April Special Leave Rundown

A much more manageable load of special leave grants this month. Here are the cases that received special leave on Friday:

R v Dickson [2008] VSCA 271

This case comes out of a quite complex history of amended charges and reshuffling of co-conspirators for a charge of conspiracy to steal – cigarettes by posing as a customs official. It is interesting because it raises the requirements for a fair trial in the face of such procedural difficulties. The case has been “Referred to an enlarged Court” (apparently the new terminology for referring the question of leave to the Full Court). Read the Charterblog post on the implications of this case to the Victorian Charter of Rights.

Commissioner of Taxation v Anstis [2009] FCAFC 154 

Leave was granted to appeal against the federal Court’s decision which found that certain education expenses can be deductions for the purposes of income tax when a student is on Centrelink’s Youth Allowance (or Austudy) Payments. I wish this had been around when I was at Uni. There will probably be legislative change to fix this little loophole but in the mean time I will post a more specific summary of the finding of the Full Court for future reference.

[Update 30/4/10: expanded summary now available here.]

Port of Portland Pty Ltd v State of Victoria [2009] VSCA 282

The case concerns the enforceability of a contract made by the Victorian Government (NB: rather than the Parliament) promising to effect legislation that would exempt the Port of Portland from certain Land Tax. This could be a very welcome contemporary addition to the jurisprudence on contracts which are void or unenforceable for attempting to abrogate the supremacy of Parliament. Leave to appeal was granted.

Telstra Super Pty Ltd v Finch [2009] VSCA 318 

This case has been referred to the Full Court for determination. It concerns the grounds on which a court will set aside a determination of a Trustee. In this case the determination related to the rejection by the Trustee of a Superannuation Fund for payment to a member of a TPI benefit.

Chen v Marcolongo [2009] NSWCA 326

There are two appeals concerning setting aside conveyances of Property. One concerned breach of fiduciary duties in an agency relationship. However the special leave application appears to relate to the issue of setting aside a Conveyance of Property which was executed with an intention to defraud creditors pursuant to the Conveyancing Act 1919 (NSW). In particular the case concerns the necessary fraudulent mental state required for the purposes of that Act.

Notable case for which special leave was refused:

St Alder v Waverley Local Council [2010] NSWCA 22. This case was highly publicised. It related to a number of homeless people who had, for some time (two to eight years), set up residence in the Bondi Pavilion in Bondi Park. When the Council told them to get out, those who had been living there argued that a license or lease had been created informally, or that they were estopped from so denying (interestingly they also argued that the council somehow owed them fiduciary duties).

MIA:

At one point the leave application in International Litigation Funding Partners v Brookfield Multiplex Ltd [2009] FCAFC 182 was listed in this month’s business list. This case was controversial when it found that a class action which is funded through litigation funding may be a Managed Investment Scheme, and would thereby be subject to regulation by the Corporations Act 2001 (Cth). However the case was pulled from the list at some point and was never called on. It may be that the case has only been postponed for next month, but if it has been settled I would be very interested to know. Does anyone out there have any information on the status (that is not confidential)?

[Update 20/5/10: further discussion on ILFP v Brookfield here.]