May Special Leave Rundown

There were four grants of special leave on Friday:

Miller v Miller [2009] WASCA 199

This case raises the issue of the - so called - illegality defence to a claim in negligence. The plaintiff was injured in a car crash, in circumstances where she knew that the car in which she was travelling had been stolen and that the driver had been drinking and did not hold a driver’s licence. She brought a claim in negligence against the driver. The Full Court of Western Australia held that the defendant did not owe a duty of care to the plaintiff by virtue of the fact that the parties were each involved in a joint criminal enterprise.

Commissioner of State Revenue v TEC Desert Pty Ltd [2009] WASCA 128

The issue in this case is whether the sale of unsevered fixtures to land attracts stamp duty as a ‘sale, transfer or conveyance of an interest in land’. The case considers the nature of a person’s proprietary right to fixtures when the person has no proprietary interest in the fee simple (at least for the purposes of stamp duty). This is a case that is bound to be a favourite for first year Property Law lecturers.

British American Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414

This litigation arises out of a claim against a tobacco company in negligence claiming it breached its duty of care because it knew that the smoking of its tobacco products could cause lung cancer and failed to warn the plaintiff. The plaintiff claims that British American Tobacco destroyed files relevant to the claim. This is an appeal from a decision of a judge of the Dust Diseases Tribunal refusing to recuse himself for apprehended bias. British American Tobacco say that an apprehension of bias arises because the Judge had previously made comments that could be perceived as a predetermination of the issue, when giving judgment in other proceedings on an interlocutory application raising similar allegations of file destruction against British American Tobacco.

SZJSS v Minister for Immigration and Citizenship [2009] FCA 1577

Another case on what constitutes jurisdictional error in immigration decisions. In this case the Tribunal gave no weight to certain evidence because the applicant had solicited that evidence themself. The Federal Court found that this amounted to jurisdictional error and quashed the Tribunal’s decision.



Notable cases for which special leave was not given

Does any one remember the High Court decision in Bruce Burrell v The Queen [2008] HCA 34 where the High Court allowed an appeal from the Supreme Court of NSW? In that case the Supreme Court had tried to reopen a case upon which it had delivered judgment because there had been serious factual errors in the judgment. The High Court held that it had no power to do this, and so set aside the new decision but also set aside the old decision given the factual inaccuracies, and sent the case back to the Supreme Court for determination. Well, the Supreme Court did so, in Burrell v Regina [2009] NSWCCA 163 and dismissed the appeals. The High Court refused special leave from that decision on Friday, finally putting the 1997 kidnapping and presumed murder of Kerry Whelen to rest.