Thursday, November 18, 2010

Nevember Special Leave Rundown... so far

The High Court hasn't yet released its official list of cases for which special leave was granted on Friday. But at least some of the transcripts are up on Austlii (thanks for the heads up from Jeremy Gans). So the list (so far) is as follows:

Stoddart v Boulton [2010] FCAFC 89

Leave was granted in an appeal from the Full Court of the Federal Court.

This case concerns the Australian Crime Commission's power to compel answers to questions relating to serious Commonwealth crimes under s 30 of the Australian Crime Commission Act 2002 (Cth). Specifically, Mrs Stoddart is claiming that she can avoid answering questions relating to her husband under the protection of spousal privilege. The Full Court found that spousal privilege was not necessarily excluded by operation of the Act, upholding Mrs Stoddart's claim for privilege.

Poniatowska v Director of Public Prosecutions (Cth) [2010] SASCFC 19

As predicted, leave to appeal from this decision of the Full Court of the South Australian Supreme Court was referred to an enlarged bench of the High Court (see some background in our previous post here).

The case concerns the elements that need to be established by the prosecution in a charge of obtaining a financial advantage from the Commonwealth (knowing that there was no entitlement to such an advantage etc) contrary to s 135.2 of the Criminal Code (Cth). It is a classic case of failing to inform Centrelink of certain income. The Full Court set aside the convictions on the ground that no obligation to inform Centrelink of a change in circumstances had been established. (The reasoning of the majority, in my opinion, is quite strong on a strict interpretation of the legislation, so the case must come down (which Sulan J concluded in dissent) to the extent that the intended operation of the legislation will prevail over shockingly poor drafting.)

Insight Vacations Pty Ltd v Young [2010] NSWCA 137

Leave was granted to appeal from this decision of the New South Wales Court of Appeal.

The case involves a woman who was injured while travelling in Slovakia. She sued her travel company in Australia in tort and contract. The trial judge found the travel company liable for breach of contract for failing to exercise due care, contrary to a term of the contract implied by s 74(1) of the Trade Practices Act 1974 (Cth) ("TPA"). In so finding, the trial judge declared an exclusion clause of the contract void because it purported to exclude the operation of the TPA (contrary to s 68 of the TPA).

There are two principal issues in the case. First, the case concerns whether s 5N of the Civil Liability Act 2002 (NSW), a NSW provision which preserves the ability to waive the contractual requirement for due care in contracts for 'recreational activities', is inoperative as it is inconsistent with s 68 of the Trade Practices Act 1974 (Cth), a Commonwealth provision which invalidates any term purporting to exclude a provision of that Act. Secondly, the case concerns whether 'disappointment loss' for breach of contract comes under the definition of 'non-economic loss', and is therefore subject to limitations under s 16 the Civil Liability Act 2002 (NSW).

Thursday, November 11, 2010

New HCA Judgments: Totani, Anstis and M69 of 2010

Three new judgments handed down today. These three cases are probably among the three biggest cases of the year (well, at least Totani and M61). Given the complexity and importance of each of these cases, I will only be able to state here the general outcome of each case, but we'll have some commentary up soon:

South Australia v Totani [2010] HCA 39

The High Court (Hayne Heydon J dissenting) has dismissed this appeal against a decision of the Full Court of the Supreme Court of South Australia.
This is the case that Constitutional lawyers have beeen waiting for all year, not least because we all knew that the appeal would be dismissed (at least since the Court asked for further particulars of how it might dismiss the appeal). The case deals with the issue of the validity of control orders under the Serious and Organised Crime (Control) Act 2008 (SA) (i.e. the bikie legislation). The question is the degree to which a Supreme Court of a State can make an order, the subject of which is dictated by the executive (i.e. contrary to Kable). The impugned legislation required the Court to make a determination that individuals were subject to control orders if they are a member of a group which the executive had declared to be a declared organisation. The High Court has held that the Supreme Court of South Australia was correct in determining this to be contrary to the institutional integrity of a Court and therefore constitutionally invalid.

Commissioner of Taxation v Anstis [2010] HCA 40

The High Court has dismissed this appeal against a decision of the Full Court of the Federal Court of Australia.

I have previously set out the findings of the Full Court in some detail, here. The issue is whether a student on Centrelink payments (specifically Youth Allowance) is able to deduct her expenses as an expense for "the purpose of gaining or producing assessable income". The Court dismissed the appeal from the Full Court finding that such a deduction was valid.

Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41

The High Court has [allowed (though dismissed in part) an application for judicial review in the High Court's original jurisdiction]. this application.

This case concerned the offshore processing procedures of immmigrants currently being engaged by the Australian Government. The High Court has determined that the offshore processing procedure does not - contrary to popular Governmental belief - insulate or immune the Government from requirements of the Migration Act 1958 (Cth) and administrative principles of procedural fairness.

Thursday, November 4, 2010

New HCA Judgments: Selected Seeds v QBEMM, and R v Nguyen

Two new decisions were handed down by the High Court yesterday. Both were unanimous. They were:

The Queen v Nguyen [2010] HCA 38

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

The respondent was found guilty by jury of murder and attempted murder by complicity in relation to an attempt to collect on a drug debt. The Court of Appeal quashed those convictions on the grounds that the verdicts were “unsafe and unsatisfactory” in the sense that the verdicts were unreasonable or could not be supported having regard to the evidence. The prosecution appealed this decision to the High Court and submitted that, applying well-established principles to the facts of this case, it was open to the jury to convict the respondent of both murder and attempted murder. The High Court unanimously agreed with this submission.

In so doing, the Court held that this was an exceptional case in which the prosecution should have special leave to appeal against the orders of an intermediate court quashing a conviction by a jury and directing entry of a verdict of acquittal. The Court decided that it was in the interests of the justice generally, and in the interests of justice in this particular case, that the error made by the Court of Appeal be corrected.

However, the respondent submitted that his application for leave to appeal the Court of Appeal should have succeeded on a ground alleging misdirection of the jury in relation to the availability of the charge of manslaughter. The Court agreed that the trial judge’s directions to the jury were erroneous, and, due to this error, held that it cannot be said that there was no substantial miscarriage of justice to the respondent in not leaving manslaughter as an available verdict. The Court held that this misdirection required that the respondent’s application for leave to appeal to the Court of Appeal be granted, the appeal allowed, his convictions quashed, and an order that a new trial be had.

In its orders, the Court granted both parties special leave to appeal or cross-appeal as the case requires, treating the appeal and cross-appeal as instituted and heard instanter, and allowed the appeal and cross-appeal. In sum, the Court made those orders which it held the Court of Appeal should have made. Finally, the Court noted that any decision further to prosecute the respondent was a matter for the DPP.

Selected Seeds Pty Ltd v QBEMM Pty Limited [2010] HCA 37

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

This case is about seeds, grass, and the proper construction of an “exclusion clause” in an insurance policy. In essence, the appellant, Selected Seeds Pty Ltd, is a grain and seed merchant who had purchased grass seed from a third party. This seed was contaminated by an inferior seed and largely not the type it was represented to be. Eventually, this seed reached R and J Shrimp, who instituted proceedings in the Federal Court in 2006 claiming damages. Although these proceedings were ultimately settled in 2008, the appellant’s insurers, the respondents in this case, refused to indemnify the appellant for that loss. The respondents, in proceedings in the Supreme Court of Queensland, argued that the appellant’s supply of the seed was too remote from the damage suffered by the Shrimps and so did not come within the insuring clause. Of especial importance in the insurance policy was an “Efficacy Cause”, which excluded liability from particular defined events, and this was the focus of the Court’s decision.

The Efficacy Clause operated to exclude liability when a product fails to achieve its intended purpose. The respondents contended that this clause was engaged because the appellant’s liability arose from the failure of the seed planted by the Shrimps to “fulfil its intended use or function”. The Court held that this proposition implied that a purpose of the seeds was that they would not injure.

In deciding whether the liability of the appellant for the damage caused to the Shrimps’ land arose out of the failure of the seeds to fulfil their function, and thus be excluded under the second limb of the Policy’s Efficacy Clause, the Court answered in the negative. Liability, the Court held, arose by reason of the direct effect of the seeds upon the land. That is, the liability to the Shrimps was for what the seed did; not what it failed to achieve. Therefore, the Court held that the Efficacy Clause did not apply and allowed the appeal.

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