Full Court Matters - March 2001

(Other than Applications for Special Leave to Appeal)

COMMENCING 6 MARCH 2001

WARD & ORS v. CROSSWALK PTY LTD & ORS (P67/2000)

THE STATE OF WESTERN AUSTRALIA v. WARD & ORS (P59/2000)

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY v. WARD & ORS (P62/2000)

NINGAMARA & ORS v. THE NORTHERN TERRITORY OF AUSTRALIA & ORS (P63/2000)

Court Appealed from: Full Court, Federal Court of Australia

Date of Judgment: 3 March 2000

Date special leave granted: 4 August 2000

The proceedings in these matters were commenced, by one of three Aboriginal groups, with an application lodged under the Native Title Act 1993 (Cth) on 6 April 1994. Following the lodgment of the application, two further native title claimant groups were joined to the proceedings. Each group sought a determination of native title in respect of lands and waters in the north of Western Australia and, in the case of two of the claimants, adjacent land in the Northern Territory.

The impugned land included land subject to numerous different land tenure and use including vacant Crown land, pastoral leases, Crown land in or about the town of Kununurra, the Ord River irrigation area, Lake Argyle and the Argyle Diamond Project and the Keep River National Park. The waters, subject to the claim, included an area within the inter tidal zone on the east side of Cambridge Gulf.

P67/2000 (Appeal by the Miriuwung Gajerrong Native Title Claimants)

In the appeal in matter P67/2000, the applications for determination of native title related to land in the East Kimberley region of Western Australia and adjacent to the Keep River National Park area of the Northern Territory. At the time the application was made the claim area was Crown land or land belonging to the Crown in the State of Western Australia and the Northern Territory. However, at various times between the 1880's and the date of making the application, the claim area had been subject to statutory grants made by the Crown including numerous pastoral leases and various leases made pursuant to legislation of the Western Australian and Northern Territory parliaments. In addition, in the 1960's and early 1970's, a substantial portion of the land within the claim area had been resumed under s109 of the Land Act 1933 (WA). In 1972 and 1975, additional lands were compulsorily acquired pursuant to the Public Works Act 1902 (WA) for the purposes of the Ord Irrigation Project.

Within the claim area, there were various historic reserves created under various pieces of Western Australian land legislation. In addition, a portion of the land resumed for the Ord Irrigation Project was reserved in order to establish the Mirima National Park. Within the claim area, there were various laws to control human activities on certain lands operating at the time of the application.

From the numerous parties that had an interest in the application for a native title determination, the initiating application was brought by the Miriuwung and Gajerrong people. Cecil Ningamara and other Aboriginal people who claimed an interest in the Territory area separate from that of the Miriuwung and Gajerrong people, became the second applicants. The third applicants were the Balangarra peoples who claimed native title in respect of Booroongoong Island.

The respondents at trial were The State of Western Australia as first respondent, the Northern Territory as the second respondent, and various other parties with an interest in the claimed lands.

The trial Judge, Lee J, found that native title existed in respect of the claim area and that the holders of that title were the Miriuwung and Gajerrong people. His Honour further held that the Miriuwung and Gajerrong people and the Balangarra peoples held native title over Booroongoong Island. Justice Lee also found that, in respect of certain portions of the claim area, native title had not been extinguished but had been regulated, controlled, curtailed, restricted, suspended or postponed by virtue of various laws of Australia, the State and the Territory.

On appeal to the Full Court of the Federal Court of Australia, the Court unanimously upheld the trial Judge's finding that native title existed in respect of the whole of the claim area. However, the majority of the Court disagreed with the trial Judge's finding that native title had not been extinguished in much of the claim area. The majority found that native title could be partially extinguished and that, save in a small area of mud flats, native title had been partially extinguished by the historic granting of pastoral leases and other statutory grants and controls. The majority also found that total extinguishment occurred through the enclosure and improvements carried out on Western Australian pastoral leases, especially through fencing as well as by the granting of mining leases and the carrying into effect of works in the Ord Irrigation Project area and the Argyle Diamond Mine area. In this matter, the Full Court of the Federal Court, by majority, rejected the determination of Lee J.

The issues said to arise in the appeal are:

• Whether the Full Court erred in the application of the requirement of a clear and plain intention to extinguish native title;

• Whether the Full Court erred in finding that the trial judge failed to give due weight to the 'inconsistency of incidents' test in the consideration of the imposition of statutory controls or grant of use of land because he applied the test having regard to the requirement of a clear and plain intention to extinguish native tile;

• Whether the Full Court erred in finding that 'inconsistency of incidents' need not be permanent in order to bring about extinguishment;

• Whether the Full Court erred in finding that the imposition of statutory controls or the grant of rights to a third party or the use of land that affects or affected the enjoyment of native title has the effect of extinguishing the exclusivity of the elements of native title and thereby partially extinguishes native title;

• Whether the Full Court erred in finding that the native title of the appellants is a 'bundle of rights' which can be extinguished partially, right by right, and with cumulative effect in the event of a succession of grants or appropriations;

• Whether the Full Court erred in finding that express reservations for Aboriginal access in pastoral leases and nature reserves, and the absence of such reservations in leases manifests a clear and plain intention to extinguish native title;

• Whether the Full Court erred in finding that the 'enclosure and improvements' in pastoral leases under various statutes and regulations as a matter of law and independent of any operational inconsistency, totally extinguishes native title in the subject areas;

• Whether Full Court erred in finding that an 'enclosure' for the purposes of the relevant legislation is any 'fenced' area;

• Whether the Full Court erred in finding that express reservations allowing Aboriginal access to pastoral leases for the purpose of seeking sustenance under various statutes and regulations defined the scope of Aboriginal rights reserved, and Aboriginal rights not included are extinguished to the extent of inconsistency with rights granted under pastoral leases;

• Whether the Full Court erred in finding that land in the Ord Project Area held for future expansion, as a buffer zone, for drainage and for protection against erosion and flooding is land used in a manner which totally extinguishes native title;

• Whether the Full Court erred in finding that all land resumed for the Ord Project (with limited exceptions) comes within the definition of 'works' in the Rights in Water and Irrigation Act 1914 (WA) and so wholly extinguishes native title;

• Whether the Full Court erred in finding certain resumptions of land pursuant to the Rights in Water and Irrigation Act and Public Works Act vests an estate in fee simple in the Crown which wholly extinguishes native title and in doing so, whether the majority erred in failing to consider the application of the Racial Discrimination Act 1975 (Cth) under the operation of the Native Title Act 1993 (Cth);

• Whether the Full Court erred in failing to apply the provisions of s47B of the Native Title Act to areas of vacant Crown land occupied by the Miriuwung and Gajerrong peoples;

• Whether the Full Court erred in finding that any native title that may have existed in relation to minerals or petroleum was extinguished by various statutory and regulatory provisions;

• Whether the Full Court erred in finding that the determination of the trial judge that native title included rights to 'resources' must be confined to 'resources of a customary or traditional kind' and excludes minerals or petroleum;

• Whether in relation to the claim area covered by the Argyle Diamond Mine Project, the Full Court erred in finding that native title is wholly extinguished by the size of infrastructure, nature and intensity of the activities contemplated in its execution and must totally yield to the lessee's rights (and obligations) under the Agreement, the Argyle Diamond Joint Venture Agreement Act 1981 (WA), the Mining Act 1978 (WA) and the mining lease itself and that all native title rights are wholly extinguished by the grant of the special agreement mining lease under the joint venture Act;

• Whether the Full Court erred in finding that the character and other aspects of the mining leases and general purpose leases granted under the Mining Act extinguishes all native title rights;

• Whether the Full Court erred in finding that the statutory scheme of the Mining Act and regulations thereunder establishes a regime which extinguishes all native title rights on lands leased;

• Whether the Full Court erred in finding that the Argyle Diamond Joint Venture Agreement Act does not offend s9(1) of the Racial Discrimination Act;

• Whether the Full Court erred in finding that the determination of native title should recognise the public right to fish in tidal waters as an 'other interest' within ss225(c) and 253 of the Native Title Act and whether such a finding has the effect of extinguishing the exclusivity of native title rights to fish in the inter-tidal waters; and

• Whether the Full Court erred in finding that 'a right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the determination area' cannot be the subject of a determination of native title.

Notices of contention have been filed by the first, fifth and seventh respondents. The first respondent has also cross-appealed.

P59/2000 (Appeal by Western Australia)

The appeal in matter P59/2000 relates to an area of some 7,900 square kilometers of land in the East Kimberley and an area of the Northern Territory, the Keep River National Park. The claim also includes 3 islands off the West Australian coast.

Two other groups made claims over some of the land, the subject of the application, including an application by a group of the Miriuwung people for rights and interests in the Keep River National Park. The Balangarra peoples also brought an overlapping application for determination for the Lacrosse Island. There have been a large number of grants of tenure and other dealings in the determination area. Most of the land in the Western Australian portion of the determination area has been subject to grants of pastoral leases, some the subject of other Crown leases, and in others, a number of reserves created. An irrigation scheme over much of the determination area was implemented in 1916.

As in P67/2000, Lee J found that native title existed over some of the claim area and the appeal against his decision was upheld in part, and the determination of native title set aside.

The issues said to arise in the appeal are:

• Whether the law of extinguishment is correctly stated by the Full Court;

• Whether it is correct to describe native title as a 'bundle of rights' and whether component rights may be extinguished individually;

• Whether, in circumstances where the Crown has set aside certain land for a purpose inconsistent with native title, the commencement of use for that purpose on part of the land extinguishes native title in relation to all of that land;

• Whether pastoral leases in Western Australia extinguish native title and, if so, to what extent;

• The meaning of the word 'enclosed' in s106(2) Land Act 1933 (WA) and in the Aboriginal access provision in pastoral leases under earlier land legislation;

• Whether those parts of the Ord Project land which are held for 'future expansion, as buffer zones for drainage and for protection against erosion and flooding' are lands which are used in a manner which extinguishes native title;

• Whether the resumption of land under the Public Works Act 1902 (WA) extinguishes native title;

• Whether the resumption of Packsaddle land in December 1975 was invalid because of s10 of the Racial Discrimination Act;

• The extinguishing effects of: reserves, leases, the Rights in Water and Irrigation Act, and the cumulative effect on native title of the grant of pastoral leases and the subsequent termination of the right to obtain sustenance under the Rights in Water and Irrigation By-Laws 1933 (WA);

• Whether Western Australian legislation vesting and conferring ownership of minerals in the Crown extinguishes native title in those minerals;

• Whether mining leases and general purpose leases under the Mining Act extinguish native title;

• Whether any possible native title rights in respect of resources must be confined to resources which, on the evidence, have been customarily or traditionally used or whether those rights extend to minerals or petroleum;

• Whether the Argyle Diamond Project extinguished native title and whether the passing of the Argyle Diamond Mine Joint Venture Agreement Act infringes ss9 or 10 of the Racial Discrimination Act;

• Whether the creation of nature reserves or wildlife sanctuaries after 1975 offends the Racial Discrimination Act;

• Whether the public right to fish in inter-tidal waters is an 'other interest' within the meaning of s225(c) of the Native Title Act;

• Whether cultural knowledge may be made the subject of a determination of native title;

• Whether there should have been a determination of native title where there was no evidence of use or presence upon the parts of the land by Aborigines;

• Whether spiritual connection with land is sufficient to ground a determination of native title; and

• Whether the Full Court should have found that s47B(2) of the Native Title Act applied to certain areas.

A notice of contention has been filed by the second respondents.

P62/2000 (Appeal by the Northern Territory)

The appeal in matter P62/2000 relates to the area of land and waters claimed in the Northern Territory comprised the Keep River National Park, being land leased to and vested by statute in the Conservation Land Corporation and three relatively small freehold lots granted as Aboriginal community living areas to Aboriginal Corporations pursuant to s46(1A) of the Lands Acquisition Act 1978 (NT).

Justice Lee of the Federal Court determined that native title existed in relation to the majority of the claimed area including the whole of the Northern Territory area. There were five appeals and a cross appeal to the Full Court of the Federal Court. On appeal, the Full Court by majority, allowed the appeals in part, dismissed the cross appeal and set aside the determination of Lee J.

The issues said to arise in this appeal are:

• Whether any native title right to make decisions about the use and enjoyment of the Keep River National Park subsists; and

• Whether any native title subsists in areas of land within the Keep River National Park upon which the Parks and Wildlife Commission has constructed certain improvements.

P63/2000 (Appeal by Northern Territory Native Title Claimants)

The appeal in matter P63/2000 relates to an application for determination of native title in relation to an area in the East Kimberley of Western Australia and an area of the Northern Territory known as the Keep River National Park and three adjoining Aboriginal community living areas.

On 21 February 1997, the appellants were joined as persons claiming to hold native title in the Keep River National Park and the adjoining community living areas. Between 1893 and 1980, the land in the Northern Territory the subject of the claim was held pursuant to a series of pastoral leases, the first of which was granted in 1893. Between 1979 and 1985, 586 square kilometers of land were removed from the pastoral lease and transferred to the Conservation Land Corporation to form the Keep River National Park. At the date of the native title application the land was, and remains, subject to one of two leases granted by the Northern Territory to the Conservation Land Corporation.

The trial Judge held that neither the pastoral lease nor the leases to the Conservation Land Corporation had effected any extinguishment of native title.

The majority of the Full Court found that the pastoral leases had brought about partial extinguishment by abrogating native title rights to exclusively possess, occupy, use and enjoy the land.

The issues said to arise in the appeal are:

• Whether the exclusivity of particular incidents of native title are permanently extinguished by (a) the grant of pastoral leases containing a reservation in favour of the Aboriginal inhabitants; and (b) the vesting or grant of leases for the purposes of a national park pursuant to a statutory regime which protected traditional Aboriginal use of the land, where native title itself was not wholly extinguished;

• Whether the grant of a pastoral lease with a reservation demonstrates a clear and plain intention to extinguish all incidents of native title not referred to in the reservation and if so, what those incidents are;

• Whether the Full Court erred in failing to apply the statutory regime under the Native Title Act in relation to the possible extinguishing effects of pastoral leases and the statutory vesting and leases granted to the Conservation Land Corporation (NT), to the extent that those acts impair native title existing at the date of the grants;

• Whether the common law, in recognising native title, provides protection of that religious, spiritual or cultural knowledge of the native title holders which constitutes the essential connection between the native title holders and their land; and

• Whether it is correct, in a determination made under s225 of the Native Title Act to provide that unspecified common law public rights will prevail over native title rights and interests.

Full Court Matters

(Other than Applications for Special Leave to Appeal)

COMMENCING 27 MARCH 2001

YOUGARLA & ORS v. THE STATE OF WESTERN AUSTRALIA & ANOR (P60/2000)

Court Appealed from: Full Court of the Supreme Court of Western Australia

Date of Judgment: 11 November 1999

Date special leave granted: 4 August 2000

Section 70 of the Constitution Act 1889 (WA) provides, inter alia, "there shall be payable to Her Majesty, in every year, out of the Consolidated Revenue Fund, the sum of ,5,000 ... to be appropriated to the welfare of Aboriginal natives". Over a period of nearly 100 years, several Acts of Parliament have been passed to repeal s70 or to validate its repeal. The first such Act was the Aborigines Act 1897 (WA) and since then, other Acts, including the Aborigines Act 1905 (WA) have been passed. The appellants have contended that, despite this legislation, s70 has never been validly repealed. They claim that both of the Aborigines Acts referred to above failed to comply with essential matters of manner and form by not complying with s33 of The Australian Colonies Act No 1 1842 and s32 of The Australian Colonies Constitution Act No 2 1850. The appellants brought proceedings claiming declaratory orders.

The litigation has a long history. On 23 January 1995, the Supreme Court of Western Australia dismissed the appellants' action on the ground that they had not given notice or commenced their action within the time specified by the Crown Suits Act 1947 (WA). An appeal against this decision was dismissed. However, on 9 October 1996, the High Court allowed the appeal and ordered that the appeal to the Full Court be allowed and the original order striking out the statement of claim and dismissing the action should be set aside.

The matter was remitted to a single Judge of the Supreme Court of Western Australia and, on 11 December 1997, Murray J heard two preliminary issues: the first related to the construction of the various statutes and the defence relied upon by the respondents, (namely a challenge to the standing of the appellants to represent a class of persons described as "the Aboriginal inhabitants of Western Australia"); and the second, the defences based on the Crown Suits Act and s47A of the Limitation Act 1935 (WA). Murray J dismissed the appellants' claim finding the repeal of s70 of the Constitution Act to be valid and, further, that the appellants did not have standing to sue, their action being statute barred. The Full Court of the Supreme Court of Western Australia dismissed the appellant's appeal and it is from this decision that this appeal has been brought.

The High Court has listed the matter for hearing, at this stage, only in relation to the issues surrounding the validity of the asserted repeal of s70 of the Constitution Act 1889 (WA) the ground of appeal being:.

• Whether the Full Court erred in not holding that the purported repeal of s70 of the WA Constitution by the Aborigines Act 1987 (WA) and the Aborigines Act 1905 (WA) were ineffective because they failed to comply with s33 of The Australian Colonies Act No 1 1842 and s32 of The Australian Colonies Constitution Act No 2 1850.

The balance of the grounds of appeal (to be argued should the appellants be successful on the above ground) are:

• Whether the Full Court erred in finding that s6(1) of the Crown Suits Act 1947 (WA) operated to defeat the appellants' claim to declaratory relief;

• Whether the Full Court erred in finding that s47A of the Limitation Act 1935 (WA) operated to defeat the appellants' claim for declaratory relief;

• Whether the Full Court erred in finding that the appellants did not have standing to bring the proceedings to resolve whether s70 of the Constitution Act 1889 (WA) had been properly repealed so that the requirements of s70 are no longer in force;

• Whether the Full Court should have found that the appellants were representative of the class of Aboriginal people in the Western Australia who would have or could have benefited from compliance with s70.

The respondent has filed a notice of contention.

The Attorney-General of the Commonwealth has intervened pursuant to Constitutional notices issued by the respondent.

 

 

DERRICK v. CHEUNG (S151/2000)

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

Date of judgment: 11 October 1999

Date of grant of special leave: 16 June 2000

At about 9.00 am on Saturday, 17 December 1994, the respondent, then aged about 21 months, ran out of a yard onto the footpath and then between parked cars onto the roadway of Victoria Avenue, Chatswood. The road was busy at the time. The appellant had no opportunity to see the respondent until she appeared on the roadway in front of the appellant's car. The designated speed limit was 60 kms per hour, which was consistent with other traffic movement in the locality. The appellant braked and swerved, but the respondent was struck by the near-side headlight of the appellant's vehicle. She was seriously injured.

The trial judge found that the appellant's reaction time was reasonable, that she took appropriate action to avoid the accident and that the accident was unavoidable having regard to the speed of the car. However, his Honour held that the appellant was negligent in driving at a speed of 45-50 kms per hour saying that if the appellant's speed "had been slower by a few kilometres per hour, she would have been able to veer away past the respondent, or indeed stop in time to avoid the collision ... I do not think it would have been necessary for her to travel at 'crawling speed'."

The appellant appealed. The Court of Appeal, by majority, was not persuaded that there was a case for appellate intervention and dismissed the appeal. Davies AJA, in the minority, would have allowed the appeal holding that, as in Stocks v. Baldwin (1996) 24 MVR 416, the fundamental test was what a reasonable man would do by way of response to the risk attendant upon his driving. His Honour said: "The appellant was driving at a reasonable speed and in a responsible manner. The respondent, a toddler, should not have been on the roadway. She was not observable and it was not reasonably foreseeable that, unattended, she would attempt to cross the road."

The grounds of appeal include:

Their Honours erred:

• in failing to intervene in circumstances where the trial judge's decision was not supported by the evidence;

• in failing to overturn the trial judge's decision that the appellant had been negligent; and

• in upholding the trial judge's entitlement to make a value judgment rather than an analysis of what an appellant should reasonably have done having regard to all the surrounding circumstances.

DP v. COMMONWEALTH CENTRAL AUTHORITY (D12/2000)

Court Appealed from: Full Court of the Family Court Australia

Date of Judgment: 19 May 2000

Date special leave granted: 24 November 2000

This is an appeal against a decision of the Full Court of the Family Court of Australia upholding orders made by Mushin J on 23 December 1999 for the return of a five year child to Greece pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

The appellant mother is a naturalised Australian citizen and the child is an Australian citizen by descent. Both parents were born in Greece where they met and eventually married in 1993. The mother claims that following the birth of the child she and the father separated every couple of months with the child remaining in her care on each occasion. In particular, she claims they separated under the one roof in October 1996 and in July of 1998 she and the child moved out of the former matrimonial home and went to live at her parents' home.

In October 1998 the mother obtained an order from a Greek court at Serres granting her temporary title for the exertion of parental authorisation over the child together with an order for maintenance. Unbeknownst to the mother, the father obtained on 27 November 1998 an order from the court at Serres prohibiting the mother from leaving the country with the child.

In November 1998 the mother obtained a passport for the child and moved from Greece to Darwin on 1 December 1998.

Since birth, the child has displayed delayed development and other symptoms. The mother sought orthopaedic, paediatric, physiotherapy, and optometry and speech therapy treatment for the child in Greece, but it was not until the child came to Australia that he was diagnosed as autistic.

Upon application by the Commonwealth Central Authority to the Family Court of Australia pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth), it was found that the removal of the child from Greece on 1 December 1998 was wrongful and that there were no relevant exceptions under the regulations prohibiting the return of the child to Greece.

The mother appealed to the Full Court of the Family Court arguing that if the child was returned to Greece there would be a grave risk that he would be exposed to physical or psychological harm because of the failure of Greek doctors to diagnose or even recognise autism, compounded by the father's lack of recognition of the condition.

In dismissing the appeal, the Full Court held that it is only in rare circumstances that one of the exceptions in regulation 16(3) of the Family Law (Child Abduction Convention) Regulations 1986 will be made out. This regulation confers upon a Court the power to refuse to make an order for the return of a child in certain circumstances, which include where there is a grave risk that the return of the child to the country would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or where the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of Human Rights and fundamental freedom.

The grounds of appeal are:

• Whether the Full Court of the Family Court of Australia erred in law in finding that in the interpretation of regulation 16(3) of the Family Law (Child Abduction Convention) Regulations 1986, regulation 16(3)(b) and (d) are to be narrowly construed; and

• Whether the Full Court of the Family Court of Australia erred in law in finding that the evidence available to the learned trial judge established that the return of the child to Greece would not constitute a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation.

JLM v. DIRECTOR-GENERAL NSW DEPARTMENT OF COMMUNITY SERVICES (S291/2000)

Court appealed from: Full Court of the Family Court

Date of judgment: 30 November 2000

Date referred to Full Bench: 16 February 2001

These proceedings relate to an application brought by the respondent for the return of a child to Mexico, pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction and the Family Law (Child Abduction Convention) Regulations 1986.

The child was born in Mexico in February 1997. On 14 December 1998 the child was brought to Australia by the applicant and the child's father. On 4 January 1999 the father returned to Mexico, however the mother and child remained in Australia. On about 16 March 1999 the father sought the assistance of the Mexican Central Authority to effect the return of his child to Mexico.

On 3 December 1999 the Judicial Registrar in the Family Court made orders for the return of the child to Mexico. The applicant sought a review of those orders. Rose J upheld the application and discharged the orders of 3 December.

Before the primary Judge and the Full Court the applicant relied on the provisions of 16(3)(b) of the Regulations which provide that: "A court may refuse to make an order under subregulation (1) if a person opposing return establishes that: ... (b) there is a grave risk that the return of the child to the country in which he or she habitually resided immediately before the removal or retention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation". Rose J had held that the mother's threat to commit suicide if the child were returned to Mexico constituted a grave risk of psychological harm to the child within the meaning of this Regulation.

The Full Court found that it was not open to the trial judge to find that the very serious risk of suicide by the mother in the event of an order being made requiring the child to be returned to Mexico was such as to create a grave risk of psychological harm to the child which would place the child in an intolerable situation. Accordingly, the trial judge had erred in finding that the terms of Regulation 16(3)(b) had been made out. The appeal was allowed.

Questions of law said to justify the grant of special leave to appeal are:

• Whether the Full Court of the Family Court erred in its view of the ambit of reg.16(3)(b) of the Family Law (Child Abduction) Regulations; and

• Whether the Full Court erred in holding that the primary Judge should not have found that the return of the applicant's child to Mexico gave rise to a grave risk that the child would be exposed to physical or psychological harm or otherwise placed the child in an intolerable situation.

ADAM v. THE QUEEN (S139/2000)

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

Date of judgment: 23 July 1999

Date of grant of special leave: 30 May 2000

On 6 October 1998 the appellant was indicted for the murder of Constable David Carty on 18 April 1997 at Fairfield in NSW. Thaier Sako was a critical witness to the events which preceded and surrounded the death of Constable Carty. He was charged with murder and had initially declined to answer police questions. However, 8 weeks after the murder, he offered to participate in a police interview and he implicated the appellant.

During the trial, the Crown called Thaier Sako as a witness. The Crown did not know what evidence Thaier Sako would give and the defence objected to his evidence, so a voir dire was conducted before the trial judge. By that stage the murder charge against Thaier Sako had been dropped and he had been granted an indemnity by the Attorney-General. During the course of the voir dire it became clear that the witness, if called, would not adhere to statements he had made in a police interview. Indeed, if called he would give evidence which would harm the Crown case.

At the conclusion of the voir dire, leave was sought to cross-examine the witness under s38 of the Evidence Act 1995 (NSW) ("the Act") on a prior inconsistent statement. Over defence objection this was granted. During this examination the witness acknowledged statements made to the police, however he asserted that he was at that time simply reciting what he had been told by others.

On 24 December 1998 a jury found the appellant guilty of murder. He was sentenced to a total term of 28 years penal servitude.

On appeal, the appellant submitted that the trial judge erred in admitting the evidence of Thaier Sako. The acknowledged purpose of the Crown in calling Thaier Sako was so that evidence of the prior representations could go in as proof of the facts asserted. This course could not have been contemplated before the Evidence Act 1995. The interpretation of s60 of the Act was critical. The Court analysed the changes wrought by s60 which provides:

"The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation."

The appellant argued that consistent with the common law position identified in Blewitt v. The Queen (1988) 62 ALJR 503, the Crown should not be permitted to call a witness known to be hostile for the sole purpose of placing before the jury the contents of what would otherwise be an inadmissible out of court representation. However, the Court decided that s60 cut across the basis for the holding in Blewitt. The Court held that Thaier Sako's prior statement to the police was properly admitted as evidence of what he had done and what he had observed.

The appeal was dismissed.

The ground of appeal is:

• The Court of Criminal Appeal erred in holding that the trial judge did not err in admitting the evidence of the witness Thaier Sako.

* * * * * * * * *

Full Court Matters

(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).