September Special Leave Rundown

Plenty of special leave grants on Friday, they were:

Byrnes v Kendle [2009] SASC 385 (and subsequent decision at (No 2) [2010] SASC 64)

Leave was granted in an appeal from the Full Court of the South Australian Supreme Court. The case concerned a written “acknowledgement of trust” by Kendle in favour of Byrnes over half of a residential property which was then leased to Kendle’s son. The Court found that there was a declaration of trust but that Kendle’s failure to collect rent from the son did not amount to a breach of duty by Kendle as trustee and, in the alternative, Byrnes had acquiesced in the breach. The key issue raised in this decision is the determination of the scope of a trustee’s duties by reference to the nature of the trust.

In a subsequent hearing of the appeal, the appellant tried to argue that the Full Court should reopen the case because it proceeded on an incorrect assumption of fact. This raises what is sometimes a delicate distinction between matters that are sufficient to reopen a case, and matters that ought to be the subject of an appeal.

Jemena Asset Management Pty Ltd v Coinvest Limited [2009] FCAFC 176

Leave was granted on limited grounds in an appeal from the Full Court of the Federal Court dismissing an application to declare provisions of the Construction Industry Long Service Leave Act 1997 (Vic) invalid. The appellants argued that certain provisions in that Act, which require employers to make contributions towards long service leave benefits for their employees, and the Federal Employment Awards to which the employers are subject, are inconsistent within the meaning of s 109 of the Constitution. The appellants said that the Federal Employment scheme intends to “cover the field” relating to long service leave and so the State law is invalid under s 109. The Court said that the “field” which the Federal scheme covers does not extend to that with which the State legislation deals, and so the State law is not invalid.

Haxton v Equuscorp Pty Ltd [2010] VSCA 1

Leave was granted in an appeal from the Full Court of the Victorian Supreme Court. The case concerns the right in restitution, on the ground of “total failure of consideration”, to recover moneys provided under loan agreements which have been found to be illegal and unenforceable. The case also concerns the topic of whether such a claim in restitution is capable of assignment or whether it is, in the words of the authorities, “a bare cause of action” (a topic that is very close to this author’s heart).

R v Momcilovic [2010] VSCA 50

Leave was granted in an appeal from the Full Court of the Victorian Supreme Court. The case involved a defendant who was charged with possession of drugs for sale. The evidence was that the drugs were found in the applicant’s apartment. Under s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), the defendant was deemed to be in possession of the drugs unless she ‘satisfie[d] the court to the contrary’. The Full Court found that this provision could not be interpreted in a manner that was consistent with the presumption of innocence as provided for by the Charter of Human Rights (Vic). Accordingly the Full Court made a declaration of incompatibility under s 36 of the Charter.

Commissioner of Taxation v BHP Billiton Finance Limited [2010] FCAFC 25

Leave was granted in an appeal from the Full Court of the Federal Court. The Full Court upheld the decision of the trial judge who had found that BHP Billiton’s finance company had carried on the “business of lending money” for the purposes of the Income Tax Assessment Act 1997 (Cth) and was therefore able to write off around $2.2 billion of bad debts as tax deductions.

Gordian Runoff Limited v Westport Insurance Corporation [2010] NSWCA 57

Leave was granted (on limited grounds and referred to an enlarged Court on other grounds) in an appeal from the Full Court of the Supreme Court of New South Wales. The case concerns the nature of an appeal from an award of an arbitrator following an arbitration conducted under the Commercial Arbitration Act 1984 (NSW). The decision chiefly deals with the similarities between such an appeal and an application for judicial review. It also deals with the degree of detail necessary in an arbitrator’s reasons.

Firedam Civil Engineering Pty Ltd v Shoalhaven City Council [2010] NSWCA 59

Leave was granted in an appeal from the Full Court of the Supreme Court of New South Wales. The case concerns a building contract which stated that certain disputes are to be referred to for “expert determination” which will be binding on the parties. The Full Court found that the expert report was not binding on the parties because the expert had displayed inconsistencies in his reasons for determination. The important issue in this case is the degree to which an expert must err before a court will declare the expert’s determination to be not binding on the parties.



Notable cases for which leave was refused:

The High Court refused special leave for Qantas to appeal from the Full Court of the Federal Court’s decision in Leonie's Travel Pty Ltd v Qantas Airways Limited [2010] FCAFC 37. In that case the Full Court found that Qantas was not entitled to make unilateral determinations under agency contracts to the effect that certain commissions were not payable to travel agencies. The full quantum of the amount due by Qantas to the travel agents is not yet calculated (at [105]) but it is reported to be in excess of $26 million.