Full Court Matters - February 2000


(Other than Applications for Special Leave to Appeal)

FEBRUARY 2000


EASTMAN v. THE QUEEN (C5/1997)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 25 June 1997

On 3 November 1995 the applicant was convicted in the Supreme Court of the Australian Capital Territory of the murder, on 10 January 1989, of Colin Stanley Winchester. The trial lasted from 16 May 1995 until 3 November 1995. The applicant was sentenced to life imprisonment, and his appeal to the Federal Court of Australia was dismissed on 25 June 1997.

The deceased was killed by being shot twice in the head whilst alighting from his car. The applicant denied any involvement in the killing. The applicant, before and during his trial, repeatedly dismissed counsel and solicitors from his case and was unable to effectively represent himself. His conduct before the Trial Judge and the jury was offensive, disruptive and turbulent. The applicant contends that this state of affairs was caused by a circumstance beyond his control, namely that he suffered from chronic paranoid schizophrenia.

There is some contention between the applicant and the respondent as to the scope of the applicant's illness. The applicant seeks to introduce new evidence as to his mental capacity, notwithstanding the Court's decision in Mickelberg v. The Queen (1989) 167 CLR 259. The applicant seeks to introduce affidavits from barristers and solicitors who represented him at various times during his previous proceedings and a psychiatrist's report.

The application for special leave to appeal was heard on 12 February 1999 and was referred to the Full Court of the High Court for hearing on 25 March 1999. On 25 March 1999 the Full Court heard argument on whether it should reconsider Mickelberg v. The Queen to permit the admission of new evidence. The Attorneys-General for the Commonwealth and the States of Victoria and Western Australia were granted leave to intervene. The Full Court reserved its decision on that point and stood the matter over.

On 5 October 1999 the Court re-listed the matter for a further hearing on 1 February 2000 to hear argument on the questions whether, on the material that was before the Full Court of the Federal Court of Australia, that court could, and should itself, have made inquiry about and considered the applicant's fitness to plead or stand his trial.

The questions of law said to justify a grant of special leave to appeal include:

  • Whether the Full Court erred in law in failing to hold that the trial miscarried by reason of the actions of the prosecution in withholding evidence that the applicant was insane and/or unfit to plead or give instructions to his legal advisers;
  • Whether the Full Court erred in law in failing to hold that the trial miscarried by reason of the admission of character evidence at trial;
  • Whether the Full Court erred in law in failing to hold that the trial miscarried by reason of the treatment of the applicant at trial; and
  • Whether the Full Court erred in law in failing to hold that the trial miscarried by reason of the applicant being denied sufficient legal aid funding so as to enable him to present new evidence on appeal to the Full Federal Court relating to the unreliability of forensic evidence given at trial by Dr Barnes on behalf of the prosecution.

AUSTRALASIAN MEMORY PTY LIMITED & ANOR v. BRIEN & ANOR (S84/1999)

Court appealed from: Supreme Court of New South Wales, Court of Appeal

Date of judgment: 29 October 1998

Date of grant of special leave: 14 May 1999

The respondents were appointed joint administrators of the appellant on 18 February 1997 pursuant to a resolution of the directors of the appellant under s436A of the Corporations Law ("the Law"). The directors included Mr Amor, the second appellant. The first meeting of creditors under s436E of the Law took place within the requisite five business days on 21 February 1997. A Report as to Affairs presented to the meeting on 21 February disclosed a deficiency of assets over liabilities of approximately $6.4 million. It is not in dispute that the company was at that time insolvent.

The respondents, purporting to act pursuant to s439A of the Law, by notice dated 24 February 1997, convened a second meeting of creditors for 3 March 1997. The meeting purportedly commenced on that day and, after discussion, the creditors resolved that the meeting be adjourned to a date no later than three weeks from that date. By notice dated 18 March 1997, a further meeting of creditors was convened for 24 March 1997 and took place on that day. The creditors then resolved that the company be wound up.

Section 439A(2) of the Law required that the meeting must be held not earlier than the expiration of twenty-one days beginning on the day the administration began (18 February 1997) and ending not later than the expiration of five days thereafter (unless extended by the Court pursuant to s439A(7)). It was common ground that the meeting was convened within the convening period as required by s439(1) but was held prematurely by eight days, having been held on 3 March 1997 (though adjourned to 24 March 1997) rather than the earliest permitted date of 11 March 1997.

Nonetheless, the respondents assumed that at that time, by force of s446A and other provisions of the Law they thereupon became the liquidators of the company. The employment of all the company's employees was immediately terminated and the respondents embarked on the process of realising the assets of the company. They caused the company to serve notices of demand upon two companies alleged to be debtors of the company. The Federal Court set aside the statutory demands on the ground that they were issued without authority, the meeting which purported to lead to the appointment of the liquidators having been convened prematurely.

The judge at first instance exercised his discretion and made remedial orders under s1322(4) and s447A of the Law validating the appointment of the respondents as liquidators of the first appellant. The Court of Appeal, by majority, dismissed the appellants' appeal.

The grounds of appeal are:

  • That the Court of Appeal erred in holding that Section 447A of the Corporations Law ("the Law") upon its proper construction, empowered the Court to make the orders made by the Equity Division of the Supreme Court of New South Wales in these proceedings.
  • That the Court of Appeal erred in holding that Section 1322 of the Law, upon its proper construction, empowered the Court to make the orders made by the Equity Division of the Supreme Court of New South Wales in these proceedings.

 

BOND v. THE QUEEN (P57/1999)

Court appealed from: Court of Criminal Appeal of the Supreme Court of Western Australia

Date of judgment: 22 August 1997

Date special leave granted: 20 October 1999

On 4 December 1996, the applicant pleaded guilty to 2 counts specifying offences under the Companies (Western Australia) Code 1981 (WA). These offences related to the applicant's conduct as a company director.

On 5 February 1997 a sentence, amounting to an aggregate of 4 years' imprisonment to be served cumulatively upon the sentences then being served by the applicant, was imposed. An order for parole eligibility was made.

The Commonwealth Director of Public Prosecutions appealed against the sentences. At the hearing of the appeal, no point was taken by the applicant's senior counsel as to either the competence of the appeal (being brought by the Commonwealth DPP) or the jurisdiction of the Court. On appeal, the Court of Criminal appeal set aside the sentences and substituted longer prison sentences producing an effective sentence of 7 years' imprisonment. An order for eligibility for parole was made.

Subsequently an application for special leave to appeal was filed in the High Court. No point was made regarding the competence of the appeal or the jurisdiction of the Court of Appeal. This application was discontinued on 11 December 1997.

The current application for special leave to appeal was filed following the judgment being delivered by the High Court in Byrnes v. The Queen and Hopwood v. The Queen 164 ALR 520. This case raised the question of the authority of the Commonwealth DPP to prosecute offences against the laws of a State.

The grounds of appeal include:

  • That the Court below did not have jurisdiction to entertain the appeal by reason that the notices of appeal in the court below could not invoke the jurisdiction of that court as they were invalid because:

(a) the appeal was brought by the Director of Public Prosecutions for the Commonwealth; and

(b) The Director of Public Prosecutions for the Commonwealth did not have the power (or authority, right, function or entitlement) to institute, conduct and/or prosecute the appeal to or in the court below;

 

  • That the appeal to the court below was incompetent by reason of the notice of appeal being invalid and thus the Court of Criminal Appeal erred in allowing the appeal and re-sentencing the appellant.

ZONEFF v. THE QUEEN (A23/1999)

Court appealed from: Court of Criminal Appeal, South Australia

Date of judgment: 1 December 1998

Date of grant of special leave: 13 August 1999

The appellant was tried on 7 counts, 4 of which charged him with false pretences and 3 with fraudulent conversion. A jury found him guilty of 6 of the charges. The total amount of money involved was around $73,000.

The prosecution case was that the appellant took advantage of 5 people. These people each met the appellant when they went to purchase furniture from the Le Cornu Furniture Centre where the appellant worked as a salesperson. The prosecution alleged that the appellant ingratiated himself with these people, fostering their friendship to betray their trust by dealing dishonestly with their money. Two of the victims (S and M) said that the appellant persuaded them to pay the amount outstanding on their purchases to him, so that they could have the benefit of bonus points (amounting to a discount of $720) to which he was entitled as part of his employment conditions. The money deposited was used by the appellant to pay his personal debts. Another 2 victims (Mr & Mrs D) purchased furniture for a house they were building. In the course of contact with the appellant, he told them of the substantial discount on their furniture if they paid their money to him, which they agreed to do. In the course of one telephone conversation the appellant proposed that the three of them enter into a business venture together to build 2 units as an investment. An arrangement was made and they took out a loan of some $84,000. Part of this was used to pay off an existing mortgage and the balance was used to write three cheques towards the investment. The appellant used the funds to satisfy his own debts. The fifth victim (P) was also persuaded to make a payment to the appellant in return for a discount of $720 off her furniture purchase.

The appellant's evidence was that he denied any false pretence and that the victims were aware of the personal purposes to which their money was put. He maintained that he had a bona fide belief that he was entitled to deal with the monies in the way in which he did.

The appellant appealed against conviction and sentence. The majority in the Court of Criminal Appeal (Cox J concurring with Prior J) dismissed the appeal against conviction but allowed the appeal against sentence. Olsson J would have allowed the appeal on one of the grounds relating to the trial judge's direction on lies. The High Court granted special leave limited to the ground relating to the trial judge's direction on lies.

The ground of appeal is:

  • The learned Justices Cox and Prior erred by dismissing argument with respect to how the learned trial judge was to sum up to the jury with respect to "lies". The learned trial judge should have given a full direction in accordance with the principles as set out in Edwards v. The Queen (1993) 178 CLR 193.

AUSTRAL PACIFIC GROUP LIMITED v. AIR SERVICES AUSTRALIA (B46/1999)

Court appealed from: Court of Appeal of the Supreme Court of Queensland

Date of judgment: 19 June 1998

Date special leave granted: 24 June 1999

The plaintiff was employed as a fire fighter by the Civil Aviation Authority (CAA), a Commonwealth instrumentality. He was employed at Cairns airport. The plaintiff claimed to have sustained injury when he was alighting from a fire engine, when he stepped on an aluminium step forming part of the vehicle. The step had a rubber tread molding, which came off causing the plaintiff to fall to the ground. The plaintiff did not sue his employer, but instead brought an action against Austral Pacific Group Limited (APGL), the appellant in these proceedings, alleging that it had supplied the appliance to the CAA and was legally responsible for the defective condition of the step.

After the accident, the CAA was abolished by statute, and its assets and liabilities transferred to Air Services Australia (ASA), which is a Commonwealth authority within the meaning of the Safety Rehabilitation and Compensation Act 1988 (Cth). ASA was the third party named in the initial proceedings.

APGL delivered a defence, and a third party notice against ASA claiming indemnity or contribution on the basis of its failure to maintain the steps of the appliance in a safe condition. ASA then applied to strike out the third party notice on the ground that it was not, within the meaning of s6(c) of the Law Reform Act 1995 (Qld), a tortfeasor "who is, or would if sued have been, liable in respect of the same damage" as the defendant APGL. That contention was based upon the provisions of ss44 and 45 of the Safety Rehabilitation and Compensation Act. The rationale was that unless and until an employee elected to sue his employer, the employer was not a tortfeasor "who is, or would if sued have been, liable in respect of the same damage".

In order to sue an employer under the Safety Rehabilitation and Compensation Act an employee must first elect in writing to institute an action. Here the employee had not elected to institute proceedings, although he had not received benefits under the Act as would deprive him from the ability to do so.

The application to strike out the third party notice was dismissed at first instance. On appeal the application was allowed.

The grounds of appeal are:

  • That the Court of Appeal erred in finding that unless and until an employee makes an election in writing to institute an action under s44(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) no claim for contribution may be made by the appellant defendant against the respondent third party under the provisions of s6 of the Law Reform Act 1995 (Qld);
  • That the Court of Appeal erred in finding that it was not competent for the appellant defendant to issue a third party notice against the respondent third party if the plaintiff employee had not yet made an election to sue the respondent third party under s45(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth); and
  • That the Court of Appeal erred in failing to find that the appellant defendant was entitled to issue and maintain third party proceedings against the respondent third party under s6(c) of the Law Reform Act 1995 (Qld) notwithstanding the failure of the employee to elect under s45(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) to sue the respondent third party.

 

ALLESCH v. MAUNZ (C15/1999)

Court appealed from: Full Court of the Family Court of Australia

Date of judgment: 26 November 1998

Date special leave granted: 6 August 1999

In August 1993, the respondent filed an application for property settlement in the Family Court to which the appellant responded. On more than two occasions the matter was fixed for hearing but did not proceed for various reasons. The proceedings involved a number of interlocutory applications.

In April 1995 the appellant commenced acting for himself.

Ultimately, following on from a directions hearing on 19 May 1995, the respondent's application for property settlement proceeded on an undefended basis before Finn J on 14 June 1995. The appellant did not appear on either occasion. He had been notified of both hearings and served with a copy of the orders made at the directions hearing where the matter had been listed for an undefended hearing. Finn J gave her decision on 10 July 1995 and the matter was listed on 10 August 1995 for final orders in relation to property settlements. There was no appearance by the appellant on 10 August 1995.

The appellant contended that he was unable to attend the hearings because of ill health. He was admitted to hospital with a heart condition on 1 May 1995 and discharged on 14 May 1995. On 12 May 1995 he forwarded a letter to the Registrar of the Family Court enclosing a medical certificate. In response he was advised by letter of 18 May 1995 from the Deputy Registrar, that it would be necessary for him to appear or instruct a solicitor to appear on his behalf at the directions hearing on 19 May 1995 if he wished to seek an adjournment.

The appellant was again admitted to hospital on 2 June 1995 where he had surgery on 5 June 1995 and he was obviously unwell at the time the undefended hearing took place. It was the appellant's case that Finn J had evidence of his medical condition before her on 14 June when she proceeded to hear the matter undefended.

The orders of 10 August 1995 provided for a period of 7 days before which they came into effect during which time the appellant could file an application to have the orders set aside. This the appellant did and Finn J heard this application on 18 September 1995 when it was dismissed. The appellant was legally represented at this hearing. In dismissing the application Finn J took into account evidence regarding the effect of the proceedings on the respondent's health.

On 4 October 1995 the appellant filed a notice of appeal against the orders made by Finn J on 18 September 1995. On 2 April 1996 the appellant had again ceased to be represented. The appellant's appeal came on for hearing on 28 May 1996 at which time there was no appearance by the appellant and the appeal was noted as abandoned.

On 30 March 1998 the appellant filed an application for re-instatement of his appeal and on 20 May 1998 O'Ryan J ordered its re-instatement.

The Full Court of the Family Court dismissed the appeal although on different bases:

(a) Lindenmayer J expressed the view that Taylor's Case (1979)

  • FLC 90- 674 gave the Court a discretion to set aside a judgment against a party to proceedings who, through no fault of his of her own, had been deprived of the opportunity to appear or present his case. In the present circumstances however, he found that the appellant had not effectively availed himself of an opportunity to seek an adjournment; and

(b) Brown and Kay JJ expressed the view that having regard to the appellant's circumstances, Finn J was in error in dismissing the appellant's application for re-hearing. However, in light of the lapse of 3 years since the making of the orders and their substantial execution, they concluded that the matter should not be remitted for further hearing.
The grounds of appeal include:

  • That the Full Court erred in law in not expressly deciding whether a miscarriage of justice had occurred given the circumstances surrounding the appellant's non attendance at the ex parte hearing and where it was not possible for the appellant to apply for an adjournment when he was representing himself;
  • That the Full Court erred in not deciding whether a miscarriage of justice had occurred by reason of Finn J hearing the application on 6 September 1995 in relation to the order made by her on 10 August 1995, this being a conflict of interest;
  • That the Full Court, by not expressly deciding whether a miscarriage of justice had occurred within the meaning of s79A(1)(a) erred in their approach to the hearing of the appeal generally;
  • That the majority of the Full Court erred in law by implying a time limit in which the court can set aside orders either pursuant to s79A of the Family Law Act or the inherent jurisdiction of the Court and, in particular, where the main property still existed; and
  • That the Full Court erred in law in failing to find that the orders of 10 August 1995 were not effective and were thus unconstitutional and incapable of enforcement and that the enforcement of same had been a violation of the appellant's human rights.

 

GUSS v. JOHNSTONE (M55/1999)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 13 November 1997

Date of grant of special leave: 14 May 1999

In September 1992 Johnstone, a barrister, took action in the Magistrates Court to recover fees he was owed by Guss, a solicitor. Johnstone obtained judgment for $8,430 plus interest and costs. Guss unsuccessfully applied to set aside that judgment. Applications to a Master of the Supreme Court and a single judge of the Supreme Court were also unsuccessful. A further application to the Magistrates Court was also dismissed. Guss then applied to the Supreme Court for a declaration that that dismissal was a nullity. That application was dismissed by Hayne J. Guss appealed to the Full Court, which ordered security for costs be given. The security was not provided and the appeal was dismissed.

Johnstone issued a bankruptcy notice in respect of the taxed costs, in the sum of $4,989.40. Guss filed an affidavit claiming a counter-claim, set-off or cross demand. The effect of filing such an affidavit was that the time for compliance with the bankruptcy notice was extended until the Court determined whether it was satisfied that the debtor had such a counter-claim, set-off or cross demand. The affidavit claimed that, as a result of Johnstone's negligent advice, costs of certain proceedings in which Guss and others had been involved were increased, that recovery of property had been delayed leading to further losses and that all of these far exceeded the amount in the bankruptcy notice. Sundberg J was not satisfied that Guss had established a prima facie case against Johstone. Guss appealed to the Full Court. He also sought a stay pending the Full Court hearing, but this was refused by Sundberg J. The amended notice of appeal included an appeal against the refusal of a stay.

The Full Court (Ryan, Whitlam & Marshall JJ) dismissed the appeal. The Full Court took the view that at the end of the day on which Sundberg J had given his decision, the time for compliance with the bankruptcy notice had expired (there having been no application for extension of time). Therefore an act of bankruptcy had occurred. As a result there was no utility in the Full Court acceding to the application to set aside the declaration made at first instance.

The grounds of appeal include:

  • The Full Court of the Federal Court of Australia erred in failing and/or declining to decide whether or not the Judgment Debtor had a counter-claim, set-off or cross-demand of the type referred to in s40(1)(g) of the Bankruptcy Act 1966 (Cth) on the basis that there was no declaratory relief of any utility that could be granted in favour of the Judgment Debtor as the time for compliance with the bankruptcy notice had expired at the end of the day upon which the learned primary judge pronounced that he was not satisfied of the existence of a counterclaim, set-off or cross-demand within the meaning of s40(1)(g) of the Act and it was not capable of being further extended or revised.

On 21 December 1998 Justice Kenny ordered that the Geelong Building Society (in liquidation) be substituted as petitioning creditor in place of the respondent in bankruptcy proceedings in the Federal Court of Australia and ordered that the estate of the appellant be sequestered. An application for leave to intervene will be made at the hearing of the appeal on behalf of the Geelong Building Society (in liquidation). The respondent did not appear on the hearing of the application for special leave to appeal and will not appear at the hearing of this appeal.