(Other than Applications for Special Leave to Appeal)
HOBART CIRCUIT SITTINGS
COMMENCING 2 APRIL 2001
AUSTRALIAN BROADCASTING CORPORATION v. LENAH GAME MEATS PTY LTD (H2/2000)
Court Appealed from: Full Court, Supreme Court of Tasmania
Date of Judgment: 2 November 1999
Date special leave granted: 12 May 2000
The respondent carries on business as a processor of animals (brush tailed possums) and is licensed as an export abattoir. An unknown person trespassed on its premises and installed cameras which recorded the animal processing operation. This videotape was then given to Animal Liberation Limited, an animal welfare group, which passed it on to the appellant ("the ABC"). The ABC proposed to publish some of the footage as part of a program concerning the respondent's activities. The respondent commenced proceedings against Animal Liberation Limited and the ABC claiming, inter alia, an interim injunction against the ABC and damages.
The application for an interim injunction was argued on two bases; that there was no cause of action necessary as a basis of the relief sought or alternatively there was a cause of action for defamation. Underwood J dismissed the application on both grounds. He was of the view that if there was no cause of action no interlocutory action could lie, and if there was a cause of action in defamation, the principles upon which interlocutory relief is only sparingly granted in defamation weighed against the granting of any injunction and that there was no evidence that damages would not provide an adequate remedy. The ABC subsequently televised a part of the tape in May 1999.
The respondent appealed. The Full Court, by majority, allowed the appeal. Before the Full Court, the respondent conceded that it had no maintainable action for defamation or breach of confidence, but argued that it would be unconscionable for the ABC to broadcast pictures obtained by a trespass notwithstanding that the ABC had no part or involvement in the unlawful conduct. Wright J considered that profiting from the fruits of the trespass by a third party was sufficient grounds for injunctive relief. In the alternative, if a cause of action were required Wright J considered that arguably the ABC could be held liable in negligence. Evans J concurred, on the basis that where there was unconscionable conduct the Court's exclusive equitable jurisdiction could be invoked. He considered that, as unconscionability was central to the Court's jurisdiction to protect confidential information, so it was in relation to the product of a trespass. Slicer J dissented, concluding that without a breach of the law by the ABC, the Court had no power to grant interlocutory relief on the basis of potential injury which the respondent might suffer upon publication.
The grounds of appeal include:
- The Full Court wrongly proceeded on the basis that the Court had jurisdiction to grant an injunction to restrain media publication based on unconscionability in the absence of claims in trespass or defamation or breach of confidence against the appellant; and
- The Full Court failed to have regard to whether, when applying the equitable principle of unconscionability to the media, concepts of public interest in freedom of the press need to be applied in deciding whether or not to grant the injunction.
The appellant has served a Notice of a Constitutional Matter and the Commonwealth and the State of South Australia will be intervening.
The respondent has filed a Notice of Motion seeking leave to file a Notice of Contention out of time.
THE ROY MORGAN RESEARCH CENTRE PTY LTD v. COMMISSIONER OF STATE REVENUE (M108/2000)
Court appealed from: Court of Appeal, Victoria
Date of judgment: 4 February 2000
Date special leave granted: 8 September 2000
The respondent issued 3 notices of assessment under the Payroll Tax Act 1971 (Vic) to the appellant. An objection to the first assessment was disallowed by the Administrative Appeals Tribunal and appeals from that decision were dismissed. Objections to the second and third assessments were disallowed by the Victorian Civil and Administrative Tribunal ("VCAT") in respect of primary tax assessed and allowed only in relation to additional tax. VCAT was not constituted by the President or a Vice president, with or without others.
The appellant sought leave to appeal to the Supreme Court from the VCAT decision. The application was heard by Balmford J, who refused to grant leave, without giving reasons for the refusal. The appellant filed a notice of appeal. The respondent applied to have the appeal dismissed as an abuse of process of the Court. In Rabel v. Eastern Energy Ltd [1999] VSCA 103, the Court of Appeal had previously decided that it had no jurisdiction to entertain an appeal from an order made by the Trial Division of the Supreme Court refusing or granting leave to appeal from an order by a non-presidential VCAT. This was considered to be as a consequence of s148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Section 148 expressly provides, within the meaning of s17(2) of the Supreme Court Act 1986 (Vic), that there is no appeal to the Court of Appeal from such a determination. The appellant accepted that if Rabel were followed the appeal was doomed. But the appellant sought that the Court of Appeal reconsider Rabel and not follow it. The Court of Appeal (Buchanan and Chernov JJA) was of the view that there was no real prospect of such a review being undertaken successfully and dismissed the appellant's appeal.
The grounds of appeal include:
- The Court of Appeal erred in law in dismissing the appellant's appeal from the decision of Balmford J refusing it leave to appeal against the orders of the Victorian Civil and Administrative Tribunal whereby the Tribunal had confirmed assessments levied against the appellant;
- The Court of Appeal erred in law in holding that it had no jurisdiction to entertain the said appeal;
- The Court of Appeal erred in law in holding that its earlier decision in Rabel v. Eastern Energy Ltd [1999] VSCA 103 was correctly decided and should be applied; and
- The Court of Appeal erred in law in holding that s148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) constituted an exclusion of the kind contemplated by s17(2) of the Supreme Court Act 1986 (Vic).
G & M ALDRIDGE PTY LTD v. WALSH (M104/2000)
ELECRAFT (AUST) PTY LTD v. WALSH (M105/2000)
K & V PLUMBERS PTY LTD v. WALSH (M106/2000)
BARDEN-STEELDECK INDUSTRIES PTY LTD v. WALSH (M107/2000)
Court appealed from: Court of Appeal, Victoria
Date of judgment: 12 November 1999
Date special leave granted: 8 September 2000
In December 1988 Thompson Land Limited ("TLL") entered into an agreement with trade contractors (including each of the appellants) to perform work on the Capital Centre project in Dandenong. In December 1989 work was completed to practical completion. Final claims were submitted but not paid. On 9 March 1990 the ANZ Bank ("the Bank") made demand on TLL under a Mortgage Debenture TLL had executed in favour of the Bank in 1988. The charge thereby crystallised automatically and became a fixed charge.
As a result of demands by solicitors representing all the present appellants and others, on 15 March 1990, TLL agreed to pay part of the amount owing to each of 12 contractors, including each of the appellants. Payment by way of a deposit, (secured by units in the M & T Property Fund) was made on that date and the balance was to be paid on 20 April 1990. The balance was not paid. Each appellant sold the units held as security on 20 April 1990 and received payment in respect thereof. The deposits paid to each appellant were of differing amounts, as were the number of units allocated and subsequently sold. There was still a substantial balance owing to each appellant. On 27 April 1990 a receiver and manager was appointed by the Bank pursuant to the charge, an application for winding up of TLL was commenced and TLL was wound up on 6 September with the respondent being appointed liquidator.
In proceedings brought by the liquidator in the County Court, it was held that the payments made on 15 March 1990 (and the security provided) constituted a preference pursuant to the relevant legislation. Each appellant appealed. They contended that they received no "preference priority or advantage over other creditors" within the meaning of s122 of the Bankruptcy Act 1966 (Cth). They submitted that, because by 15 March 1990 the property which was applied in making the payments (and the giving of the security) was already the subject of a fixed charge in favour of the Bank, the only one who could have been disadvantaged by the making of the payments was the Bank (a secured creditor) and not other unsecured creditors. The Court of Appeal heard the appeals together and dismissed them.
The grounds of appeal include:
- The Court of Appeal ought to have held that:
(a) the existence of the charge over the assets and undertaking of TLL was sufficient to preclude any preference, priority or advantage over other creditors; and
(b) if the Appellant did obtain any preference, priority or advantage it was only to the disadvantage of the Bank.
- The Court of Appeal erred in concluding that the failure or inaction on the part of the Bank to take any steps to enforce the charge which became fixed on 9 March 1990 had the effect of making the payment made and security provided on 15 March 1990 a preference
VICTORIAN WORKCOVER AUTHORITY & ANOR v. ESSO AUSTRALIA LIMITED (M101/00)
Court appealed from: Court of Appeal, Victoria
Date of judgment: 19 April 2000
Date special leave granted: 8 September 2000
In 1989 the respondent (Esso) was the occupier of an Oil Platform in Bass Strait. AFCO Industrial Services Group Pty Ltd (now in liquidation) contracted with Esso to provide, among other services, AFCO employees to work on the Platform. One of AFCO's employees (Wsol) was injured while on the platform in January 1989. The back injury which he suffered deteriorated over time and he has not worked since September 1989. Each of the appellants has at various times and pursuant to the Accident Compensation Act 1985 (Vic) ("the Act") had the obligation of making compensation payments to Wsol.
The appellants began these proceedings against Esso seeking an indemnity in respect of the payments made by them to the worker and also a declaration in relation to future payments. The appellants' right to the indemnity is statutory and arises pursuant to s138 of the Act. The trial judge made a finding of negligence against Esso and apportioned responsibility for Wsol's injuries as to 80% against Esso and as to 20% against AFCO. In respect of the compensation paid by the appellants up to the time of judgment, the trial judge ordered Esso to pay the first appellant (VWA) $116,226.22, plus interest fixed at $7,206.66 and ordered that Esso pay to the second appellant (FAI Insurance) $219,000, plus interest fixed at $80,600.22.
In the Court of Appeal, Esso challenged the trial judge's award of interest. The Court upheld this challenge, holding that a person seeking to enforce an entitlement to an indemnity conferred by s138 of the Act is not bringing proceedings to recover "debt or damages" within the meaning of s60 of the Supreme Court Act 1986 (Vic).
The grounds of appeal include:
- The Court of Appeal erred:
(a) in its construction of s60 of the Supreme Court Act 1986 (Vic); and
(b) in holding that proceedings for recovery of amounts pursuant to s138 of the Accident Compensation Act 1985 (Vic) were not proceedings for the recovery of debt or damages within the meaning of s60 of the Supreme Court Act 1986 (Vic).