Full Court Matters - October 2000

(Other than Applications for Special Leave to Appeal)

OCTOBER 2000

KRM v. THE QUEEN (M11/2000)

Court appealed from: Court of Appeal, Victoria

Date of judgment: 9 June 1999

Date special leave granted: 11 February 2000

The applicant was found guilty on 18 counts involving various sexual offences. The complainant was born in 1977 and when the complainant was about 2 years old the applicant married the complainant's mother. The alleged offences occurred at various times between 1984 and 1992. The complainant's mother gave evidence of having received complaints from her daughter about the sexual acts. She also gave evidence that in October 1992 the applicant had admitted the alleged behaviour after which he took an overdose of tablets and was hospitalised. The applicant gave evidence and denied any sexual activity with the complainant. He said he had taken some tablets to help overcome a back injury.

Counts 1 to 17 alleged 17 specific acts. Count 18 was a charge laid under s47A Crimes Act 1958 (Vic), namely of maintaining a sexual relationship with a child aged under 16 (between 5 August 1991 and 18 March 1992). The evidence consisted of unparticularised acts, the complainant stating that she was subjected to routine, repeated sexual acts during the six months immediately preceding her fifteenth birthday.

The applicant appealed against conviction. One of the grounds was whether the nature of the evidence led to establish count 18 was a matter which required the giving of a propensity warning. The applicant submitted that the trial judge should have directed the jury not to reason that because the applicant engaged in sexual conduct the subject matter of count 18, he was the kind of person who was likely to have committed the crime the subject of other counts. The Court of Appeal dismissed the appeal.

The grounds of appeal are:

• That the Victorian Court of Appeal erred in law in failing to hold that in every such case involving a presentment including a count pursuant to s47A of the Crimes Act 1958 (Vic) that there should have been a propensity direction; and

• That the Victorian Court of Appeal erred in law by holding that a propensity direction was not necessary in the particular circumstances of this case.

VETTER v. LAKE MACQUARIE CITY COUNCIL (S27/2000)

Court appealed from: NSW Supreme Court, Court of Appeal

Date of judgment: 16 April 1999

Date of grant of special leave: 11 February 2000

The appellant left her place of work and drove to her grandmother's house from where she later set out for home after dinner. This was a fortnightly occurrence. On the way home she was seriously injured in a car accident.

The appellant commenced proceedings in the Compensation Court under s10 of the Workers' Compensation Act 1987 ("the Act"). The trial judge found in her favour and awarded compensation. Relevantly, he held that at the time of injury the appellant was on a single journey from her place of employment to her place of abode.

The respondent appealed on questions of law relating to whether there were two journeys or one, whether (if it was a single journey) that journey was a daily or other periodic journey for the purposes of s10(3)(a) of the Act, whether the substantial deviation from and interruption to that single journey materially increased the risk of injury and whether the injury caused was partly or wholly the fault of the worker.

The Court of Appeal allowed the appeal setting aside the award for the appellant entered in the Compensation Court and ordering a new award for the respondent. Two of the three judges held that the journey was not a single journey but two journeys and that the trial judge had erred in law in not drawing this conclusion. Two of three judges held that the trial judge had erred in law in finding that the injury had not been caused by fault of the worker.

The grounds of appeal include:

• The Court of Appeal erred in concluding that the question of whether or not the appellant was injured in the course of a daily or other periodic journey between her place of employment and her place of abode was a question of law;

• The Court of Appeal erred in concluding that the appellant was injured in the course of a journey which was not a daily or other periodic journey between her place of employment and her place of abode; and

• The Court of Appeal erred in concluding that it was not open as a matter of law to find that the injury to the appellant occurred during a single journey from her place of employment to her place of abode.

KIMBERLY-CLARK AUSTRALIA PTY LIMITED v. ARICO TRADING INTERNATIONAL PTY LIMITED & ORS (S75/2000)

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

Date of judgment: 30 August 1999

Date of grant of special leave: 17 March 2000

The appellant, Kimberly-Clark Australia (KCA), brought a patent infringement suit for infringement of its patent by the first respondent, Arico, by the importation and sale of disposable nappies, which are marketed under the name "baby sitter". Arico sought, by cross claim, a declaration of invalidity and an order revoking the KCA patent. The patent is a convention patent, the priority date of which, in reliance on a United States patent, is 2 July 1984. The complete specification refers to an invention entitled "Diapers with Elasticised Side Pockets".

The judge at first instance found for KCA on its claim for infringement and dismissed Arico's cross claim for invalidity. Arico appealed against both these findings raising issues of insufficient description, fair basis, novelty, manner of manufacture and infringement.

The majority of the Full Federal Court allowed the appeal holding that the appeal could be decided by reference solely to s40(2)(a) of the Patents Act 1990 (Cth) ("the Act"). Section 40 of the Act is concerned with specifications. Section 40(2) provides as follows:

"A complete specification must:

a. describe the invention fully, including the best method known to the applicant of performing the invention; and

b. where it relates to an application for a standard patent – end with a claim or claims defining the invention."

The majority held that the complete specification did not "describe the invention fully, including the best method known to the appellant of performing the invention within the meaning of s40(2)(a) of the Act. The complete specification does not disclose to a person who may wish to make the invented product after the patent has expired how the product should be constructed."

Tamberlin J, dissenting, inter alia rejected the submission that the invention is not fully described in the specification and considered that there had been an infringement of the KCA patent by the Arico product. He found that the respondent had not made out the grounds for revocation of the patent and the appellant had made out its case of infringement.

The grounds of appeal include:

• The Court erred in ordering that Australian Patent No. 586633 ("the Patent") be revoked;

• The Court erred in declaring that the Patent was at all times invalid;

• The Court erred in otherwise making Orders 1, 2 and 3 made on 30 August 1999; and

• The Court erred in holding (per Wilcox and Branson JJ, Tamberlin J dissenting) that the complete specification of the patent did "not describe the invention fully, including the best method known to the appellant or performing the invention" within the meaning of s40(2)(a) of the Patents Act 1990 and in doing so applied a wrong test of "sufficiency".

STATE OF NEW SOUTH WALES v. TAYLOR (S46/2000)

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

Date of judgment: 2 June 1999

Date of grant of special leave: 17 March 2000

This appeal concerns the construction of s151A(5) of the Workers' Compensation Act 1987 ("the Act"), in particular the construction of sub-section 5(c).

The respondent was employed as a cleaner at Blacktown Girls High School. In October 1992 he injured his back lifting garbage bins. He elected to accept permanent loss compensation under the Act.

In October 1995 he commenced proceedings claiming damages in respect of the injury. The election that he had made stood in his way and was irrevocable except with the leave of the court. By s151A(5) if certain conditions were satisfied then, with the leave of the court, the respondent could revoke the election. The conditions which had to be satisfied included in sub-section 5(c): "At the time of the election there was no reasonable cause to believe that the further deterioration would occur."

In April 1997 the respondent applied by notice of motion for leave and for an order that the proceedings "be deemed to have been validly commenced" pursuant to the leave. On 3 June 1997 Master Greenwood granted leave to the respondent to revoke his election and to commence fresh proceedings.

The appellant appealed from the Master's decision. The judge at first instance allowed the appeal. The respondent then appealed to the Court of Appeal.

By majority the Court of Appeal allowed the appeal, holding that (per Giles JA): "taking the medical opinions together with the [respondent's] account of his condition, including of its continuing worsening ... the position is the same [as in Francis v. Dunlop]. There was no reasonable cause to believe that the further deterioration would occur, and para (c) is satisfied."

The ground of appeal is:

• The Court of Appeal erred in not finding that upon its proper construction s151A(5)(c) operates to preclude a worker from revoking his or her election not to sue for damages when a reasonable person in the position of the worker at the time the election is made would think that deterioration was either likely or was a real possibility as a consequence of the injury.

RE THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR; EX PARTE EPEABAKA (M22/1999)

Date of order referring application to Full Court: 29 March 2000

The applicant arrived in Australia in April 1996 and then applied for a protection visa. In September 1996 the delegate of the first respondent refused the application. The applicant then applied to the Refugee Review Tribunal ("the RRT") to review the delegate's decision. The Member constituting the RRT was Dr Rory Hudson, the second respondent. In January 1997 the RRT affirmed the decision of the delegate. The applicant sought judicial review in the Federal Court. Finkelstein J heard the matter in August 1997. Judgment was delivered on 10 December 1997, setting aside the decision of the RRT and remitting the matter to the RRT for reconsideration. The first respondent appealed to the Full Federal Court, which on 6 January 1999 allowed the appeal and set aside the orders made by Finkelstein J.

The applicant subsequently became aware that on 23 December 1998 Heerey J had delivered judgment in a matter (Besim Ferati v. Minister for Immigration and Multicultural Affairs) in which he had considered material which had been published by the second respondent on the internet on his "homepage". Part of the material on the homepage, which was published in October 1997, included the following:

"But while I would like to let into Australia at least 95% of the applicants who come to us, who are usually deserving cases and decent human beings even if they lie through their teeth (as they often do) in their desperation to find a better life, it's not as simple as that.";

"We work with dishonesty and corruption on all sides: ... applicants who weave webs of lies...".

Heerey J had held in Ferati that this material constituted a clear case of apprehended bias.

The applicant filed an application for prerogative relief by way of prohibition and certiorari, upon the ground that the decision taken by the second respondent in the case of the applicant would excite in the mind of a reasonable party or member of the public that it affected by apprehended bias. The application also sought an extension of time in respect of the application for certiorari.

On 29 March 2000 Hayne J directed that the application for prerogative relief (and the application for extension of time) be made by notice of motion to a Full Court.

 

 

AZZOPARDI v. THE QUEEN (S105/2000)

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

Date of judgment: 1 October 1998

Date of grant of special leave: 14 April 2000

The appellant was convicted at a trial before a judge and jury of the attempted murder of a man who had a sexual relationship with the appellant's wife, by arranging for him to be shot by others.

The victim, Mr Gauci, was leaving for work on 7 December 1994 at about 8.30 am. He saw two young men speaking to his wife near the front gate of his home. One of the two men leaned into the passenger seat of the white Laser parked in front of the gate and stood up holding a gun in his hand. He fired a shot which hit Mr Gauci in the abdomen. Mr Gauci fell backwards onto the ground, crying out for help. Two further shots were fired at him and hit him as he lay on the ground. He sustained severe injuries which left him a paraplegic. The person who did the shooting was Daniel Papalia. He gave evidence in support of the Crown case against the appellant. He said that he had been living at the home of Allan Knibbs. The appellant had come to the house and told Papalia that he wanted him to kill someone. The appellant made threats against Papalia's family which influenced Papalia to carry out the shooting.

The appellant was interviewed by police. He admitted knowing the victim, but repeatedly and vehemently denied any involvement in the shooting.

The appellant did not give evidence at his trial.

He appealed to the Court of Criminal Appeal (CCA) on several grounds including the ground that " the ... judge erred in commenting on the failure of the appellant to give evidence at his trial." Section 20(2) of the Evidence Act 1995 (NSW) provides relevantly as follows: "The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence charged." The CCA said that a comment of the kind permitted by s20(2) must be made in a way that is appropriate to the facts and circumstances of the individual case and that it must give effect to certain general principles. The Court found that although the directions could have been more simply and clearly expressed by the trial judge, they were adequate to the circumstances of the particular case. The appeal against conviction was dismissed.

The grounds of appeal are:

• The Court of Criminal Appeal erred in determining that the directions to the jury on the question of the appellant's failure to give evidence at his trial were adequate to meet the circumstances of the case; and

• The Court of Criminal Appeal erred in holding that the directions given to the jury did not breach the terms of the Evidence Act 1995 (NSW) s20.

This matter was stood over on 16 April 1999 awaiting the decision in RPS v. The Queen.

 

 

DAVIS v. THE QUEEN (S39/2000)

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

Date of judgment: 24 February 1999

This application raises questions regarding directions to the jury where an accused person elects not to give evidence and relies instead upon evidence of answers given to the police.

The applicant was charged with a number of offences alleged to have been committed on a child under 10 years. After a trial by jury in the District Court he was found guilty in relation to each count.

The Crown case was that the offences occurred on 4 May 1996 at the home of the applicant. The applicant had developed a friendship with the complainant's stepfather. On 4 May the applicant and his sons had visited the complainant's home. The applicant and the complainant's stepfather consumed a quantity of alcohol, watched television and had a meal. Later the complainant left with the applicant and his sons to spend the night at the applicant's home. The Crown case is that the applicant indecently assaulted the complainant as she sat on his lap while he was driving home. When they arrived at the applicant's home the applicant and the complainant and his two sons all went to his bedroom to watch television. The boys sat on the floor. The applicant lay on the bed and the complainant sat at the end of the bed. The applicant told the complainant to lie down. The complainant alleged that the applicant removed her clothes and had sexual intercourse with her on the bed.

The applicant elected not to give evidence and the trial judge gave lengthy directions to the jury in respect of the applicant's failure to give evidence.

The Court of Criminal Appeal held that although the trial judge should, ordinarily in giving directions to the jury concerning the failure of the accused to give evidence, refer to the possibility that the accused may have reasons for remaining silent, the rule is not expressed in absolute terms. Although the trial judge should have referred to that possibility, the applicant did not suffer any miscarriage of justice by reason of the omission. Counsel for the applicant had not taken the point at the trial. The Court also found that the fact that the applicant had participated in an ERISP (Electronically Recorded Interview with Suspected Person) does not necessarily militate against giving a Weissensteiner direction.

The trial and the appeal to the Court of Criminal Appeal were heard before the decision in RPS v. The Queen.

The question of law said to justify the grant of special leave to appeal is:

• Were the directions given by the trial judge to the jury in respect of the failure of the applicant to give evidence in error?

LIFTRONIC PTY LIMITED v. UNVER (S102/2000)

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

Date of judgment: 29 July 1999

Date of grant of special leave: 14 April 2000

This appeal concerns the appropriateness of an Appeal Court disturbing the assessment of a jury as to the measure of apportionment for contributory negligence where no new facts were before the Appeal Court and no complaint made in respect of the directions given by the trial judge to the jury.

The respondent brought proceedings for damages for personal injury in the District Court in respect of a work related accident which occurred on 20 February 1995. He and an apprentice, Mr Dawes, were instructed by a foreman to clean and paint some steel rails weighing approximately 110 kilograms each. The system of work adopted, apparently in accordance with the foreman's instructions, involved moving each rail one at a time from where it was lying in a bundle and placing it onto two pieces of wood which lay upon the floor some two metres away. When the rail was in this position the two men could clean and paint it. The rails were lifted and moved by using a lifting hook, each rail being lifted a short height and then lowered onto the pieces of wood. Explicit instructions were given to the respondent that when lifting, he was to keep his back straight and bend his knees.

The respondent became fed up with painting the rails whilst bending over, so he chose to modify the system of work designed by the appellant. He wanted to lift the rails to a better height so that he could paint them without bending over. He found something described as a scaffold frame and placed this in an appropriate position. He and Mr Dawes then manually (rather than using the lifting hooks) lifted the next rail onto the scaffold frame so that the rail then stood about 2 feet above floor level. Within probably 5 to 10 minutes of adopting this new procedure, the respondent hurt his back lifting a rail.

On the trial of his action in negligence for damages the respondent was awarded compensation by a jury, however this was reduced by 60% on the grounds of contributory negligence.

The respondent appealed from the decision of the trial judge, allowing the question of contributory negligence to go to the jury, and from the jury's assessment that the respondent should bear 60% of the responsibility for the injury. The appeal was successful. The majority found the jury's assessment of 60% perverse in the circumstances and substituted a finding of a 20% reduction in damages for the respondent's contributory negligence. Meagher J dissented.

The ground of appeal is:

• The Court of Appeal erred in substituting the assessment of the respondent's contributory negligence assessed by the jury at 60% with an assessment of 20%.

RE THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; EX PARTE DEVASAHAYAM & ANOR (M77/1998)

Date of order referring matter to Full Court: 29 March 2000

The applicants are Tamil nationals of Sri Lanka, who arrived in Australia in 1996. They applied for protection visas, which in January 1997 the delegate of the Minister refused. On 28 January a migration agent acting for the applicants sent an application for review of the delegate's decision to the Refugee Review Tribunal ("the RRT") by post. The application was not received by the RRT. The migration agent then made a submission to the RRT regarding the posting of the application. The RRT held that as the review application was not received within the mandatory time period specified in the Migration Regulations, the application for review was not valid and it had no jurisdiction.

The applicants filed an application for judicial review of the RRT determination, but later withdrew it. The applicants instead sought the intervention of the respondent ("the Minister") under s417 of the Migration Act 1958 (Cth) ("the Act"), asking him to exercise his discretion to make a more favourable decision. They also asked the Minister under s48B of the Act to allow them to make a further application for a protection visa. By letter of 4 September 1997 the Minister advised that he had no power to exercise any discretion under s417 because the decisions of the delegate had not been reviewed by the RRT. On 15 July 1998, the Minister advised that he had decided not to consider exercising his powers under s48B. The applicants again applied to the Minister under s417 of the Act. This application was refused on 27 August 1998 on the same ground as the original s417 application.

The applicants then filed application for prerogative relief. They also sought extensions of time for the making of such applications. The grounds upon which the applicants rely include:

• The respondent failed properly to exercise his jurisdiction in that the delegate breached the rules of natural justice or procedural fairness or alternatively failed to take relevant considerations into account, in that in making the decision, she failed to make all due and proper inquiries as to the truth of the claims of the prosecutors and in particular, failed to utilise mechanisms available within the Department and the Government whereby the prosecutors' claims as to the current situation in Sri Lanka and the impact of that situation upon them were on the date to be returned there, could have been readily assessed;

• The respondent exceeded his jurisdiction or failed properly to exercise his jurisdiction under s48B(1) of the Act in that he made the decision:

(a) not personally, as required by s48B(2), but in substance in effect through a person to whom he had delegated the matter, namely an officer of his department;

(b) without giving the matter his personal attention as required by s48B(2) but by acting upon, without independent and proper consideration, the recommendation or advice of an officer of his Department; and

(c) without reference to relevant considerations including the intention of Parliament that applicants for protection visas should have an opportunity for review on the merits by the Refugee Review Tribunal, and also that it was through no fault of the prosecutors that they were unable to obtain review by the Refugee Review Tribunal of the decision of the respondent's delegate.

On 29 March 2000 Hayne J directed that the application be made by notice of motion to the Full Court.

 

Full Court Matters
(Other than Applications for Special Leave to Appeal)

PERTH CIRCUIT SITTINGS

OCTOBER 2000

McDADE v. THE UNITED KINGDOM & ANOR (P54/2000)

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

Date of Judgment: 23 December 1999

Date of Grant of Special Leave: 16 June 2000

The appellant with his wife and two young children emigrated from the United Kingdom to Australia in July 1991. A warrant for the arrest of the appellant was issued in the United Kingdom on 9 August 1994. The offences with which the appellant was charged under the Criminal Law Act 1977 (UK), related to stealing and to dishonestly obtaining property and cash.

The British High Commission issued a Diplomatic Note on 9 September 1994, seeking his extradition to the United Kingdom from Australia. On 20 April 1997, the Attorney-General of the Commonwealth of Australia gave a Notice under s16 of the Extradition Act 1988 (Cth) ("the Act") stating that the request had been received, upon which a magistrate in Perth issued a warrant for the appellant's arrest.

Ultimately the second respondent, a magistrate of the Court of Petty Sessions in Perth, determined that the appellant was eligible for surrender in relation to 18 of the 23 offences relied on by the United Kingdom.

A question arose before the magistrate as to whether the statement of Detective Inspector Cook of the London Metropolitan Police Service satisfied the requirements of s19(3)(c) (ii) of the Act. This subsection requires "a duly authenticated statement in writing setting out the conduct constituting the offence". The magistrate was so satisfied and upon an application for an order for review, the primary Judge of the Federal Court was also so satisfied. The appellant then appealed to the Full Court of the Federal Court asserting that the statement failed to comply with s19(3)(c)(ii) of the Act because:

1. It included facts or conduct which went beyond what was necessary to establish the offences, or which were irrelevant to the offences and, in consequence, made it impossible to ensure that the double criminality and specialty requirements of the Act were not breached;

2. The statement failed to segregate or separately set out the acts or omissions by virtue of which each offence was alleged to have been committed; and

3. The statement was not self sufficient in that it was incapable of standing on its own without reference to other documents.

When the matter came on for hearing before the Full Court, the appellant was unrepresented and was refused an adjournment. The Full Court dismissed the appellant's appeal.

The grounds of appeal are:

• Whether the Full Court erred in law in determining that in extradition proceedings, a statement of conduct constituting a foreign offence, required by s19(3)(c)(ii) of the Extradition Act 1988 (Cth) can be widely drawn, so as to include conduct beyond that necessary to establish the foreign offence; including additional conduct that may affect the determination of the principles of double criminality and specialty;

• Whether the Full Court erred in law in holding that, pursuant to s19(3)(c)(ii) of the Act, a separate statement of conduct is not required in relation to each extradition offence;

• Whether the Full Court erred in law in holding that the statement of conduct produced in this case sufficiently set out and delineated the conduct constituting each offence and was a valid and sufficient statement for the purposes of the Act;

• Whether the Full Court erred in law in holding that, for the purposes of s19(3)(c)(ii) of the Act, a statement of conduct can validly incorporate material by reference to other documents; and

• Whether the Full Court erred in law in refusing an adjournment and whether this gave rise to a denial of natural justice to the appellant.

ROSENBERG v. PERCIVAL (P44/2000)

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

Date of Judgment: 25 May 1999

Date of Grant of Special Leave: 14 April 2000

Due to an underdeveloped lower jaw, which gave rise to a malocclusion, the respondent underwent a surgical procedure known as a sagittal split osteotomy. This was performed by the appellant on 6 December 1993. Following that operation, the respondent underwent a further procedure carried out by the appellant on 25 February 1994 in an effort to mobilise the appellant's temporomandibular joints.

The respondent sued the appellant claiming that, primarily as a result of the operation, her life had been badly affected due to pain and other maladies which she had suffered since the operation. She claimed that the appellant had not warned her of all the possible complications that could arise from the surgery and that the appellant had been negligent in that prior to the operation he had failed to take note of minor complaints which she had related in regard to her pre operative condition. Her case was that there had not been informed consent on her part.

At first instance the trial Judge found that the appellant had no duty to warn the respondent of the risk of the condition (known as temporomandibular "TMJ" problems) that the respondent developed after the osteotomy. He further found that, even if the respondent had been warned of the slight possibility of complications, she would have proceeded in any event. He also found the respondent to be a generally unreliable witness.

On appeal to the Full Court, the respondent was successful, the Full Court finding that the evidence disclosed there was a risk (of TMJ problems) which was generally known to the appellant's profession, and this gave rise to a duty to warn which the appellant had negligently failed to do. The Full Court also overturned the trial Judge's finding that, even if warned of the risks, the respondent would have undergone the osteotomy procedure.

The grounds of appeal are:

• Whether the Full Court erred in holding that once there was a risk involved in dental treatment which is generally known to the dental profession, there is a duty to warn a patient of that risk;

• Whether the Full Court erred in law in failing to consider or to give reasoned consideration to the specific complication suffered by the patient, the effects thereof, whether and why the risk of that complication was material and, if material, the nature of the warning required in the particular circumstances of the case;

• Whether the Full Court erred in law in failing to consider or give reasoned consideration to the appellant's case that the post operative condition, the subject of the respondent's claim, was not a risk of which he knew or ought to have known at the material time; and

• Whether the Full Court erred in law in having no proper basis or no properly reasoned basis for overturning the learned trial Judge's finding that, had the respondent been warned of the relevant risk, she would have proceeded with the surgery in any event.

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v. JIA (P43/2000);

RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; EX PARTE JIA (P77/2000)

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

Date of Judgment: 15 July 1999

The respondent is a Chinese National. In December 1993, whilst residing in Australia on a Special Entry Permit, the respondent was convicted of assault occasioning bodily harm, deprivation of liberty, threatening to unlawfully harm and sexually penetrating a woman with whom he had had a previous relationship. He was sentenced to imprisonment. The Western Australian Court of Criminal Appeal dismissed the respondent's appeal against his convictions in August 1995.

The current application arises out of a decision of the appellant not to grant the respondent a transitional (permanent) visa on the basis that he was not of good character.

Following the Administrative Appeals Tribunal decision on 14 March 1997, which overturned the appellant's initial refusal, the appellant made comments in the media, where he indicated that he did not believe that a person was of good character if they had committed significant criminal offences involving penal servitude. The visa was subsequently issued and then cancelled on 10 June 1997 pursuant to the appellant's discretion under section 501 of the Migration Act 1958 (Cth).

The respondent applied to the Federal Court for an order for review, which was dismissed on 1 July 1998. The respondent appealed from the decision to the Full Court who allowed the appeal and set aside the appellant's decision to cancel the respondent's visa. The appeal was allowed by a majority on the ground that the decision of the appellant, that the respondent was not of good character, was induced or affected by actual bias.

The grounds of appeal are:

• Whether the majority of the Full Court erred in law in holding that the decision made by the appellant on 10 June 1997 to cancel the respondent's visa under section 501 of the Migration Act 1958 (Cth) and to declare him to be an excluded person, in accordance with section 502(1) of the Act were affected by actual bias;

• Whether the majority of the Full Court erred in drawing inferences from all the relevant circumstances that the appellant had prejudged the issue and whether the respondent was a person not of good character such that, at the time of making his decision on 10 June 1997, the appellant "had a closed mind" or "was precluded from consideration of all the relevant circumstances in relation to the respondent"; and

• Whether the majority of the Full Court erred in law in, having found that the primary Judge had correctly stated the test for actual bias, failed to hold that it was open to the primary Judge to be satisfied that, at the time of the appellant's decision, he had not so pre judged the issue of the respondent's character that his view was not open to change by the relevant facts falling for consideration.

In relation to P77/2000:

On 5 October 2000, Kirby J ordered that applications for prerogative relief filed by Mr Jia be returned on the day of the hearing of the appeals with which they are connected. The applicant has filed a notice of motion seeking a writ of prohibition against the Minister prohibiting him from proceeding to act on the decision that the applicant was not of good character and to issue a certificate of exclusion and prohibiting him from removing the applicant. A writ of certiorari is also sought to remove into this Court to be quashed the decision of the Minister.

The grounds said to justify prerogative relief are:

• The respondent failed to accord the applicant natural justice in making his decision as it was induced or affected by bias; or, in the alternative,

• That such decisions were made in circumstances where there was a reasonable apprehension of bias by the respondent against the applicant.

MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS v. WHITE (P47/2000)

RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS;

EX PARTE WHITE (P81/2000)

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

Date of Judgment: 8 March 2000

Date of Grant of Special Leave: 5 September 2000

The respondent in this appeal and the applicant for prerogative relief was formerly known as Leslie Edward Milton Towers, a citizen of New Zealand, who first arrived in Australia on 7 June 1987. The respondent was granted a special category visa on 31 January 1992. The respondent had committed a number of criminal offences in New Zealand before his arrival in Australia and committed further offences in Australia between 1988 and 1989. During a return trip to New Zealand, the respondent was convicted of a further offence. On 17 March 1994, the respondent was convicted of manslaughter in the Supreme Court of the Northern Territory and was sentenced to 4 years' imprisonment. He was also convicted of three counts of committing an aggravated dangerous act and was sentenced to 2 years' imprisonment on each count, with sentences to be served concurrently. The respondent was released from prison on 29 June 1994.

On 21 February 1997, the respondent pleaded guilty to two counts of dangerous driving causing bodily harm and grievous bodily harm, one count of driving under the influence of alcohol, one count of having no motor driver's licence and one count of dangerous driving causing grievous bodily harm. The respondent received 2 suspended sentences, a disqualification and a fine.

On 9 January 1998, a delegate of the appellant made a decision that, pursuant to ss200 and 201 of the Migration Act 1958 (Cth) ("the Act"), the respondent be deported. The deportable offences upon which the decision was based were the manslaughter convictions and the convictions on three counts of committing aggravated dangerous acts.

On 28 January 1998, the respondent applied to the Administrative Appeals Tribunal ("the Tribunal") for a review of the decision that he be deported. On 21 May 1998 the Tribunal set aside the deportation order and remitted the matter to the appellant with a direction that the respondent not be deported. The appellant did not appeal from that decision.

By letter to the respondent dated 13 August 1998, the Director of the Character Section of the Department of Immigration and Multicultural Affairs ("the Department") advised him that his visa might be liable to cancellation under s501 of the Act. The respondent was invited to make comments before consideration was given by the appellant whether to cancel the respondent's visa and declare him an excluded person under s502. The respondent made submissions by letter dated 22 August 1998. On 14 October 1998, a Minute was forwarded to the appellant seeking his decision on whether to cancel the respondent's visa and declare him an excluded person. The appellant made decisions on that date to cancel the respondent's visa on the ground that he was not of good character. A Notice of Visa Cancellation was served on the respondent and he was detained by officers of the Department under s189 of the Act.

The respondent applied to the Federal Court for a review of the appellant's decision on the basis that the decision of the appellant was induced or affected by fraud or by actual bias. After obtaining legal assistance, the application was further amended by deleting the existing 2 grounds of review and substituting various other grounds. It was not a ground of review of the application as further amended that the decisions were induced or affected by actual bias. At the time that the application was further amended so as to delete the ground of review that the appellant's decision was induced or affected by actual bias, counsel of the respondent was aware of the decision of Justice French in Jia Le Geng v. Minister for Immigration and Multicultural Affairs (1998) 34 FCR 87 and was aware, or should have been aware, of the relevant facts upon which a claim of actual bias against the Minister in that case was based.

The application was heard before French J on 18 May 1999. Prior to the hearing, counsel for the respondent was aware that there had been an appeal from the judgment of French J in Jia and that the appeal had been heard and judgment was reserved. On 21 May 1999, French J dismissed the application with costs. The respondent appealed.

On 15 July 1999, the Full Court of the Federal Court handed down its reserved decision in the appeal from the judgment of French J in Jia. The appeal was allowed by a majority on the ground that the decision of the appellant in that case to cancel Mr Jia's visa on the ground that he was not of good character, was induced or affected by actual bias within the meaning of s476(1)(f) of the Act.

In his submissions to the Full Court, the respondent referred to the decision of the Full Federal Court in Jia and stated that the Court had already found the Minister to be actually biased toward persons with convictions for serious crimes and that the respondent's circumstances are, in effect, similar to those of Mr Jia and therefore the Court should make a similar finding of actual bias in the Minister's decision to remove the respondent. In a decision dated 22 October 2000, the Court found, inter alia, that the fact that criminal sentencing Judge's remarks were not included in the submissions to the Minister provided no basis for a finding that the appellant's decisions were induced or affected by actual bias. In relation to the respondent's reliance on decision of the Full Court in Jia, the Full Court ordered that the appeal be adjourned and that the parties file and serve any affidavits upon which they might wish to rely. A further hearing of the appeal took place on 24 November 1999.

On 8 March 2000, the Full Court of the Federal Court handed down its decision, allowing the respondent's appeal and setting aside the appellant's decision of 14 October 1998 that he was satisfied that the respondent was not of good character and that his visa be cancelled. The Court found that the same inference should be drawn that the majority of the Full Court drew in Jia as to the Minister's state of mind on 10 June 1997, which was that he was incapable of persuasion; that the Tribunal's line of reasoning was acceptable when he came to decide whether Mr Jia was of good character. It further found that it should be inferred that, continuously between 10 June 1997 and 14 October 1998, the Minister's mind was closed to the possibility of a decision favourable to a person in the respondent's circumstances, by reason of his perception that a matter of sound policy or sound administration rather than law, a person who had been sentenced to no more than 1 year's imprisonment could not be of good character.

In relation to P74/2000, the grounds of appeal are:

• Whether the Full Court of the Federal Court of Australia erred in holding that the decision made by the appellant on 14 October 1998, that he was satisfied that the respondent was not of good character, and that the respondent's visa be cancelled, was induced or affected by actual bias;

• Whether the Court erred in drawing the inference on the same facts as were before the Full Court in Jia that, as at 10 June 1997, the appellant had prejudged the issue of whether Jia was a person not of good character;

• Whether the Court erred in drawing the inference that at the time of making his decision on 14 October 1998, the appellant had prejudged the issue of whether the respondent was a person not of good character; and

• Whether the Court erred in allowing the respondent to amend his original application and his notice of appeal and to adduce further evidence so as to enable the respondent to argue that the appellant's decision to cancel his visa and to declare him an excluded person were induced or affected by actual bias.

In relation to P81/2000:

On 5 October 2000, Kirby J ordered that the applications for prerogative relief by Mr White be returned before the High Court in Perth on the day of the hearing of the appeals with which the are connected.

The notice of motion of the applicant seeks a writ of prohibition directed to the respondent prohibiting him from proceeding to act on the decisions made by the Minister on 14 October 1998 by taking the applicant into detention in Australia or by removing him from Australia. The notice of motion also seeks a writ of certiorari directed to the respondent removing into this Court to be quashed the decisions made on 14 October 1998. The notice of motion further seeks that the respondent be restrained from removing the applicant from Australia until further order.

The grounds said to justify prerogative relief are:

• That the respondent failed to accord the applicant natural justice in making the decision that the applicant was not of good character and that a certificate of exclusion be issued; and

• That both of those decisions were induced or affected by the bias of the respondent towards the applicant or, in the alternative, that such decisions were made in circumstances where there was a reasonable apprehension of bias by the respondent against the applicant.

CLAY v. CLAY & ORS (P52/2000)

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

Date of Judgment: 28 July 1999

Date of Grant of Special Leave: 16 June 2000

The appellant (Mrs Clay), is the widow of the late James Clay (Mr Clay) who died in 1970. The first respondents are the three children of Mr Clay's first marriage, Mrs Clay becoming their stepmother upon her marriage to Mr Clay. The first respondents ("the children"), were all born in the 1950's. Mr and Mrs Clay also had a child of their own, born in 1964 ("the fourth child") who is not a party to these proceedings.

Mr Clay disappeared in November 1970 whilst flying a light aeroplane in New South Wales. The wreckage was not discovered until some years after his death and, until October 1972, his affairs were managed by trustees after which the administration of the estate commenced and probate was granted.

Immediately prior to Mr Clay's death, he, Mrs Clay and all four children resided together as a family at a property at 24 Queenslea Drive, Claremont in Western Australia ("the Claremont property"). The property was owned by Mr Clay and had been his family home during the latter years of his first marriage.

Apart from a period from 1971 to 1973 Mrs Clay lived with the 4 children in the Claremont property. In due course all of the children left home, leaving Mrs Clay to reside there where she remained until the conclusion of these proceedings in the Supreme Court.

David Speed was appointed a trustee and executor under the terms of Mr Clay's will. By the terms of the will, the entire estate vested in Mr Speed with the power of sale and conversion with payout to be postponed until the estate vested in all four children on their attaining the age of 25 years. There was a discretionary power of advancement in favour of Mrs Clay during her life by which up to $20,000 a year might be paid to her out of income or corpus of the estate.

In March 1973, Mr Speed executed an instrument of transfer in respect of the Claremont property to Mrs Clay for the consideration of $45,000. Mrs Clay paid this sum from her own money. It is this transaction which has given rise to this litigation. It was the children's case that as at the date of transfer the true market value of the Claremont property was in the range of $60-65,000, that the sale was in breach of Mr Speed's duty as a trustee, and that Mrs Clay was a party to the breach by Mr Speed.

It was also the children's case that, as Mrs Clay was their legal guardian, she stood in a fiduciary relationship to them and to the fourth child and that this acquisition was in breach of her duties as a guardian. Alternatively, it was alleged that she intermeddled in the affairs of the estate thereby herself becoming a trustee and executor de son tort in which capacity it was alleged she owed fiduciary obligations to the children and the fourth child as residuary beneficiaries.

The current proceedings did not commence until 1994 with the children seeking relief by way of declaration of constructive or express trust. Issues arose regarding whether the action was limitation barred. The Claremont property is now of significant value.

The appellant was successful at trial but unsuccessful upon the children's appeal to the Full Court. The Full Court made orders with effect from 1 May 1973 (the date of settlement of the sale of the property), to the effect that the appellant holds or has held the property on trust as to one fourth share to each of the children save for the purchase price paid by her together with interest and some allowance for improvements effected by her over the period of her residence in the property. It was ordered that the property be sold and the net proceeds distributed amongst the parties in those shares.

The Full Court held that the appellant had breached her fiduciary duty as a guardian, notwithstanding the finding by the trial Judge that the appellant had paid a sum determined by the Valuer-General as being the true value of the property at the time. The Full Court concluded that the trustee did not have a defence under s50 of the Trustees Act 1963 (WA) and also held that the children's claim was not statute barred.

The grounds of appeal are:

• Whether the Full Court erred in law in concluding that by acquiring the property from David Speed, the appellant had placed herself in a position whereby there was a sufficient risk that her personal interest in acquiring and retaining the property might impede the faithful performance of her duty as guardian so as to constitute the acquisition of the property a breach of her fiduciary duty as guardian;

• Whether the Full Court erred in law in concluding that the trustee did not consult a valuer within the meaning of s50(1) of the Trustees Act 1962 (WA) and in consequence, erred in failing to conclude that the valuation of the Valuer-General was binding on all persons beneficially interested under the trust in the will;

• Whether the Full Court erred in law in concluding that the respondents' claim was not statute barred by reason of s25(2) of the Supreme Court Act 1935 (WA) or s47(1) of the Limitation Act 1935 (WA), and whether, in particular it erred in concluding that there was an express trust constituted by s10 of the Guardianship of Children Act 1972 (WA);

• Whether the Full Court erred in law in failing to give any reasons to support its conclusion that an express trust was constituted by s10 of the Guardianship of Children Act 1972 (WA);

• Whether, in the alternative, if the Full Court was not in error in finding that the appellant was in breach of her fiduciary duty as guardian, the Full Court erred in law by failing to consider whether there was an appropriate remedy which fell short of the imposition of a constructive trust; and

• Whether, in the alternative, if the Full Court did consider whether there was an appropriate remedy which fell short of the imposition of a constructive trust, it erred in law in failing to provide any reasons for reaching such a conclusion.

After the grant of special leave to appeal, the appellant filed a notice of motion seeking to expand the grounds of appeal to include:

• Whether, in acquiring the property, the appellant owed no fiduciary duty to the second named first respondent, he having attained his majority on 7 December 1972.

The first-named first respondent and the first-named second respondent have filed a notice of cross appeal and notice of contention, as have the second and third-named first respondents.