March Special Leave Rundown

Exceptionally high hit rate this month with 55% of leave applications being either granted or referred to the Full Court. Here are the cases that received special leave on Friday:

Workcover Queensland v Amaca Pty Ltd [2009] QCA 72 

The latest asbestos case to reach the High Court. In this case Workcover had paid out compensation to a sufferer of mesothelioma. Unfortunately the sufferer died before he could initiate proceedings against the employer, Amaca (ie James Hardie). The relevant Act allows the insurer to bring proceedings for an indemnity against the employer, but the Qld SCCA found that this indemnity was limited to liability for loss that would survive the death of the deceased (eg money paid to the deceased for pain and suffering was not included in the indemnity).

See abridged version at Barrister Direct.

Pollock v The Queen [2009] QCA 268

This is an appeal from the retrial of Andrew Pollock, charged with murdering his father. The case brings up several considerations in respect of the defence of provocation, including jury directions and the role of the prosecution in answering that defence.

Public Trustee of Queensland v Fortress Credit Corporation (Aus) 11 Pty Ltd [2009] QCA 282

This case concerns the requirement of registration of a 'variation of' or a 'creation of' a charge under the Corporations Act 2001 (Cth). It specifically considers what is meant by a “variation in the terms of the charge” under s 268 and what constitutes the creation of a charge under s 263.

Selected Seeds Pty Ltd v QBEMM Pty Limited [2009] QCA 286 

This case considers the construction of insurance contracts and particularly the proper approach to exclusion clauses in such contracts.

Forbes v The Queen [2009] ACTCA 10

A fascinating case in which the accused was convicted of rape, almost exclusively on DNA evidence. It raises squarely the status in Australian Law of the prosecutor’s fallacy. I have not seen the grounds of appeal but looking at the decision there may be some argument regarding the relevance of defence witnesses in the finding of guilt.

The question of leave has been referred to the full court for a full hearing.

 [UPDATE 20/5/10: Special leave to appeal refused.]

Spencer v Commonwealth of Australia [2009] FCAFC 38

I posted about Spencer on Friday. Peter Spencer claims that there has been an acquisition of his property on other than just terms contrary to s 51(xxi) of the Constitution. It is largely similar to both ICM and Arnold, except that it relates to restrictions on the use of land rather than water. His claim was struck out based on the interpretation of ss 96 and 51(xxxi) that was largely rejected in ICM. The question will therefore presumably be whether there has been an ‘acquisition of property’ (fairly raised on the pleadings).

The question of leave has been referred to the full court for a full hearing.

Kostas v HIA Insurance Services Pty Limited T/as Home Owners Warranty [2009] NSWCA 292
This case considers the proper approach to statutory appeals from a Tribunal “with respect to matter of law”. It deals with the distinction between errors of law and errors of fact as well as the relevance of what constitutes an error of law in judicial review proceedings as apposed to statutory appeal.

Aid/Watch Incorporated v Commissioner of Taxation [2009] FCAFC 128
The case concerns the proper test for determining what bodies may obtain a tax exemption as a charitable institution. In particular, the issue is whether a body’s purpose of ‘influencing government policy’ contraindicates a charitable purpose. A number of other charities appear to be considering this to be a test case for their own status as a charitable institution.

Travelex Ltd v Commissioner of Taxation [2009] FCAFC 133

This case considers whether the conversion of Australian Dollars into foreign currency is a taxable supply which attracts GST liability.

CGU Insurance Ltd v One.Tel Ltd (In Liq) [2009] NSWCA 282

This case has quite a complex factual scenario but ultimately the issue is whether a cause of action which is assigned pursuant to a Deed of Arrangement made under the Bankruptcy Act 1966 (Cth) dissolves upon the termination of the DoA.

Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323

Some time after a motor accident had occurred and had been cleaned up by authorities, a bicyclist slipped on some oil residue on the road.  The cyclist sought leave to bring a claim out of time against the third party insurer of the person who caused the motor accident. The case considers whether there is a temporal requirement that would prevent the injury coming within the scope of the Motor Accidents Compensation Act 1999 (NSW).

This was a relatively straight forward application for leave to initiate proceedings out of time pursuant to the Act, which turned into a 5 Judge full bench exploring the state of the doctrine of precedent in Australia. The reason for all the confusion was that there was inconsistency between “seriously considered dicta” of the High Court in the case of Allianz (in relation to a similar provision in the Act) on the one hand, and a NSW Court of Appeal decision (as well as the Court’s own belief in the desirable approach) on the other.