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).