October Special Leave Rundown (No 2)

Three cases were given special leave to appeal at the blue moon Special Leave applications on Friday:

Director of Public Prosecutions (WA) v Bowers [2010] WASCA 46
and
Director of Public Prosecutions (WA) v White [2010] WASCA 47

Leave was granted in these two appeals which have been heard together in the Court of Appeal of the Supreme Court of Western Australia. These cases concern the breadth of the Criminal Property Confiscation Act 2000 (WA). In particular, it deals with the definition of what property is considered to be 'crime-used' for the purposes of s 146 and therefore potentially subject to a confiscation order. In some respects, the case turns on the approach that should be taken to statutory interpretation in legislation which is draconian in its effect.

Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed) v Australian Securities and Investments Commission [2010] FCAFC 49

Leave was granted in an appeal from the Full Court of the Federal Court. The case concerns applications for winding up by ASIC.

By virtue of the appointment of managers and receivers to Lanepoint, there arose, by virtue of the Corporations Act 2001 (Cth), a presumption of insolvency upon which ASIC relied to bring a an application for an order winding up Lanepoint. Lanepoint however claimed that it was not insolvent by virtue of a series of transactions which lowered one of its liabilities from around $6 million down to about $2 million. ASIC claimed that these transactions were invalid or void and should not be considered in determining the solvency of Lanepoint.

The question for the High Court - which the Full Court answered in the negative - will be whether the winding up proceedings are an appropriate venue to enter an enquiry as to the effectiveness of certain complex transactions with other companies who are not party to the proceedings.

Abetz challenge withdrawn

Australia's own private birther challenge was called on in the High Court today, where the Court sat as the Court of Disputed Returns to determine whether Senator Eric Abetz is disqualified from sitting due to his German citizenship.

Perhaps uncharacteristically for a birther challenge, the challenge is not being pursued because incontrovertible evidence of Abetz’s renunciation of citizenship has come to light.

The challenge was brought by Tasmanian antiques dealer John Hawkins. Counsel for Hawkins today sought leave to withdraw the petition.

Generally, such challenges are referred to the Federal Court for hearing rather than being directly dealt with by the High Court. Last time they referred a case, as far as I know, was back in 2009 in relation to a, then, lesser known independent named Rob Oakeshott.

New HCA Judgments: WorkCover v Amaca, Pollock and Finch

Three new decisions handed down by the High Court today. All were unanimous, they were:

WorkCover Queensland v Amaca Pty Ltd [2010] HCA 34 

The High Court has unanimously allowed this appeal against a decision of the Court of Appeal of the Queensland Supreme Court.

WorkCover paid compensation to a worker for injury, including pain and suffering, caused by the worker contracting mesothelioma in the course of his employment. WorkCover brought proceedings under s 207B  the Workers' Compensation and Rehabilitation Act 2003 for indemnification of that payout from the employer, Amaca (né James Hardie). However, between the payout by WorkCover to the employee and the bringing of indemnity proceedings against Amaca, the employee died. Amaca argued that because s 66 of the Succession Act 1981 prevented the survival of actions for pain and suffering after death, WorkCover was thereby barred from seeking indemnity for that amount.

The Court said that s 66 of the Succession Act did not prevent WorkCover recovering the indemnity. It was said that that Act serves only to limit the damages that can be recovered on an action brought by the estate of a deceased. The wording of the Act and the mischief it seeks to avoid both suggest that it does not limit WorkCover’s action.

Pollock v The Queen [2010] HCA 35

The High Court has unanimously allowed this appeal against a decision of the Court of Appeal of the Queensland Supreme Court.

Following a drug and alcohol fuelled evening filled with arguments and accusations of abuse, Andrew Pollock struck his father with a rock and killed him. At trial the issue of provocation was put to the jury. The judge provided the jury with a list of seven propositions, the proof of which by the prosecution would displace the defence of provocation. Among these propositions was the assertion that 'the loss of self-control was not sudden'. The jury asked the judge to elaborate on the meaning of sudden, to which her Honour provided an OED account of ‘sudden’ which comprised concepts such as ‘immediacy’. Another proposition read “when Andrew Pollock killed [his father] there had been time for his loss of self-control to abate”.

The Court said that the existence of a period of time between the provocative conduct may be evidence that shows that the impugned act was not caused by provocation but it does not of itself displace such a defence. The references by the trial judge to terms such as ‘sudden’ and ‘immediate’, in the absence of elaboration, would have misled the jury into misunderstanding what was required to be proved. The Court said that this error had occasioned a miscarriage of justice and a new trial – another, this was already a retrial – was ordered.

Finch v Telstra Super Pty Ltd [2010] HCA 36

The High Court has unanimously allowed this appeal against a decision of the Court of Appeal of the Victorian Supreme Court.

The applicant, Finch, claimed to be unable to work due to gender orientation related depression. Finch made an application for a payout of Total and Permanent Invalidity benefit from his superannuation fund. The trustee rejected the claim. The deed required that the employee be absent from work for 6 months and undertake a rehabilitation course. It also required that the trustee be satisfied that the employee has ceased to be an employee and is unlikely to engage in gainful work.

The bulk of the High Court’s reasons deal with the construction of the superannuation deed. This discussion led to the rejection of a finding by the Court of Appeal that a requirement in the deed that the employee be absent from work for 6 months, related only to work at the original workplace, Telstra. The Court rejected this and moved on to the more interesting issues of control of trustee action.

The Court refused to revisit the cases which follow Karger v Paul [1984] VR 161, in order to consider the circumstances in which a ‘discretionary’ decision of a trustee will be set aside in the absence of good faith. However, their Honours did say that at least the decision in the deed in this case by the trustee that he or she is satisfied that the employee has ceased work is by no means a discretionary decision in the sense of Karger v Paul. In any event, the Court agreed with the first instance judge that the trustee had failed to ‘give the matter "genuine" consideration in that it had failed to pursue sufficient inquiries’. The Court remitted the matter to the trustee for reconsideration.

October Special Leave Rundown

Of the 6 or so cases that applied for special leave to appeal today, not a single one received a grant of leave.

The cases included an appeal against the conviction for sexual offences of William Kamm (better known to some as the Little Pebble, antipope Peter II the Roman of the Order of St Charbel).

Also denied special leave was the decision of Da Ros v Qantas Airways Limited [2010] NSWCA 89 which found that a flight attendant who was injured while riding their bicycle recreationally on a stop over between flights could claim under Workers' Compensation legislation.

The case of International Finance Trust Company Ltd v New South Wales Crime Commission (No 2) [2010] NSWCA 46 was "removed from the list". That case arises out of the same facts of its namesake High Court decision from last year ([2009] HCA 49). The High Court had dismissed proceedings on the ground that the section under which it was brought was contrary to the Constitution and invalid. The NSWCA then found that certain consent orders made in the course of those proceedings remained in farce notwithstanding the High Court's dismissal of the proceedings.