Wednesday, March 31, 2010

Appeal allowed in Republic of Croatia v Snedden

Republic of Croatia v Snedden

The High Court has found in favour of the Republic of Croatia and has confirmed an order of extradition of 'Captain Dragan' for war crimes. They have reserved their reasons but the transcript shows the following orders:

FRENCH CJ: The Court is of the opinion that the appeal should be allowed and orders made for the confirmation of the magistrate’s orders. Having regard to the subject matter of the appeal, the Court is of the opinion that orders should be made now. The Court will publish its reasons for decision at a later date.

The orders of the Court are:

Appeal allowed with costs.

Set aside the orders of the Full Court of the Federal Court of Australia made on 2 September 2009 and the further orders of that court made on 4 September 2009 and, in place of those orders, order that:
(a) In addition to the order made by Justice Cowdroy on 3 February 2009, it be ordered that the orders made by Deputy Chief Magistrate Cloran on 12 April 2007 are confirmed;
(b) Subject to paragraph (a), the appeal be dismissed with costs.

Analysis will follow when the reasons are published.

Tuesday, March 30, 2010

New HCA Judgments

Two new decisions were handed down today. Still continuing with the French J Court’s welcome practice of unanimity. We'll have the summaries up soon but for now:

Wallaby Grip Limited v QBE Insurance (Australia) Limited; Stewart v QBE Insurance (Australia) Limited [2010] HCA 9

This is the second asbestos related case for the year. The case raises some interesting issues of statutory interpretation. It relates to a claim for indemnity against a compulsory insurer. There was no evidence tendered at trial of the scope (ie limited or unlimited) of the indemnity because the insurer had failed to produce the policy document when requested. The insurer then argued that, because there was no proof on the issue of the scope of the indemnity, therefore the policy should be assumed to be limited to the statutory minimum. The Court allowed the appeal. It found that, as a matter of statutory interpretation, once the existence of the contract was established, the insurer had the onus of proof in establishing that the indemnity was limited.

[UPDATE 8/0610: A lamp post summary of the case can now be found here.]

Commissioner of Taxation v Bamford; Bamford v Commissioner of Taxation [2010] HCA 10

This case considers the determination of assessable income, for income tax purposes, of a beneficiary of a discretionary trust. There is discussion of the intersection of the law of trusts and the law of taxation, in the context of the degree to which a trust deed may affect what is considered to be income or “a share” within the meaning of the taxation legislation. The appeal was dismissed. Though the Commissioner was lucky the Court didn’t retract special leave. See this exchange on day two of the hearing:

MR GLEESON: Your Honours, we have provided the Court with two documents which seek to clarify the matter I put yesterday.

HEYDON J: But they are a complete retraction of what you said in the last 15 minutes yesterday.

MR GLEESON: Your Honour, to the extent what I said in that period overstated the Commissioner’s position, I seek to withdraw it. I apologise. The fault is mine, not the Commissioner’s.

HEYDON J: Mr Gleeson, if the Court had known on 2 November 2009, I think it was, that those things were going to be said, there would have been a very strong argument against granting special leave to appeal. Why should not special leave be revoked now?


[UPDATE 20/5/10: A lamp post summary of the case can now be found here.]

Monday, March 29, 2010

A novel approach to funding a High Court challenge

I just stumbled upon this site which is seeking financial contributions to fund a High Court challenge to the validity of federal legislation. The impugned Act provides federal funding to schools for a chaplaincy program. I haven't seen a site like it before.

It is worth noting that, as far as I know, Queensland (the resident state of the website) has not abolished the common law torts and offences of maintenance and champerty, as some other states have. I am not saying that this site is even close to violating those rules, as it is generally considered an exception to the rules against maintenance to offer funds charitably (and each person funding the High Court challenge is likely to have as much standing as the person who has started the website). However, it is interesting to think how the internet might be used to coordinate more profitable litigation funding investment opportunities.

Thursday, March 25, 2010

New HCA Judgment

One new decision was published today. We'll have the summary up soon but for now:

Berenguel v Minister for Immigration and Citizenship [2010] HCA 8

The Court quashed a decision rejecting the plaintiff's visa application. The Court found that the minister had misconstrued a provision of the Migration Regulations 1994 (Cth) relating to the timing of the provision of an English Language Proficiency test.

This case was heard in the Courts original jurisdiction (before three Judges) under s 75 of the Constitution. It was decided back in early March. Like many s 75 [immigration] applications it was ex temped. Unlike many s 75 [immigration] applications it was successful. Ordinarily the Court does not publish the ex tempore reasons of small applications like this but for some reason this one made it to the medium neutral citation.

[Update: the words in square brackets were added after the original post.]

[UPDATE 09/4/10: A lamp post summary of the case can now be found here.]

Tuesday, March 23, 2010


MRR v GR [2010] HCA 4 (3 March 2010)

Majority: French CJ, Gummow, Hayne, Kiefell and Bell JJ (unanimous)

Decision: Appeal allowed

Parents separated shortly after moving to Mt Isa. Father had good job prospects and comfortable residence in Mt Isa. Mother had few job prospects and needed to live in a caravan park. Mother wanted to move back to Sydney. Parenting orders were made under s 65DAA of the Family Law Act 1975 (Cth) that parents spend equal time with the child and reside in Mt Isa. The High Court said that consideration of the ‘best interests of the child’ and of the ‘reasonable practicability’ of an order are both prerequisites to an order under s 65DAA. The Court found that the judge did not give adequate consideration to whether an order requiring both parents to remain in Mt Isa was ‘reasonably practicable’.

The mother and father of M moved from Sydney, where they had lived for 14 years, to Mt Isa for the purpose of a new job for the father. However 7 months after the move, the parents’ relationship broke down.

Although the father had an expectation of ongoing employment, the mother had limited job opportunities in Mt Isa compared with Sydney. Also, due to the lack of affordable rental properties in Mt Isa, the mother had to live in a caravan park following the separation.

Unsurprisingly, the father wanted to stay in Mt Isa and the mother did not.

The first instance judge ordered, pursuant to the Family Law Act 1975 (Cth) (“the Act”), that it was in the best interests of the child that both parents remain in Mt Isa in order to allow for equal shared parental responsibility as well as equal time spent with each parent.


If a court has ordered ‘equal shared parental responsibility’ then s 65DAA requires a court to make orders as to the amount of time the child spends with each parent. An order can be made for equal time (sub-s (1)) or substantial and significant time (sub-s (2)). Section 65DAA relevantly provides:
(1) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
(2) If:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

The Court found that the Judge had failed to give adequate consideration to s 65DAA(1)(b), namely that an order of equal time was ‘reasonably practicable’.

The two criteria of s 65DAA(1) and (2), that is, ‘best interests of the child’ and ‘reasonable practicability’ of the order are both necessary preconditions to the exercise of power under s 65DAA. The Court found (at [14):
[The Judge at first instance] treated the answer to the firstmentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances.
This was found to be so, notwithstanding the stated paramount importance in the Act of the ‘best interests of the child’, notably in ss 60B(1), 60CA and 61DA, as well as in s 65DAA itself.

Their Honours concluded that (at [16]):
Had consideration been given to the question [of reasonable practicability] only one conclusion could have been reached, one which did not permit the making of the order.
Accordingly, the appeal was allowed, the parenting order set aside and the matter remitted for rehearing.


The Court tries to put this case as a mere illustration that a court must have regard to the ‘reasonable practicability’ of a ‘time spent’ order. But really this case goes to the definition of ‘reasonable practicability’. In reality there is no doubt that the initial Judge believed that the order was reasonably practicable. It wouldn’t have been ordered otherwise. The point of this case is that the HCA found that the order was not ‘reasonable practicability’ within the meaning of s 65DAA.

It would have been helpful if the Court had more clearly confessed this as the objective of the decision, so that it could provide a better indication of what factors will be relevant to the ‘reasonable practicability’ of a ‘time spent’ order. From this case we can only infer the relevance of a few salient characteristics of this family’s situation, for example, that one parent’s comfortable position will not prevail over the other’s when there are better opportunities in another town. It also seems that one cannot always regard the status quo, prior to separation, as determinative as to what will be ‘reasonably practicable’ for the purposes of the Act.

Monday, March 22, 2010

SA v Lampard-Trevorrow [2010] SASC 56

The liability of the crown for the unlawful removal of aboriginal children from their families during the stolen generation is one step closer to the the High Court's consideration.

The Full Court of the Supreme Court of South Australia has today unanimously (Doyle CJ, Duggan and White JJ) dismissed the appeal against the decision of Gray J in Trevorrow v The State of South Australia [2007] SASC 285 which ordered substantial damages in favour of an aboriginal man who had been wrongfully and forcefully removed from his family and put into foster care.

We will discuss the matter in due course when the matter inevitably goes to the High Court but in the mean time it is worth noting that the plaintiff was successful in arguing that the State was liable in negligence as well as misfeasance in public office. However, the appeal against the trial Judge's finding that the State had breached a fiduciary duty to the plaintiff was allowed.

[Update 25/3/10: decision now available on Austlii.]

Muslimin v The Queen

Muslimin v The Queen [2010] HCA 7 (10 March 2010)
Majority: French CJ, Gummow, Hayne, Heydon and Kiefell JJ (unanimous)
Decision: Appeal allowed

The appellant was convicted of an offence of having a foreign boat equipped with ‘nets, traps and other fishing equipment’ intended for sedentary fishing under s 101 of the Fisheries Management Act 1991 (Cth). That section applied only within the Australian Fishing Zone (AFZ), however a deeming provision of the Act (s 12) purported to extend the operation of any section beyond the AFZ if it is a provision made ‘in relation to fishing’. The issue before the Court was whether the offence for which the appellant was convicted extends beyond the AFZ by virtue of s 12. The High Court ruled, unanimously, that as a matter of statutory interpretation, s 101 relates only to a fishing boat rather than an act of fishing. Accordingly, it is not a provision made ‘in relation to fishing’ and therefore it does not extend beyond the AFZ.

The appellant, an Indonesian national, was convicted of an offence under s 101 of the Fisheries Management Act 1991 (Cth) (the Act) which makes it an offence to have a foreign boat equipped with ‘nets, traps and other fishing equipment’ intended for sedentary fishing within the Australian Fishing Zone (AFZ). That section provides:
101 Having foreign boat equipped for fishing—strict liability offence(1) A person must not, at a place in the AFZ, have in his or her possession or in his or her charge a foreign boat equipped for fishing unless:
(a) the use, or presence, of the boat at that place is authorised by a foreign fishing licence, or a port
permit; or
(b) a Treaty licence is in force in respect of the boat; or
(c) the boat’s fishing equipment is stowed and the boat is at that location in accordance with the approval of AFMA given under, and in accordance with, the regulations; or
(d) the boat’s fishing equipment is stowed and the boat was travelling through the AFZ from a point outside the AFZ to another point outside the AFZ by the shortest practicable route; or
(e) the use of the boat for scientific research purposes in that area is authorised under a scientific permit.
(1A) For the purposes of paragraphs (1)(c) and (d), a boat’s fishing equipment is not stowed unless all of the boat’s:
(a) nets, traps and other fishing equipment; and
(b) associated equipment, including buoys and beacons;
are disengaged and secured, and where practicable stored inside the boat, in such a manner as not to be readily available for fishing.
Section 12 of the Act, a deeming provision, provides for the extension of certain provisions of the Act beyond the AFZ to other areas of the Australian continental shelf:

12 Sedentary organisms—Australian continental shelf
(2) Where by this Act (other than Part 5), or the regulations,
provision is made in relation to fishing in the AFZ or a fishery,
such provision, to the extent that it is capable of doing so,
extends by force of this section to fishing for sedentary
organisms, in or on any part of the Australian continental
shelf not within the AFZ or the fishery as if they were within
the AFZ or the fishery.
The appellant was found outside of the AFZ with a foreign fishing boat. The question for the Court was whether s 101 was a ‘provision ... made in relation to fishing’, such that s 12 would extend the scope of s 101 to apply outside of the AFZ.


The Court found that the reference in s 12(2) to provisions of the Act “made in relation to fishing”, should be construed using its ordinary meaning. Therefore in the context of the Act, ‘fishing’ should be read as the act of fishing. As such the extension provided by s 12(1) should be constrained to provisions of the Act which deal with the act of fishing: at [15].

In relation to the s 101 offence the Court determined that unlike other offences in Division 5 of the Act (which is titled ‘Foreign boats – additional enforcement provisions’), s 101 relates ‘to the existence of a state of affairs, namely having possession or charge of a particular kind of boat: a foreign boat equipped for fishing’: at [16]. In contrast, the other provisions in Division 5 of the Act ‘are directed expressly to the activity of fishing’: at [16]. As such the Court found that s 101 was not ‘made in relation to fishing’ and as such not subject to the extension afforded by s 12(2).


The High Court has decided Muslimin in a narrow fashion, relying upon construction and interpretation of the Act. The Court did not need to examine the more complex, and for that matter interesting, question of whether, if s 101 had applied beyond the Australian Fishing Zone, would it be congruous with international law. It should be noted that, since the decision, the Australian Fisheries Management Authority has subsequently stated that it will likely drop similar charges against other Indonesian fishermen. Further than that, Muslimin provides only a relatively innocuous example of statutory interpretation.

Tuesday, March 16, 2010

March Special Leave Rundown

Exceptionally high hit rate this month with 55% of leave applications being either granted or referred to the Full Court. Here are the cases that received special leave on Friday:

Workcover Queensland v Amaca Pty Ltd [2009] QCA 72 

The latest asbestos case to reach the High Court. In this case Workcover had paid out compensation to a sufferer of mesothelioma. Unfortunately the sufferer died before he could initiate proceedings against the employer, Amaca (ie James Hardie). The relevant Act allows the insurer to bring proceedings for an indemnity against the employer, but the Qld SCCA found that this indemnity was limited to liability for loss that would survive the death of the deceased (eg money paid to the deceased for pain and suffering was not included in the indemnity).

See abridged version at Barrister Direct.

Pollock v The Queen [2009] QCA 268

This is an appeal from the retrial of Andrew Pollock, charged with murdering his father. The case brings up several considerations in respect of the defence of provocation, including jury directions and the role of the prosecution in answering that defence.

Public Trustee of Queensland v Fortress Credit Corporation (Aus) 11 Pty Ltd [2009] QCA 282

This case concerns the requirement of registration of a 'variation of' or a 'creation of' a charge under the Corporations Act 2001 (Cth). It specifically considers what is meant by a “variation in the terms of the charge” under s 268 and what constitutes the creation of a charge under s 263.

Selected Seeds Pty Ltd v QBEMM Pty Limited [2009] QCA 286 

This case considers the construction of insurance contracts and particularly the proper approach to exclusion clauses in such contracts.

Forbes v The Queen [2009] ACTCA 10

A fascinating case in which the accused was convicted of rape, almost exclusively on DNA evidence. It raises squarely the status in Australian Law of the prosecutor’s fallacy. I have not seen the grounds of appeal but looking at the decision there may be some argument regarding the relevance of defence witnesses in the finding of guilt.

The question of leave has been referred to the full court for a full hearing.

 [UPDATE 20/5/10: Special leave to appeal refused.]

Spencer v Commonwealth of Australia [2009] FCAFC 38

I posted about Spencer on Friday. Peter Spencer claims that there has been an acquisition of his property on other than just terms contrary to s 51(xxi) of the Constitution. It is largely similar to both ICM and Arnold, except that it relates to restrictions on the use of land rather than water. His claim was struck out based on the interpretation of ss 96 and 51(xxxi) that was largely rejected in ICM. The question will therefore presumably be whether there has been an ‘acquisition of property’ (fairly raised on the pleadings).

The question of leave has been referred to the full court for a full hearing.

Kostas v HIA Insurance Services Pty Limited T/as Home Owners Warranty [2009] NSWCA 292
This case considers the proper approach to statutory appeals from a Tribunal “with respect to matter of law”. It deals with the distinction between errors of law and errors of fact as well as the relevance of what constitutes an error of law in judicial review proceedings as apposed to statutory appeal.

Aid/Watch Incorporated v Commissioner of Taxation [2009] FCAFC 128
The case concerns the proper test for determining what bodies may obtain a tax exemption as a charitable institution. In particular, the issue is whether a body’s purpose of ‘influencing government policy’ contraindicates a charitable purpose. A number of other charities appear to be considering this to be a test case for their own status as a charitable institution.

Travelex Ltd v Commissioner of Taxation [2009] FCAFC 133

This case considers whether the conversion of Australian Dollars into foreign currency is a taxable supply which attracts GST liability.

CGU Insurance Ltd v One.Tel Ltd (In Liq) [2009] NSWCA 282

This case has quite a complex factual scenario but ultimately the issue is whether a cause of action which is assigned pursuant to a Deed of Arrangement made under the Bankruptcy Act 1966 (Cth) dissolves upon the termination of the DoA.

Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323

Some time after a motor accident had occurred and had been cleaned up by authorities, a bicyclist slipped on some oil residue on the road.  The cyclist sought leave to bring a claim out of time against the third party insurer of the person who caused the motor accident. The case considers whether there is a temporal requirement that would prevent the injury coming within the scope of the Motor Accidents Compensation Act 1999 (NSW).

This was a relatively straight forward application for leave to initiate proceedings out of time pursuant to the Act, which turned into a 5 Judge full bench exploring the state of the doctrine of precedent in Australia. The reason for all the confusion was that there was inconsistency between “seriously considered dicta” of the High Court in the case of Allianz (in relation to a similar provision in the Act) on the one hand, and a NSW Court of Appeal decision (as well as the Court’s own belief in the desirable approach) on the other.

Friday, March 12, 2010

Leave given in Spencer

Round three of the High Court's compulsory acquisition cases has been given special leave today. Peter Spencer (of hunger strike fame) brought the appeal before the Court around the same time as Arnold v Minister and ICM Agriculture v Cth were being considered. The Court postponed the hearing of the leave application until those decisions had been determined.  Back in 2009 French CJ said:
On the basis of the case as pleaded and the submissions put to us today, the Court is not disposed to grant special leave. However, it may be that in light of the outcome of the appeal in Arnold the position can be revisited. We propose, therefore, to adjourn the application for special leave until after Arnold is heard and determined.
So now we get to hear more of what the Court has to say on compulsory acquisition.

The March special leave round up will be posted soon but in the mean time if anyone knows of any grants of leave, let me know.

Wednesday, March 10, 2010

New HCA Judgments

Two new decisions were handed down today. Again, they are both brief and unanimous. We'll have the summaries up soon but for now:

European Bank Limited v Robb Evans of Robb Evans & Associates [2010] HCA 6

This Case allows an appeal from the NSW Court of Appeal. It relates to the damages that are recoverable pursuant to an undertaking as to damages. Particularly, the Court considers the relevance of contractual principles of remoteness, for example under Hadley v Baxendale.

[UPDATE 01/4/10: A lamp post summary of the case can now be found here.]

Muslimin v The Queen [2010] HCA 7

This Case allows an appeal from the NT Court of Criminal Appeal. The Case considers the interpretation of the Fisheries Management Act 1991 (Cth). Particularly, whether an offence of having a foreign boat equipped for fishing extends to conduct outside the Australian Fishing Zone by virtue of a deeming provision in that Act.

[UPDATE 22/3/10: A lamp post summary of the case can now be found here.]

Friday, March 5, 2010

AWB v ASIC settled

AWB Ltd v Australian Securities & Investments Commission, which was set to be argued this month, has settled. Don't get too excited, its only the disclosure argument which is periferal to the principal litigation agianst the AWB directors. The grant of special leave can be found at [2009] HCATrans 331. There were a few interesting issues regarding privilege and the ability for an appellate court to decide an appeal on grounds which were not the subject of argument. Those matters will have to wait for another day.

Derryn Hinch - High Court challenge

It looks like Derryn Hinch is going to challenge his contempt charges in the High Court next month. This isn't the first time he's tried to challenge a contempt charge in the High Court. Ordinarily I wouldn't bother mentioning a challenge like this but his barrister is former Commonwealth Solicitor General David Bennett QC, who's flare in the court room was much admired when he was SG. His involvement suggests to me 1) that the challenge may have legs and 2) that, in any event, the argument could be entertaining.

Although, last time he was in the HCA his well known temper seemed to get the better of him. The transcript obviously obscures the enthusiasm of Bennett's submissions but:
McGovern v Ku-Ring-Gai Council [2009] HCATrans 48

MR BENNETT QC: ... we say well clearly they are because if one looks at page 159, one of the requirements is the development - - -

GUMMOW J: Now, Mr Bennett, the sound system [in the Court] is quite sophisticated. We are not in the middle of a paddock.

MR BENNETT: No. Well, your Honour, I submit it is an important issue for development applications - - -

GUMMOW J: If you just moderate your voice, we will all receive the wisdom more readily.

MR BENNETT: I am sorry, your Honour, I had the - - -

Wednesday, March 3, 2010

New HCA Judgments

Two new decisions were handed down today. Both are continuing with the French J Court’s welcome practice of unanimity. We'll have the summaries up soon but for now:

MRR v GR [2010] HCA 4
This appeal was allowed back in 2009. The Court gave orders allowing the appeal but reserved its reasons for making the orders that it did. The case deals with Parenting Orders under s 60CA of the Family Law Act 1975 (Cth), and specifically considers the criterion that equal shared parenting must be “reasonably practicable”.

[UPDATE 23/3/10: A lamp post summary of the case can now be found here.]

Amaca Pty Ltd v Ellis; The State of South Australia v Ellis; Millennium Inorganic Chemicals Ltd v Ellis [2010] HCA 5
This is the first of two asbestos related cases that have received special leave in the last year. This one involves a person who died of lung cancer after having been exposed to asbestos. Unfortunately, he was also a pretty heavy smoker. The Court found that causation had not been made out at trial. The mere fact that asbestos may have been a cause of the cancer did not show that it was, or probably was, a cause of the cancer. There is some interesting discussion on the intersection of probability and causation.

[UPDATE 3/5/10: A lamp post summary of the case can now be found here.]

Monday, March 1, 2010

More FCA news: iiNet appeal and Phone Directories

Roadshow v iiNet [2010] FCA 24

As was predicted, the iiNet decision has been appealed by the AFACT posse of copyright holders that tried to nab ISPs for authorising copyright infringement by failing to prevent their users from downloading copyrighted works. I have been enjoying nic.suzor's commentary on the decision (see eg), and now Peter Black's Freedom to Differ has the Notice of Appeal, which is unsurprisingly comprehensive in its allegations of errors by Cowdroy J. Despite the suggestion of one commenter on Black's post, I am still willing to go out on a limb and say that the High Court will definitely pick this up regardless of how thoughtful and circumspect the Full Court reasons are.

Telstra v Phone Directories Co [2010] FCA 44

While I am off topic and on to the Federal Court... Most people would by now have heard of the decision of Telstra v Phone Directories Co. The case considered the degree to which copyright may subsist in a compilation (in this case, the names and numbers in the Yellow and White Pages). Importantly, the case further undermined the application and relevance of the Full Federal Court's decision in Desktop Marketing v Telstra (which found copyright to subsist in certain White and Yellow Pages editions), since the High Court's decision last year in IceTV. It now appears that Copyright does not subsist in the White and Yellow Pages' compilation of a phone number and name data set. There's a good case note of the decision at Octavianet.
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