Judgments this week in the High Court of Australia

On Wednesday, 3 December 2014 the High Court of Australia will deliver judgment in two cases.

The first judgment is in Cantarella Bros Pty Limited v Modena Trading Pty Limited, which raises important issues relating to the use of foreign descriptive words as trade marks in Australia. Cantarella produces coffee in Australia from imported beans.  It promotes and sells its coffees using various registered trade marks including “Vittoria”, “Oro” and “Cinque Stelle”.  Cantarella widely promoted its Oro branded coffee through supermarkets, and its Cinque Stelle coffee was served in many restaurants and by Qantas. Modena imports and markets coffee supplied by an Italian company, Caffè Molinari SpA (“Molinari”).  Molinari’s coffees include blends named “Oro” and “Cinque Stelle”, which are sold in Italy and are exported to many countries.  Many other producers and importers of coffee also use the word “Oro” in their brands in Australia.  In Italian, “Oro” means gold, and “Cinque Stelle” means five stars.  Cantarella sued Modena for infringement of its registered trade marks.  Modena cross-claimed, seeking the cancellation of each trade mark’s registration.  At first instance Justice Emmett declared that Modena had infringed Cantarella’s trade marks.  His Honour held that the words “Oro” and “Cinque Stelle” were sufficiently distinctive because only a small minority of people in Australia would understand the meaning of the words, and thus the allusions to quality made by them.
The Full Court of the Federal Court unanimously allowed Modena’s appeal. Their Honours held that instead of focusing on the knowledge of the general population, the focus ought to have been on the knowledge of traders in coffee.   Italian was so commonly used in relation to coffee in Australia that traders other than Cantarella would readily understand, and indeed had long used, the words “Oro” and “Cinque Stelle” to signify quality of goods.  The Full Court ordered that the registration of the trade marks of those words be cancelled.

The second judgment is in Commissioner of Taxation v MBI Properties Pty Ltd, which 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

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.

Judgments this week in the High Court of Australia

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

On Wednesday, 12 November 2014 the High Court will deliver judgment in Hunter and New England Local Health District v McKenna. On 20 July 2004 Mr Stephen Rose arranged for his friend, Mr William Pettigrove, to be admitted to the Manning Base Hospital in Taree due to concerns he had over Mr Pettigrove’s mental health.  Pursuant to the Mental Health Act 1990 (NSW), Mr Pettigrove was compulsorily detained overnight.  He was however released into Mr Rose’s care the next day following a subsequent psychiatric assessment by the Hospital’s psychiatrist, Dr Coombes.  Mr Pettigrove was released to enable both men to travel by car to Victoria which is where Mr Pettigrove's mother lived.  After stopping en route near Dubbo, Mr Pettigrove strangled Mr Rose to death.  Mr Pettigrove later told police that he had acted on a revenge impulse, apparently believing that Mr Rose had killed him in a past life.  Mr Pettigrove himself subsequently committed suicide.  The issues raised by the appeal for determination by the High Court are numerous, and include whether or not the Hospital owed a duty of care to Mr Rose and/or Mr Rose’s family, the operation of section 5O of the Civil Liabiltiy Act 2002 (relating to the standard of care owed by professionals) and sections 43 and 43A of that Act (relating to the liability of public authorities for breach of statutory duty and failure to exercise special statutory powers).  However, when the matter was called on for hearing the High Court heard argument only in relation to the duty of care question, and it seems likely that the Court will allow the appeal on the basis that the Hospital did not relevantly owe a duty of care.

The High Court will also on Wednesday deliver judgment in Minister for Immigration and Border Protection v SZSCA.  In that case the respondent is an Afghani citizen of Hazara ethnicity who claimed to fear persecution due to his membership of a particular social group, namely “truck drivers who transported goods for foreign agencies”.  He also claimed to fear persecution based upon political opinions imputed to him by the Taliban.  He unsuccessfully applied for a protection visa.  On appeal to the RRT, the RRT accepted the plausibility of the threats made against him, but concluded that he could avoid persecution if he returned to Kabul and changed his occupation.  Successive appeals to the Federal Court resulted in a determination that the RRT had erred in limiting itself to what the respondent could reasonably do upon return to Afghanistan rather than what he would do.  This case will be an important one if only because this is one of the areas in which it is claimed by Senator Brandis that the Courts have misinterpreted the Refugee Convention, prompting the introduction into Parliament of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 which “codifies” or “clarifies” what are said to be “Australia’s international law obligations” by re-defining what is meant by “well-founded fear of persecution” in a way that may or may not actually reflect Australia’s international law obligations.

Then on Friday, 14 November 2014 the High Court will deliver judgment in 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 gives rise firstly 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.

This week in the High Court of Australia

The High Court of Australia will hear argument in three cases this week.

The first argument is in Commissioner of Taxation v MBI Properties Pty Ltd.  Argument in this case commenced on 11 September 2014 but was adjourned when counsel for the Commissioner became ill during the course of submissions. It 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.

The second argument is in Commissioner of State Revenue v Lend Lease Development Pty Ltd.  This case raises a question of general importance as to whether or not payments made by a developer to a statutory authority for infrastructure and construction works carried out as part of a large urban renewal project form part of the consideration paid for the sale of parcels of land from the authority to the developer.

The third argument is in Korda v Australian Executor Trustees (SA) Ltd.  This case raises a question of general important as to whether the intention necessary to create a trust by investors in an investment scheme is to be determined by reference solely to the terms of the transaction documents executed by them, or more generally by reference to the commercial setting in which the investment was made.

Forthcoming judgments in the High Court of Australia

The High Court will deliver two judgments next week on Wednesday, 5 November 2014.

The first is in the case of Alphapharm Pty Ltd v H Lundbeck A/S, a challenge to a decision by the Commissioner of Patents (upheld by the AAT and the Full Federal Court) to extend the time within which Lundbeck could make an application to extend the term of the Patent held for an anti-depressant drug marketed by Lundbeck in various forms under the names Cipramil and Lexapro.  At its heart is an argument about the proper construction of the Patents Act and the regulations made thereunder.  But it has profound commercial significance for Lundbeck and its competitors (who had already placed generic versions of the drugs on the market prior to the extension) as well as for the public health budget.

The second is the case of 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.