Full Court Matters - March 2000


(Other than Applications for Special Leave to Appeal)

FEBRUARY/MARCH 2000


MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v. ABDI (S156/1999)

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

Date of judgment: 26 March 1999

Date of grant of special leave: 10 September 1999

The respondent arrived in Australia on 24 February 1998. He was taken into custody on arrival. His application for a protection visa was refused by a delegate of the Minister and the Refugee Review Tribunal (the Tribunal) affirmed this. He then applied to a single judge of the Federal Court for judicial review. The primary judge set aside the Tribunal's decision and remitted the matter to the Tribunal for a re-hearing. The appellant appealed to the Full Federal Court which dismissed the appeal.

The respondent is a Somali national. He was caught up in an intra-clan dispute over leadership and land and feared returning to Somalia which is in a state of clan or civil warfare. The legal issues for consideration arise in the context of civil or clan warfare in Somalia which has been in a state of civil war over the past decade.

The Tribunal accepted that Somalia was in a state of civil or clan warfare, however it found that this did not give rise to Convention based persecution. The Tribunal applied the reasoning of the House of Lords in Adan v. Secretary of State for the Home Department [1998] 2 WLR 702 in holding that a claimant must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare.

The Full Court posed the question arising on appeal thus: whether the Tribunal erred in applying a requirement that in a clan war context, something over and above the risk of harm inherent in the civil war was required to be shown. In relation to Adan the Full Court held that it did "not accept that a clan or race based warfare cannot, without some further and differential degree of risk, amount to persecution in the sense that an individual is selected out for persecution treatment because he is a member of a particular clan".

In November 1999 the respondent asserted that he wished to return to Somalia. He departed Australia on 9 December 1999 bound for Somalia. Although the respondent has now left Australia the appellant does not consider the appeal to be moot.

The grounds of appeal include:

  • [That] the Full Court of the Federal Court erred -

(a) In holding that a person could invoke Australia's protection obligations under the Refugees Convention in circumstances where the serious harm feared in his country of nationality arose from a civil war based on race or religion; and

(b) In failing to hold that, consistently with the approach adopted in Adan v. Secretary of State for the Home Department [1998] 2 WLR 702 and applied by the Refugee Review Tribunal, the person must show that he or she is at greater risk than the risk to other members of their clan or society arising from the civil or clan warfare itself.

 

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v. IBRAHIM (S157/1999)

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

Date of judgment: 9 April 1999

Date of grant of special leave: 10 September 1999

The respondent arrived in Sydney on 25 December 1997. He had travelled under a false name from Thailand where he had been living for about two years. He was taken into detention on arrival and has remained in detention ever since.

On 2 January 1998, the respondent lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. This application was refused and the Refugee Review Tribunal (the Tribunal) affirmed this. He then applied to a single judge of the Federal Court for judicial review. This application was dismissed. An appeal to the Full Federal Court was allowed.

The respondent is a Somali national who claims to fear persecution in Somalia for reasons of his membership of the Rahanwein clan and his membership of a subclan of the Rahanwein. The crucial question before the Tribunal was whether or not the respondent's fear was a fear of persecution for a Convention reason. The Tribunal concluded that the harm the respondent feared was not persecution for reasons of his membership of the clan or subclan but rather unsystematic warfare because of shifting allegiances which were the consequence of power struggles between clans and subclans. The Tribunal said "what emerges from all the evidence is a picture of the ordinary risks of clan warfare ... none of the material before me points to circumstances which would convert the conflict into persecution".

At first instance the trial judge held that the Tribunal had not applied an incorrect test. The respondent appealed.

The Full Court of the Federal Court found that the Tribunal adopted an erroneous approach to the expression "systematic conduct". It said that the Tribunal should have determined whether the particular experiences of the respondent were caused by persecution for Convention reasons and in the light of those findings it should have considered whether, at the time of the determination of the application, there was a real chance of the respondent being persecuted by reason of his membership of the Rahanwein clan if he were to return to Somalia.

The grounds of appeal include:

The Full Court of the Federal Court erred -

  • In holding that a person could invoke Australia's protection obligations under the Refugees Convention in circumstances where the serious harm feared in his country of nationality arose from a civil war where "the reasons for the war are to harm on the basis of race or clan";
  • In formulating the test as depending on "whether the reasons for the war are to harm on the basis of race or clan or whether the struggle is in substance directed to control of resources or to the assertion of dominance over territory" because -

(1) a clan-based civil war inevitably places individuals at risk of persecution on a Convention ground, namely race or membership of a particular social group; and

(2) it is not necessary that the Convention reason be the sole reason for the persecution.

 

HUGHES v. THE QUEEN (P58/1999)

Order for Removal: 20 October 1999

By indictment dated 15 July 1997, the Commonwealth Director of Public Prosecutions commenced proceedings in the District Court of Western Australia against the defendant and another. The indictment alleged breaches of the Corporations Law. The trial was listed for hearing on 8 December 1998 at which time the presiding District Court Judge amended the allegations in the counts. In the course of pre-trial argument, counsel for the prosecutor submitted that the provisions of the Criminal Code (WA) did not apply to the conduct of the trial, as the offences before the Court were Commonwealth offences.

By notice of motion dated 23 August 1999, the defendant applied to Healy DCJ to quash the indictment on the grounds that it failed to disclose an offence against the laws of the Commonwealth or an offence against the laws of Western Australia. It was submitted on behalf of the defendant that the application involved a matter arising under the Constitution or involving its interpretation and accordingly notices pursuant to s78B of the Judiciary Act 1903 were required. His Honour accepted this submission and vacated the trial date to enable the defendant to bring an application under s40 of the Judiciary Act 1903 for removal into the High Court of Australia of so much of the cause as is involved in the defendant's motion to quash the indictment.

On 20 October 1999 the High Court ordered the removal of that part of the proceedings pending in the District Court of Western Australia.

On 29 November 1999 Justice Gummow stated a case for the consideration of the Full Court, raising the following questions:

(i) Is s45 of the Corporations Act 1989 (Cth) ("the Principal Act") as amended by s4(1) of the Corporations Legislation Amendment Act 1990 (Cth) a valid exercise of legislative power of the Commonwealth of Australia in so far as, with respect to Western Australia, it purports to require offences to be " taken to be " offences against the "laws of the Commonwealth"?

(ii) If yes, against which laws of the Commonwealth are the offences alleged in the indictment committed?

(iii) Is s43(2) of the Principal Act a valid and effective conferral of function or power upon " an officer or authority of the Commonwealth " to prosecute offences against the Corporations Law of Western Australia.

(iv) Is s29 of the Corporations (Western Australia) Act 1990 ("the State Act") a valid exercise of the legislative power of the Parliament of Western Australia in so far as it purports to create offences which are "taken to be" offences against the laws of the Commonwealth?

(v) If offences by the State Act are "taken to be" offences against the laws of the Commonwealth, against which laws of the Commonwealth are the offences alleged in the indictment committed?

(vi) Are offences which, by the State Act, are "taken to be" offences against the laws of the Commonwealth, offences against the laws of the Commonwealth or offences against the laws of Western Australia?

(vii) Do ss31 and 33 of the State Act constitute a valid and effective conferral of function or power upon " an officer or authority of the Commonwealth " to prosecute offences against the Corporations Law of Western Australia?

(viii) By what legislative authority is the Commonwealth Director of Public Prosecutions empowered to exercise the purported conferral, pursuant to ss31 and 33 of the State Act, of function or power to prosecute offences against the Corporations Law of Western Australia?

(ix) Does the indictment in the matter herein disclose an offence known to the law of:

(a) The Commonwealth?

(b) The State of Western Australia?

(c) The Australian Capital Territory?

The Attorneys-General of the Commonwealth, Victoria and Western Australia will intervene in this matter.

 

SCOTT & ORS v. DAVIS (A16/1999)

Court appealed from: Full Court, Supreme Court of South Australia

Date of judgment: 26 June 1998

Date of grant of special leave: 18 June 1999

This application arises out of the crash of a light aeroplane which occurred in mid-afternoon of Sunday, 29 July 1990, in the Barossa Valley. The first appellant (Travis) was the surviving passenger in the plane. He was 11 at the time and suffered spinal injuries. The pilot (Bradford) was killed in the crash. The second and third appellants, who are Travis' parents, saw the plane crash and were at the scene of the crash within minutes. As a result they suffered nervous shock.

The respondent, who owned a property near Jacob Creek, is Travis' uncle. He was a pilot. He collected light aircraft and housed and flew them around his property. There was an airfield and a hangar on his property. The surrounding country consisted of rolling hills, open land and vines to the west. On that Sunday the Scott family were visiting the Davis property for a family celebration. Also present on that Sunday were three other pilots, including Bradford. There were three planes being flown that afternoon, including a yellow 1946 two seater Aeronca owned by the respondent. The respondent, through his wife, asked Bradford to take the boys for a "ride". Bradford agreed. Travis was put into the Aeronca and seated behind the pilot. The Aeronca took off and whilst turning, crashed at a place just north of Jacob Creek. The pilot had lost control of the aircraft whilst executing a low level turn at low speed. The aircraft had stalled. The pilot was killed on impact.

All three appellants instituted proceedings for damages against the respondent and his wife. The estate of the pilot was not joined in any of the actions. The trial judge awarded damages to each of the appellants, finding that:

  • the pilot was negligent in the management and operation of the aircraft and that his negligence had caused the crash and therefore the injuries to Travis;
  • the respondent, as owner, was vicariously liable for the negligence of the pilot; and
  • neither the respondent nor his wife was personally negligent in arranging for the deceased pilot to fly Travis in the Aeronca.

There was an appeal and cross-appeal. Doyle CJ and Nyland J (Millhouse J dissenting on this issue alone) allowed the appeal on the basis that the respondent was not vicariously liable for the negligence of the pilot. The Full Court found that if the principle affirmed in Morgans v. Launchbury [1973] AC 127 were applicable to aircraft, the trial judge had correctly applied the principle. However, the majority confined the application of the principle to the negligent use of motor vehicles and declined to apply the principle more widely.

The grounds of appeal are:

The Full Court erred in restricting the principle of vicarious liability affirmed in Launchbury v. Morgans [1973] AC 127 to the use of motor vehicles; and The Full Court erred in declining to follow and apply decisions in England and Canada which apply the principle to boats and to aircraft;

The respondent has filed a notice of contention based upon the following ground:

  • The Full Court erred in failing to determine that if the doctrine of vicarious liability discussed in Launchbury v. Morgans [1973] AC 127 applies to aircraft then on the facts of the present case the respondent was not liable in accordance with that doctrine having regard to:

(a) the fact that the carriage of the first appellant in the respondent's aircraft was not performed for the purpose and/or benefit or sufficient purpose or benefit of the respondent; or

(b) the dominant purpose of the use of the respondent's aircraft, in carrying the first appellant, was to satisfy the request of the first appellant's parents that the first appellant be taken for a pleasure flight.

 

KENNEDY CLEANING SERVICES PTY LTD v. PETKOSKA (C16/1999)

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

Date of Judgment: 12 October 1998

Date of Grant of Special Leave: 6 August 1999

The appellant was the employer of the respondent. The respondent suffered from mitral stenosis being a narrowing of the mitral valve in the heart. She had been diagnosed as having this disease and heart rhythm disturbance as early as 1988. The respondent's condition was closely linked with the risk of blood clots forming in the heart and being carried to the brain thereby causing an embolism.

On 9 September 1992 the respondent suffered a stroke at work as a result of the mitral stenosis. The occurrence of the stroke was not related to the physical activity of work or otherwise contributed to by employment. The respondent was, from the date of the stroke, totally incapacitated for work.

The respondent lodged an application for workers compensation and on 24 June 1997 the magistrates court held that compensation was payable because the respondent had, for the purposes of Section 7 of the Workers' Compensation Act 1951 (ACT), suffered personal injury in the course of her employment.

On appeal to the Supreme Court Crispin J overruled this decision.

The respondent then appealed to the Full Court of the Federal Court arguing that Crispin J had erred in finding that the stroke was not a personal injury within the meaning of Section 7 of the Workers' Compensation Act and, in particular, erred in finding that it was necessary for the respondent to demonstrate that there had been a rupture of a blood vessel in order to bring the incident within the meaning of an injury. The Full Court of the Federal Court upheld the appeal.

The grant of special leave to appeal to the High Court is conditional upon the appellant filing an undertaking that it will -

(a) Not seek to disturb the costs order made in the Full Federal Court of Australia; and

(b) Pay the respondent's costs in this Court in any event.

The ground of appeal is:

  • The Court erred in holding that the respondent had suffered an injury for the purposes of s7(1) of the Workers' Compensation Act 1951 (ACT).

 

TRENORTH LIMITED (FORMERLY EUROLYNX PROPERTIES LTD) v. MALLESONS STEPHEN JAQUES (M100/1999)

Court Appealed from: Court of Appeal, Victoria

Date of Judgment: 7 October 1998

Date of grant of special leave: 10 September 1999

In 1989 the appellant (Trenorth) leased shop premises to Swaeder at an annual rental of $156,000. At the same time these parties entered into a side agreement for a 3-month rent-free period and a payment by Trenorth to Swaeder of $156,000 towards fit-out costs. The respondent (Mallesons) drafted the lease and the side agreement. In September 1989, Trenorth sold the shop premises to the Krakowskis. Mallesons prepared the section 32 statement, which a vendor is required by legislation to give to a purchaser. The statement had a copy of the lease attached and the lease falsely stated that the lease comprised the entire understanding and agreement between Trenorth and Swaeder. In response to a Requisition on Title requiring production of "agreements relating to the tenancy", Mallesons drafted an answer which referred only to the lease. In reliance upon Mallesons' advice Trenorth's responsible officer did not disclose the side agreement either in the section 32 statement or the Answers to Requisitions. The courts below found that the officer would have disclosed the side agreement, if advised to do so by Mallesons. The Krakowskis brought proceedings against Trenorth. Trenorth joined Mallesons as a third party, but not as a defendant to the Krakowskis' action.

In Krakowski v. Eurolynx Properties Ltd, the High Court found Trenorth liable to the Krakowskis for fraudulent misrepresentation and the matter was remitted to the Victorian Supreme Court for hearing. As a result of orders made by McDonald J, the contract of sale was rescinded, Trenorth was required to pay $3,482,617 plus costs to the Krakowskis and the shop was returned to Trenorth. Trenorth then sold the shop in July 1996 and derived net proceeds of $743,000. In the subsequent trial of the third party proceedings between Trenorth and Mallesons, Eames J held that Mallesons had acted negligently and in breach of its retainer in failing to advise Trenorth to disclose the side agreement. Eames J fixed the damages flowing to Trenorth at $1,304,003 plus interest. This figure was based on the sum of $3,482,617 Trenorth had been ordered to pay to the Krakowskis less (a) the proceeds of sale recouped by Trenorth of $743,000; (b) notional interest on the purchase price received from the Krakowskis; (c) rent received by Trenorth and (d) an allowance for the difference between the contract price of the land and its market value at the time it was sold to the Krakowskis.

Mallesons appealed and Trenorth cross-appealed. The Court of Appeal concluded that on the evidence a finding could not be made that Mallesons' negligence caused the whole of Trenorth's loss. Kenny JA (with whom Callaway & Buchanan JJA concurred) concluded on the facts that the cause of Trenorth's loss was its own deliberate and wrongful act, the negligence of Mallesons being but an antecedent (though necessary) precondition. The Court did not find it necessary to consider Mallesons' other grounds of appeal. The appeal by Mallesons was allowed and the cross appeal dismissed. The Court found that the loss caused by Mallesons was limited to $30,000 plus interest, this being the difference between the contract price in September 1989 and the actual value of the premises at that time.

The grounds of appeal include:

  • In circumstances where:

(a) the appellant's liability to the purchasers (the Krakowskis) arose because the section 32 statement falsely stated that the instrument of lease between appellant and the tenant (Swaeder) contained the whole of the agreement between it and Swaeder; and

(b) the false statement only appeared in the section 32 statement because of the negligent preparation and provision of same by the respondent in its capacity as solicitors for the appellant;

 

  • the Court wrongly held that the respondent's negligence did not cause the whole of the loss suffered by the appellant.
  • In holding that the respondent's negligent preparation and provision of a false section 32 statement did not cause the whole of the appellant's loss the Court did not apply, alternatively, misconceived and misapplied the principles stated in March v. E & MH Stramare Pty Limited (1991) 171 CLR 506.
  • The Court wrongly held that the fact that the appellant had been held liable to the Krakowskis for fraudulent misrepresentation:

(a) broke any causal link with the respondent's negligence; and

(b) constituted a novus actus interveniens.

 

RHMcL v. THE QUEEN (M95/1999)

Court Appealed from: Court of Appeal, Victoria

Date of Judgment: 9 October 1998

Date special leave granted: 10 September 1999

The appellant was found guilty of various sexual offences against two of his stepdaughters. The appellant had been tried jointly with his wife, who was also found guilty of two sexual offences involving those daughters.

The appellant was found guilty on 16 counts and not guilty on 2 counts. The appellant's total effective sentence was 12 years' imprisonment with a non-parole period of 10 years. The appellant sought to appeal against conviction and sentence, but on the first day of the appeal hearing abandoned the applications against sentence. The Court of Appeal allowed the appellant's appeal against conviction on 4 counts. Those convictions were quashed, sentences upon them set aside and a new trial was ordered. The Court further ordered that the sentences on the remaining counts and the non-parole period be set aside and then substituted terms of imprisonment. The total effective sentence substituted by the Court of Appeal on the remaining counts was 12 years' imprisonment with a non-parole period of 10 years.

The Court of Appeal substituted increased sentences because it thought the sentences passed below were manifestly inadequate once sentences accounting for a net period of 3½ years' imprisonment were removed. The appellant contends that s569(1) Crimes Act 1958 (Vic) does not permit this substitution.

The ground of appeal is:

  • The Court of Appeal of the Supreme Court of Victoria erred in law in applying the provisions of Section 569(1) of the Crimes Act 1958 (Vic) to the sentences imposed upon Counts 3,4,8,9,10,11,12,16,18,19,20 and 24 of the presentment.

AGAR & ORS v. HYDE (S159/1999

AGAR & ORS v. WORSLEY (S160/1999)

Court appealed from: Supreme Court of NSW, Court of Appeal

Date of judgment: 19 October 1998

Special leave granted: 10 September 1999

The respondent in each of these matters is a young man who was seriously injured playing rugby union. Mr Hyde was hooker for Warringah Rugby Club playing Gordon Rugby Club in August 1986. He was 19 at the time. It is alleged that the Gordon forward pack in scrum formation charged the Warringah pack before it was set in position. Mr Hyde suffered severe spinal injury and resultant incomplete quadraplegia. Mr Worsley was also hooker, representing Wagga Agricultural Rugby Football Union when it played against the Rivcoll team in August 1987. He was 18 at the time. It was alleged that the Rivcoll forward pack engaged in scrum formation before Mr Worsley was ready to receive them and while his head and neck were at an awkward angle. He suffered severe spinal injury and resultant quadraplegia.

Both respondents commenced proceedings by statement of claim. The defendants to each matter included persons associated with the particular match in which each respondent was injured and persons concerned with the administration of rugby in Australia. These defendants are sued for negligence in the conduct of the particular football match or their responsibility for the rules under which it was played, including responsibility for failure to enforce the rules or to have them modified locally so as to require scrummaging to take place safely. These claims have not yet come to trial.

The present applications are concerned with attempts by the respondents to join a wider group of defendants (the appellants in the present proceedings) the International Rugby Football Board (the IRFB). The respondents sought leave to proceed against the IRFB pursuant to Part 10 Rule 2 of the Supreme Court Rules (which governs proceedings against defendants served outside Australia). The respondents wish to sue the IRFB for their failure, as the persons and bodies responsible for rugby at the international level in 1986, to ensure that the rules of rugby prevented or reduced the risk of injury to hookers in the type of incident that befell the respondents. They argue that the risk of such injuries could have been avoided by the adoption of rules to "depower" the engagement of scrums. It is alleged that the IRFB, as the persons and bodies responsible for administering the game of rugby, were subject to a duty of care owed to the respondents to amend the laws of the game to depower the engagement of the forwards in a rugby scrum. They fear that unless the IRFB defendants are included, the local defendants will defend the action on the basis that they were bound to apply the Laws of the Game promulgated by the IRFB.

The judge at first instance dismissed the respondents' applications to join the appellants and set aside service on the appellants on two distinct bases, namely: that the respondents had failed to establish that there was a good arguable case against the appellants in negligence because there was no relevant proximity between the parties to give rise to a duty of care, and; the applications were also refused by the trial judge in the exercise of the discretion vested in him by the provisions of Part 10 Rule 2. In declining to exercise the discretion, the judge had regard to the following circumstances: (a) that the exorbitant jurisdiction of requiring a foreigner to defend a claim before a court should be exercised with restraint, especially in a context where the claim was statute-barred under the municipal law; and (b) the difficulties faced by the respondents in establishing liability against the IRFB respondents.

The respondents applied for and obtained leave to appeal against these decisions and the Court of Appeal allowed the appeals and set aside the orders of the trial judge.

The grounds of appeal include:

  • The Court of Appeal erred in finding that jurisdiction against the appellants had been established to the requisite level in accordance with Part 10 Rule 1A of the Supreme Court Rules by wrongly concluding that:

(1) The proceedings were properly founded on a cause of action in negligence;

(2) A duty of care was owed to the respondent in the circumstances;

(3) Any cause of action in negligence against the appellants arose in New South Wales; and

(4) The appellants had been properly joined as parties to the proceedings.

 

  • The Court of Appeal erred in the formulation and application of the principles to be applied when leave is sought to join foreign defendants to local proceedings.

The appellants have filed a Notice of Motion seeking leave to rely on two additional grounds of appeal. These grounds are:

  • The Court of Appeal erred in the formulation and application of the principles to be applied when leave is sought to proceed against a foreign defendant who has not entered an appearance or otherwise submitted to the jurisdiction; and
  • The Court of Appeal erred in holding that, on an application for leave to proceed against a foreign defendant, it was not relevant to consider the merits or strength of the plaintiff's case other than for the purposes of satisfying itself that the case was not apt to be struck out.

FOSTER v. THE MINISTER FOR CUSTOMS AND JUSTICE (B92/1999)

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

Date of Judgment: 22 October 1999

Date of grant of special leave: 10 December 1999

In 1995 the appellant was prosecuted in the United Kingdom for false trading offences and sentenced to imprisonment. Whilst on leave from jail the appellant travelled to Australia under a false passport and name. He was arrested at Darwin airport and extradited to Queensland to face charges under the Corporations law. He was sentenced to imprisonment.

Upon his release the appellant was arrested pursuant to a provisional warrant issued under the Extradition Act 1998 (Cth). The appellant failed to appear at the extradition hearing and a Magistrate found the appellant eligible for surrender to the UK. Thereupon the respondent determined to surrender the appellant to the UK to stand trial on five charges. The UK authority later advised that it intended to proceed only with three of the charges. The respondent considered the extradition request in light of that change in circumstances and decided to order the appellant's extradition. It is this latter decision that the appellant seeks to review in these proceedings.

The appellant was unsuccessful at first instance.

The appellant appealed to the Full Court. The appeal essentially concerned whether the judge at first instance had correctly decided that the respondent had taken into account the matters that the regulations to the Extradition Act required to be considered. These were:-

(a) whether the offences with which the appellant remained charged were "trivial" so that extradition could not be said to be warranted; and

(b) whether extradition would, in the circumstances pertaining to the appellant, be "oppressive" or "too severe a punishment".

The appellant argued that the respondent might have misunderstood what was involved in the charges, and that the punishment was too severe because he had already been held in custody for some time in Australia. In a majority decision the appellant's appeal was dismissed.

The ground of appeal is:

  • That the Full Court of the Federal Court erred in finding that the Minister is not bound under regulation 7(1) Extradition (Commonwealth Countries) Regulations 1988 (Cth) to take into account the nature and extent of the punishment to which it is likely that the person to be surrendered would be exposed if that person is convicted of the extradition offences.