(Other than Applications for Special Leave to Appeal)
COMMENCING 7 AUGUST 2001
McGARRY v. THE QUEEN (P61/2000)
Court Appealed from: Court of Criminal Appeal of the Supreme Court of Western Australia
Date of Judgment: 6 December 1999
Date special leave granted: 4 August 2000.
The appellant pleaded guilty on 30 October 1998 to one count of indecent dealing of a child under the age of 13 years, contrary to s320(4) of the Criminal Code 1913 (WA).
The charges arose out of the following events: On 18 December 1997, the appellant noticed the complainant's photograph in a local newspaper. He used the telephone directory to locate her home address, attended at that address, attracted the complainant's attention by tapping on the window and performed an indecent act. On three subsequent occasions the appellant telephoned the complainant's residence stating that he was a "Sergeant Phillips" of the Fremantle Police Station and that he wished to discuss the incident.
In sentencing, three pending charges of personating a member of the police force were taken into account pursuant to s32 of the Sentencing Act 1995.
The sentencing Judge found that the offence was at the level of 7 years' imprisonment to which a credit of 2 years was allowed because of a "fast track" plea. The sentencing Judge found that there was no eligibility for parole. He also found that the appellant had a constant history of sex offending against younger females and that previous detention for similar offences had not dissuaded the appellant. He came to a conclusion that pursuant to s98 of the Sentencing Act 1995 (WA), the appellant would be a danger to a part of society and that there was a clear risk that he would commit other indictable offences. As such, the sentencing Judge made a declaration of indefinite imprisonment.
On appeal to the Court of Criminal Appeal, the Court unanimously allowed his appeal with respect to the length of sentence, reducing it from 5 years to 3 years. That part of the appeal relating to parole eligibility was unanimously dismissed. With respect to the imposition of an indefinite sentence, a majority of 2:1 found that the trial Judge had properly used his discretion in imposing an indefinite sentence. Section 98(2) of the Sentencing Act 1995, states that indefinite imprisonment must not be ordered unless the Court is satisfied, on the balance of probabilities, that when the offender would otherwise be released from custody in respect of a nominal sentence, he or she would be a danger to society or part of it. The subsection enumerates 4 factors upon which the sentencing Judge can make an order of indefinite imprisonment including the exceptional seriousness of the offence, the risk that the offender will commit other indictable offences, the character of the offender and any other exceptional circumstances. The majority of the Court of Appeal noted that the trial Judge had referred to the exceptional seriousness of the offence, the risk of recidivism, the predatory nature of the offences and the history of offending of this type.
Since the grant of special leave to appeal, the appellant has filed a notice of a constitutional matter and a notice of motion seeking leave to amend the notice of appeal. The constitutional issue said to arise is:
- Whether s98 of the Sentencing Act 1995 (WA) and s25 of the Sentence Administration Act 1995 (WA) are invalid because the power invested in the Supreme Court of Western Australia and the District Court of Western Australia under those provisions are:
(a) repugnant to or incompatible with the exercise of federal judicial power of the Commonwealth and with the role and function of the Supreme Court and the District Court;
(b) have the tendency to undermine public confidence in the integrity, independence and impartiality of the Supreme Court and District Court; and
(c) are in violation of the Chapter 3 of the Commonwealth Constitution.
The ground of appeal is:
- Whether the learned sentencing Judge erred in law in failing to satisfy himself that the appellant would be a danger to society or part of it at the time the appellant would be released from custody in that he failed to give express consideration to all the relevant factors specified in s98(2) of the Sentencing Act 1995 (WA).
REGIE NATIONAL DES USINES RENAULT SA & ANOR v. ZHANG (S9/2001)
Court appealed from: New South Wales Court of Appeal
Date of Judgment: 27 July 2000
Date of grant of special leave: 15 December 2000
The respondent came to Australia from China in 1986. He was advised that he would be granted permanent residency in Australia if he left the country to make application for such residency from outside Australia. He travelled to New Caledonia for this purpose. While in Noumea he hired a Renault motor vehicle from a car rental company. He suffered serious injuries when he lost control of the car. He brought an action framed in product liability in the Supreme Court of New South Wales against the appellants. The appellants (who have no presence in New South Wales or Australia) sought a stay of the proceedings.
The issue before the primary judge was whether the Supreme Court of New South Wales was an appropriate forum to try the respondent's action. The primary judge found that the practical considerations tended to favour New South Wales, but that the case had a close connection with France and New Caledonia. "The substantive law to be applied is French law. On any reasonable view the tort alleged, whether negligent design or negligent manufacture, is French." His Honour exercised his discretion and granted a stay on conditions.
The respondent sought leave to appeal, relying on nine grounds of appeal.
The Court of Appeal found that the discretion miscarried and it was appropriate to re-exercise it. "[The primary judge] should have held that the opponents had not discharged the onus of showing that New South Wales was a clearly inappropriate forum and refused the stay." Leave to appeal was granted and the appeal allowed with costs.
The respondent has filed a notice of contention raising multiple grounds. The primary submission of the respondent relates to the failure of the appellants to discharge before the primary judge either the positive or the negative aspect of the onus they bore under the Australian test to show that New South Wales is a clearly inappropriate forum.
The grounds of appeal are:
- The Court of Appeal erred in finding that the trial judge erred in holding that French law would govern the respondent's claim were the matter to be litigated in New South Wales, and then proceeding to re-exercise the discretion which had been exercised by the trial judge in the appellants' favour and in favour of a stay of proceedings.
- The Court of Appeal erred in finding that the trial judge's holding that French law would govern the respondent's claim was premature in circumstances where it was accepted (and the Court of Appeal held) that any tortious conduct occurred in France.
- The Court of Appeal erred in holding that arguably New South Wales law would govern the respondent's claim.
- The Court of Appeal erred in interfering with the trial judge's careful exercise of discretion on the basis of its finding (which itself constituted an error of law) that the trial judge erred in holding that French law would govern the respondent's claim.
GERLACH v. CLIFTON BRICKS PTY LIMITED (S43/2001)
Court appealed from: New South Wales Court of Appeal
Date of Judgment: 28 April 2000
Date of grant of special leave: 16 February 2001
The appellant commenced proceedings in the Supreme Court in July 1989, seeking damages against the respondent for injuries for an industrial accident. Years later the proceedings were remitted to the District Court. At the appropriate stage, while the action was pending in the Supreme Court, the appellant had requisitioned for trial by jury. It was accepted that this requisition remained effective after the transfer of the proceedings to the District Court so as to require the action to be tried with a jury unless it was dispensed with.
On the second last working day before the trial the appellant obtained an order to dispense with the jury. The respondent opposed the making of such order. Christie DCJ exercised the discretion conferred by Section 79A of the District Court Act 1973 which provides: "In any action the court may order, despite sections 77, 78 and 79, that all or any questions of fact be tried without a jury". In the exercise of his discretion, Christie DCJ considered the number of witnesses who would have to be called from different parts of the country and said that the appellant would be put to significant financial burden in calling an expert witness in addition to providing accommodation for the lay witnesses while they waited to be called before the jury.
The hearing of the appellant's case proceeded before Morrison ADCJ. The appellant was awarded $390,000 damages.
The respondent appealed, challenging not only the trial judge's decision on liability and damages, but also challenging the interlocutory order of Christie DCJ.
The Court of Appeal held that the respondent could challenge the interlocutory order to dispense with the jury on an appeal against the final judgment. The Court held that the cost of witnesses was not a relevant consideration in the exercise of the judge's discretion and therefore that the order to dispense with the jury should not have been made. The Court further held that the respondent was entitled to a retrial.
The appellant has filed a notice of motion seeking leave to amend the grounds of appeal.
The proposed amended grounds of appeal include:
- The Court of Appeal was wrong in setting aside the decision of the District Court under s79A of the District Court Act 1973 to dispense with the jury previously requisitioned in the proceedings;
- The Court of Appeal erred in applying a restriction upon the discretion vested in the District Court by s79A as propounded by the Court of Appeal in Pambula Public Hospital v. Herriman (1988) 14 NSWLR 387 and applied in subsequent decisions;
- The Court of Appeal ought not to have followed its earlier decision in Pambula, it being wrongly decided, and the discretion of s79A being general and unfettered; and
- The Court of Appeal failed to apply the decision and reasoning of the High Court in Patton v. Buchanan Borehole Collieries Pty Limited (1993) 178 CLR 14 in relation to the discretion conferred by s79A.
* * * * * * *
Full Court Matters
(Other than Applications for Special Leave to Appeal)
ADELAIDE CIRCUIT SITTINGS
COMMENCING MONDAY, 13 AUGUST 2001
RE SWINBANK & ORS; EX PARTE ELDERS LIMITED & ORS ( A23/2000)
Date of order directing application be made by notice of motion: 28 November 2000
The applicants seek prerogative relief in respect of the same decision of the Full Federal Court which is the subject of the appeal contained in A43/00. The appellants seek certiorari to quash the decision of the Full Court. They also seek mandamus directed to the Full Court directing them to consider and determine the matters that were before them on the grounds that the Full Court did have jurisdiction to hear the appeal and to decide the matters.
The grounds of the application for prerogative relief and the appellants' arguments are the same as those in their appeal. The appellants submit that if the appeal succeeds there is no need for this Court to grant prerogative relief.
On 10 August 2000, a single Justice had directed that the application for prerogative relief be made to the same Full Court hearing the special leave application. On 28 November 2000 the Court directed that the application be made by way of Notice of Motion.
The judges of the Federal Court named as respondents to the prerogative relief application submit to the jurisdiction of the Court. The other respondents, who are the respondents to the appeal, do not intend to make any submissions except on the questions of costs.
ELDERS LIMITED & ORS v. SWINBANK & ORS (A43/2000)
Court appealed from: Full Federal Court of Australia
Date of judgment: 4 February 2000
Date special leave granted: 28 November 2000
The appellants paid for, and received, professional indemnity insurance cover from the respondents by way of an insurance policy (the "PI policy"). As a consequence of proceedings in the Supreme Court of the Northern Territory, the appellants incurred liability under a Deed of Settlement as well as certain other costs in respect of which they contend they are entitled to be indemnified under the PI policy. Despite demand being made, the respondents have refused to provide the indemnity sought by the appellants under the policy.
In 1997 the appellants commenced proceedings in the Federal Court, in reliance upon the Jurisdiction of Courts (Cross-Vesting) Act 1987 (SA), to enforce the PI policy. Orders were made by consent in 1998 by Mansfield J for the separate determination of certain issues. On 16 June 1999 Mansfield J delivered judgment on those issues. On 17 June 1999 the High Court delivered its decision in Re Wakim (1999) 73 ALJR 839. The respondents sought leave to appeal against the judgment of Mansfield J and to raise the question of jurisdiction. The appellants sought leave to amend their claim to plead explicitly damages for breach of late payment of sound claim and reliance on s57 of the Insurance Contracts Act 1984 (Cth) (the "ICA") (for interest payable for late payment of sound claim). The Full Federal Court heard argument on the jurisdictional issue and the amendment issue at the same time. The appellants submitted that even without the amendment sought to the statement of claim, their entitlement to interest under the ICA was raised as an issue in the action from the outset, in a way sufficient to require the Court to make a determination on it, quite apart from the cross-vesting legislation. Because the claim to interest arises under a law of the Parliament, it thus is within the Court's original jurisdiction under s39B(1A)(c) of the Judiciary Act 1903 (Cth). The appellants contended that it is not necessary to make explicit reference in the pleadings to the statutory source of law and that it is sufficient if the material facts are pleaded on proof of which the statutory (federal) liability is established. Alternatively it was submitted that the Court would have had jurisdiction had the appellants been given the opportunity to amend the Statement of Claim as contemplated. The Full Court determined that the proceedings should be stayed because the Full Court had no jurisdiction, following the decision in Re Wakim. On that ground also the application to amend the Statement of Claim was refused.
The grounds of appeal include:
- The Court below erred in not considering that s57 Insurance Contracts Act 1984 (Cth) (the ICA) is the sole remedy for late payment of a sound insurance claim, to the exclusion of –
(a) Section 30C Supreme Court Act 1935 (SA) and equivalent statutory provisions for pre-judgment interest in other States; and
(b) common law damages for breach of contract, including but not limited to, damages in accordance with the principle in Hungerfords v Walker (1990) 171 CLR 125.
- The Court below erred in not considering that there is a "matter arising under a law of the Parliament" sufficient to attract the jurisdiction of the Federal Court where from the commencement of a proceeding in the Federal Court, or subsequently, facts are pleaded which, if proved, would entitle the applicant to relief as follows:
(a) to a remedy (statutory interest) provided by a law of the Parliament (s57 ICA), although no explicit reference is made in the pleading to that statutory remedy;
(b) by reason of a legislative amendment coming into effect after the commencement of the proceedings, to an exclusive federal statutory remedy, although no explicit reference is made in the pleading to that exclusive statutory remedy;
(c) as in (a) and (b) above respectively, but in each case an application is made subsequently to amend the pleadings by adding an explicit reference to the federal statutory remedy; and
(d) to the statutory protection afforded by s41 ICA in circumstances where explicit reference is made in the pleadings to that statutory provision and its operation put in issue by a denial contained in the respondents' pleaded Defence.
The respondents' submissions in the appeal are confined to questions of costs.
The Commonwealth, South Australia and Western Australia will be intervening.
The appellants have also made application for prerogative relief in respect of the decision of the Full Court, in matter A23 of 2000. The grounds for prerogative relief are the same as those in the appeal.
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v. SINGH (A11/2001)
Court appealed from: Full Federal Court of Australia
Date of judgment: 15 August 2000
Date special leave granted: 16 February 2001
The respondent (Singh) is an Indian citizen of Sikh ethnicity. After his family was killed by a Hindu mob in 1984, Singh joined the Khalistan Liberation Force (the "KLF"). He remained an active member until he left India for Australia in 1996. He knowingly participated in the unlawful killing of a police officer and other acts of violence. He did so by providing information to other members of the KLF and also in some cases providing weapons. Singh's application for a protection visa was refused on the grounds that he had committed crimes against peace. The Refugee Review Tribunal (the "RRT") held that his participation in the murder of the police officer was a non-political crime on the basis that there could be no nexus or proportionality or close or direct link between the revenge murder of the particular police officer and the alleged political objectives of the KLF. The RRT also held that Singh's involvement in the other violent crimes constituted an involvement in non?political crimes.
Mansfield J dismissed an application for review. His Honour held that the RRT had erred in finding that a crime motivated by revenge was necessarily incapable of being a political crime. However he did not consider that the RRT had erred in the way it dealt with the other crimes committed by Singh and therefore did not uphold the challenge. Singh appealed to the Full Court.
The Full Court upheld Singh's contention that the RRT was required to make a finding, on the material before it, as to the nature of the crimes in which the weapons were likely to have been used. The Court said that without such a finding, it was not possible to determine whether they were political or non-political crimes. On the appellant's "cross-appeal", the Full Court accepted that there were crimes that of their nature were incapable of being characterised as political crimes. However the Full Court considered that there may be circumstances in which murdering a particular police officer for revenge could be characterised as a political crime. The Court held that the RRT ought to have considered whether the crime occurred in the midst of a political struggle and then determined whether, notwithstanding such a struggle, the crime cannot be characterised as political.
The grounds of appeal include:
- The Full Court erred in holding that the Tribunal was required to look at the circumstances of the crime so as to determine whether it is an incident of a political struggle before considering whether there are other characteristics of the crime which make it a "non-political crime" within Article 1F of the Refugee Convention and Protocol, notwithstanding the existence of any political struggle. The Full Court should have held that it is not an error of law for the Tribunal to find that a particular crime is so atrocious that it can bear no sufficient proportionality to political objectives for it to be capable of characterisation as a "political crime" irrespective of the existence of a political struggle.
SULLIVAN v. MOODY & ORS (A21/2001)
Court appealed from: Full Court Supreme Court of SA
Date of judgment: 17 October 2000
Date special leave granted: 1 June 2001
The appellant sued the respondents in negligence. His case was that there had been an allegation that he had sexually abused one of his children; that the child was questioned and examined by a medical practitioner who investigated the allegation and formed the opinion that the appellant had sexually abused his child; that this opinion was negligently reached; that two social workers were also involved in that investigation and they also formed the same opinion; that the social workers had done so negligently. These opinions were then communicated to officers of the Department for Community Welfare (the "Department"), the police and to other respondents; that officers of the Department were negligent in dealing with the investigation and in their response to the allegations; that as a result the appellant was separated from his child and suffered shock, anguish and distress. The respondents are the doctor, the social workers and the officers of the Department; the two hospitals alleged to be the employers of some of the individual respondents; and the State of South Australia as the employer of some respondents and the entity liable for the negligence of the officers of the Department.
Upon the application of the respondents, a Master had struck out the statement of claim as not disclosing a cause of action. Before the Master, the appellant conceded that the decision of the Full Court of the Supreme Court of South Australia in Hillman v. Black governed his case and could not be distinguished. After the Master had made his decision, the Full Court in CLT v. Connon & Ors considered a challenge to the correctness of Hillman v. Black. That Full Court (Doyle CJ, Duggan & Gray JJ) held that causes of action, indistinguishable from those advanced in Hillman v. Black could not succeed as a matter of law. When this matter came before the Full Court, the appellant conceded that there was no material distinction between the case as pleaded by the appellant and the case pleaded in CLT v. Connon & Ors. The Full Court (Doyle CJ, Williams & Wicks JJ) dismissed the appellant's appeal.
The ground of appeal is:
- That the Full Court of the Supreme Court of South Australia erred in deciding that it was not arguable that the Statement of Claim filed in the Supreme Court of South Australia by the appellant disclosed a cause of action and that it was capable of being amended to show a cause of action against the respondents to this appeal.
The matter of CLT v. Connon & Ors had been granted special leave to appeal. In the High Court that appeal is known as Thompson v. Connon & Ors. The ground of appeal in this appeal is the same as that raised in Thompson v. Connon & Ors (A23/2001).
THOMPSON v. CONNON & ORS (A23/2001)
Court appealed from: Full Court, Supreme Court of SA
Date of judgment: 6 July 2000
Date special leave granted: 1 June 2001
The appellant had been charged with criminal offences alleging sexual abuse of his three children. The charges followed medical examinations of the children and subsequent reports to the Department of Community Welfare (the "Department") concerning alleged sexual abuse by the appellant. In time all charges were either discontinued or the subject of nolle prosequi. It is asserted that as a result the appellant's relationship with his children has been significantly impaired, if not ruined.
He sued, claiming damages alleging a breach of common law duty of care. The respondents are the two medical practitioners who examined the children and made a report to the Department; the Hospital which provided the Sexual Assault Referral Centre where the children were examined; and the State of South Australia whose Department had responsibility regarding the welfare of allegedly abused children.
The respondents applied to strike out the statement of claim as disclosing no cause of action. In the appellant's path stood the decision of the Full Court of the Supreme Court of South Australia in Hillman v. Black. The facts in Hillman v. Black were similar to the present case. The Full Court in Hillman v. Black had found that there was no duty of care. The Master concluded that he was bound by the decision in Hillman v. Black and struck out the action. The appellant appealed to the Full Court, arguing that a number of recent High Court judgments on the issue of proximity should lead to a reconsideration by the South Australian Full Court of the decision in Hillman v. Black. The Full Court (Doyle CJ, Duggan & Gray JJ) agreed that it should reconsider Hillman v. Black and the issue of whether there was a duty of care. Although the reasoning of Doyle CJ differed from that of Duggan & Gray JJ they all concluded that there was no duty of care and dismissed the appeal.
The ground of appeal is:
- That the Full Court of the Supreme Court of South Australia erred in holding that it was not arguable that the Statement of Claim disclosed a cause of action against the respondents.
The ground of appeal in this matter is the same as that raised in Sullivan v. Moody & Ors (A21/2001).
ERMOGENOUS v. GREEK ORTHODOX COMMUNITY OF SA INC. (A22/2001)
Court appealed from: Full Court Supreme Court of SA
Date of judgment: 5 October 2000
Date special leave granted: 1 June 2001
In late 1969 and in early 1970 the respondent and other communities invited the appellant to visit Australia from America for discussions relating to his possible appointment as archbishop. The appellant arrived in Adelaide and had some discussions with the respondent. In April 1970 a meeting of the Federation of Greek Orthodox Communities in Australia took place in Melbourne and following that meeting the appellant was formally installed as an Archbishop of the Autocephalous Church in Adelaide.
He remained as Archbishop until December 1993. He then brought proceedings in the Industrial Relations Court of SA against the respondent. His claim was for a pro rata payment in lieu of accumulated annual leave and also for a pro rata payment for accumulated long service leave . The principal issue before the Industrial Magistrate, and on the appeals which followed, was whether the appellant was an employee of the respondent at common law. The Industrial Magistrate who heard the claim held that he was. A single judge of the Industrial Relations Court dismissed an appeal from that decision. The Full Court of the Industrial Relations Court dismissed an appeal from the single judge.
The respondent then appealed to the Full Court of the Supreme Court of South Australia. There was a preliminary issue of whether the respondent had an appeal as of right, or required leave. Bleby J was of the view that there was an appeal as of right, but in any event would have granted leave if that were necessary. Doyle CJ and Mullighan J were of the view that it was an appropriate case in which to grant leave. After reviewing all the evidence which was before the Industrial Magistrate, the majority (Doyle CJ and Bleby J) found that on the evidence it was not the intention of the parties to enter into legal relations. The majority was of the view that in the case of a minister of religion an intention to enter into contractual relations in respect of an alleged contract of employment cannot be presumed but has to be proved. The appeal was allowed.
The grounds of appeal are:
- Whether the Full Court erred in holding that there had in this case been no intention to create legal relations;
- Whether it was open to the Full Court to make the findings of fact it did, or alternatively, whether it erred in making the findings of fact it did:
(a) in an appeal under s191 of the Industrial and Employee Relations Act 1994 (SA); and
(b) to the contrary of findings of fact below.