to the effect that the Responsible Entity has all powers legally possible for a corporation as if it were the absolute owner of the scheme property and acting in its personal capacity, conferring power to dispose of and deal with the scheme property as if it were the beneficial owner of the property, and the provisions of section 601FC of the Corporations Act 2001, which provides that a Responsible Entity holds scheme property on trust for the scheme members.

On Wednesday, 10 September 2014 the Court will hear an appeal from the NSW Court of Appeal in Gray v Richards.  This case addresses an important question of the law of damages in personal injury cases.  Where compensable injury to a plaintiff results in impairment of the plaintiff’s ability to manage the money awarded to the plaintiff in respect of the injury, the award of damages will commonly include a component for the cost of having a third party manage the fund of money on behalf of the plaintiff (so-called fund management expense).  The questions that arise for consideration are: whether the award of damages should include an amount for the cost of managing the fund management expense itself; whether it should include an amount for the cost of managing income earned on the fund; and whether the amount of the fund upon which the fund management expense is to be calculated includes moneys that will be immediately paid out of the fund (such as, for example, that part of the damages awarded in respect of past medical expenses, or for the cost of purchasing a custom-built home catering for the plaintiff’s disabilities).

On Thursday, 11 September 2014 the Court will hear an appeal from the Full Federal Court in Commissioner of Taxation v MBI Properties Pty Ltd.  This case raises a short question of statutory construction under the GST legislation, and in particular whether or not there is a supply to a lessee by the purchaser of the reversionary interest under the lease who continues to receive rent.

This week in the High Court of Australia

This week the High Court of Australia goes on circuit, hearing two cases in Brisbane.

On Tuesday, 2 September 2014 the Court will hear Kuczborski v The State of Queensland.  In this case the plaintiff challenges the validity of the Vicious Lawless Association Disestablishment Act 2013, and amendments made by the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 and the Tattoo Parlours Act 2013.  These Acts are yet another attempt by a State government to address law and order issues arising out of the activities of motorcycle gangs.  The challenge will firstly give rise to a question of standing, with the State of Queensland disputing (with a few minor exceptions) that the impugned laws have any operation at all in relation to the plaintiff.  The declarations of invalidity sought, therefore, are said to be hypothetical only. Beyond that, the plaintiff invokes the Kable principle to impugn the laws n the basis that they, in effect, operate to impose more severe criminal consequences upon a person because of their association with a particular group deemed by the Executive to be a criminal organisation.

On Wednesday, 3 September 2014 the Court will hear Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd.  This case arose out of the termination of the employment of a member of the union, following his participation in industrial action at BHP’s Saraji mine.  During a stop-work period the member held up a sign that read “SCABS - no principles - no guts”.  The union commenced proceedings in the Federal Court alleging that BHP had dismissed the member unlawfully, having taken adverse action against the member because he had engaged in the industrial activity.  During the hearing, the mine’s general manager gave evidence that the member’s repeated waving of the sign over a period of three days amounted to harassing behaviour that was contrary to BHP’s conduct policy and the culture being developed at the mine, and it was for that reason that the member had been terminated.  Jessup J upheld the claim by the Union.  On appeal, a majority of the Full Federal Court held that Jessup J’s finding of contravention could not stand, as it was inconsistent with his Honour’s acceptance of the evidence of the mine manager that the industrial activity of the member had played no part in the decision to terminate his employment.  A central issue in the appeal is the circumstances in which an employee can lawfully be terminated for engaging in conduct that amounts to industrial activity, but which concurrently contravenes a conduct policy of an employer.