(Other than Applications for Special Leave to Appeal)

COMMENCING 4 SEPTEMBER 2001

RE McBAIN; EX PARTE THE AUSTRALIAN CATHOLIC BISHOPS CONFERENCE AND THE AUSTRALIAN EPISCOPAL CONFERENCE OF THE ROMAN CATHOLIC CHURCH (C22/2000)

RE McBAIN; EX PARTE THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA (AT THE RELATION OF THE AUSTRALIAN EPISCOPAL CONFERENCE OF THE ROMAN CATHOLIC CHURCH (C6/2001)

These proceedings arise out the decision of Justice Sundberg of the Federal Court of Australia wherein the second respondent, Dr McBain, sought a declaration that s8 of the Infertility Treatment Act 1995 (Vic) ("the ITA") was invalid on the basis that it was inconsistent with s22 of the Sex Discrimination Act 1984 (Cth) ("the SDA"). Section 8 precluded in vitro fertilisation treatment to be provided to the fourth respondent in the Federal Court, who is not a party to this application, on the basis that she was single. Section 8(1) provides:

"A woman who undergoes a treatment procedure must –

(a) be married and living with her husband on a genuine domestic basis; or

(b) be living with a man in a de facto relationship."

 

Section 22 of the SDA provides:

(1) It is unlawful for a person who, whether for payment of not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, marital status, pregnancy or potential pregnancy:

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b) in the terms or conditions on which the firstmentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c) in the matter in which the firstmentioned person provides the other person with those goods or services.

 

Justice Sundberg found that s8 of the ITA provides "that a woman's marital status, namely her status as a married woman or one living in a de facto relationship, is an essential requirement for availability of a treatment procedure. Section 22 of the SDA makes it unlawful for a person to refuse to provide services to another on the ground of the latter's marital status." Accordingly, his Honour found that the sections were directly inconsistent and that the Victorian Act was therefore inoperable by reason of s109 of the Constitution.

The Australian Catholic Bishops Conference and the Australian Episcopal Conference of the Roman Catholic Church, who were appointed as amici curiae in the Federal Court, brought an action within the original jurisdiction of the High Court pursuant to s75(v) of the Constitution. They were directed by Justice Callinan to proceed to the Full Court by way of notice of motion.

In the intervening period between the direction to proceed before the Full Court and the substantive hearing, leave to intervene has been granted to the following organisations: The Women's Electoral Lobby (Vic) Inc, The Australian Family Association and the Human Rights and Equal Opportunity Commission.

On 10 August 2001, the Attorney-General of the Commonwealth issued a fiat (which grants standing to the recipient) to the Australian Episcopal Conference of the Roman Catholic Church. The fiat is limited to an application for relief on the basis that the SDA does not, as a matter of construction, apply to infertility treatment the subject of the ITA and is not inconsistent with the ITA for the purpose of s109 of the Constitution. On the basis of this fiat, the Australian Episcopal Conference of the Roman Catholic Church commenced separate proceedings, C6/2001.

In matter number C22/2000, the applicants seek writs of prohibition, mandamus and certiorari against Justice Sundberg and Dr McBain. The applicants seek declarations that:

• section 8 of the ITA is not inconsistent with s22 of the SDA;

• all sections of the ITA set out in the schedule to the reasons for judgment of Justice Sundberg are not inconsistent, pursuant to s109 of the Constitution, with s22 of the SDA;

• to the extent that s22(1) of the SDA would apply to the treatment procedure referred to in s8 of the ITA, s22(1) is not a valid law of the Commonwealth;

• section 32 of the SDA applies to services provided pursuant to the ITA;

• section 32 of the SDA applies to services provided pursuant to the ITA in circumstances where the treatment procedure involves the removal of an ovum (or ova) from a single woman, the fertilisation of the ovum (or ova) with donor sperm in vitro, and the transfer of the embryo into the single woman;

• section 7B of the SDA otherwise applies to s8, and all other sections, of the ITA set out in the schedule to the reasons for judgment of Justice Sundberg;

• infertility is not a ground of discrimination under the SDA;

• infertility is not a ground of discrimination under the Convention on the Elimination of All Forms of Discrimination Against Women 1979;

• the Constitution provides no head of power for the Commonwealth regulation of in vitro fertilisation procedures and s22 of the SDA cannot be used to regulate the provision of such procedures;

• the Guiding Principles in s5 of the TA are paramount in the interpretation of that Act and s8 of the ITA must be read subject to those Principles;

• the domestic law of Australia, and international law, provides that the best interests of the child shall be paramount and both the ITA and SDA must be read subject to this principle of law;

• the domestic law of Australia, and international law, provides that the family, not a single person, is the fundamental group of society and the ITA and SDEA must be interpreted subject to this principle of law; and

• the domestic law of Australia, and international law, provides that a child has the right to be born into a family and to be raised by its mother and father, and to know it parents and the ITA and SDA must be interpreted subject to this principle of law.

In matter C6/2001, the applicants seek writs of prohibition, mandamus and certiorari against Justice Sundberg and Dr McBain for the following declarations:

• section 8 of the ITA is not inconsistent with s22 of the SDA;

• all sections of the ITA set out in the schedule to the reasons for judgment of Justice Sundberg are not inconsistent, pursuant to s109 of the Constitution, with s22 of the SDA;

• section 32 of the SDA applies to services provided pursuant to the ITA; and

• section 32 of the SDA applies to services provided pursuant to the ITA in circumstances where the treatment procedure involves the removal of an ovum (or ova) from a single woman, the fertilisation of the ovum (or ova) with donor sperm in vitro, and the transfer of the embryo into the single woman.

ROYAL BOTANIC GARDENS AND DOMAIN TRUST v. SOUTH SYDNEY CITY COUNCIL (S263/2000)

Court appealed from: New South Wales Court of Appeal

Date of judgment: 22 December 1999 and 31 August 2000

Date of grant of special leave: 13 October 2000

The central issue in this appeal is the construction and interpretation of clause 4(b) of a lease dated 15 May 1976 between the Trustees of the Domain ("the lessor") and the Sydney City Council ("the lessee"). The present appellant and respondent are the respective successors in title to the original parties to the lease.

Clause 4(b) of the lease confers a power on the lessor every three years to determine the yearly rent to be payable by the lessee during the following three year period. That grant of power is followed by a number of provisos. The parties are in dispute about the rent payable.

In 1955 the lessee proposed the construction of a car parking station in the Sydney Domain. There followed negotiations involving the lessee, the Department of Agriculture and the lessor. In these negotiations it was contemplated that there would be a fifty year lease, with rent payable by the lessee at 1000 pounds per annum, subject to periodic review. The car parking station and footway were constructed and opened on 8 April 1958 and the lessee commenced paying rent at ,1,000 per annum from 1 May 1958.

In 1957 it was decided that special legislation was needed in order to grant the lease. The necessary statutory power to enter the lease was conferred on the lessor by the Domain Leasing Act 1961 (NSW) ("the Act"). Section 3 of the Act empowered the lessor to lease the carpark to the lessee with the consent of the Minister for Lands "for such terms or period, at such rental and subject to such covenants and conditions as the trustees, with the approval of the Minister for Lands may determine". Section 4 of the Act validated any lease which had already been granted. The rent was increased steadily until 1976 when it reached $4500 per annum and on each occasion the rent was explained as related to increased costs.

The formal lease executed in May 1976 included clause 4(b)(iv) which provided that in making a determination of rent the lessor "may have regard to additional costs and expenses which they may incur in regard to the surface of the Domain above or in the vicinity of the parking station and the footway and which arise out of the construction and maintenance of the parking station by the Lessee". This provision differed in certain respects from what had been proposed in correspondence in 1956.

The rent was increased on this basis until 1988 when it was increased to $50,000 per annum. From 1988 rent of that order was demanded and paid. In the period from 1996 to 1997 the rent was $600,000 per annum.

The lessee commenced proceedings claiming that the determinations of rent were invalid. Recovery of alleged overpayments of rent was also sought. The lessee's case on construction was that in making its determination the lessor was permitted to have regard to the factors specified in clause 4(b)(iv) and no other factors. The proceedings were dismissed. The primary judge held that, on the proper construction of the lease, the lessor was entitled to charge a "fair and reasonable rent".

The lessee appealed. The appeal was allowed, Spigelman CJ holding (inter alia) that although the lease had not been executed until 1976, it was the intention of the parties that it should contain the basic terms and conditions as they had been negotiated twenty years before. The Court set aside the orders below and decreed specific performance of the parties' agreement.

The respondent to the appeal has filed a notice of contention, advancing the grounds that the language of the lease was not ambiguous. Alternatively, irrespective of whether the language used was ambiguous, the surrounding circumstances were open to be used as an aid to construction.

The grounds of appeal include:

• Subclause 4(1) of the lease dated 15th May 1976 provided that the lease "shall for the purpose of determining the rights and obligations of the parties be construed as if it had been executed on (1 May 1958). Spigelman CJ erred in not accepting that subclause 4(1) precluded reference to surrounding circumstances during the period between May 1958 and May 1976;

• Spigelman CJ erred in concluding that subclause 4(1) reflected an intention of the parties that the deed of lease should continue the basic terms and conditions as they had been negotiated 20 years before; and

• Spigelman CJ erred in not treating conduct post 1 May 1958 as post contractual and thereby inadmissible on construction.

 

PASINI v. UNITED MEXICAN STATES & ORS (M39/2001)

Court appealed from: Full Federal Court of Australia

Date of judgment: 18 April 2001

Date referred to a Full Court of the High Court: 22 June 2001

The applicant (Pasini) is a citizen of Mexico. He arrived in Australia in 1997. His brother in law (Cabal) had arrived here in 1996. A series of warrants was issued in Mexico between 1994 and 1998 for the arrest of Pasini and Cabal. The charges brought against Cabal alleged, inter alia, that he had misused his position as president of a Mexican bank (Banco Union), and his position as a member of the "High Credit Committee" of Banco Union, to authorise loans to companies whose solvency "was questionable". Pasini was alleged to have assisted Cabal to commit three offences which ultimately defrauded Banco Union.

In November 1998 Pasini and Cabal were arrested by the Australian Federal Police. Mexico sought their extradition from Australia to Mexico. An extradition hearing under s19 of the Extradition Act 1988 (Cth) was conducted before Lisa Hannan M. (the second respondent). In December 1999 the Magistrate ordered that they were both eligible for surrender within the meaning of s19. Both applied to the Federal Court for review of that decision pursuant to s21 of the Act. They challenged the constitutional validity of s21 of the Act. They acknowledged that the proceedings before the magistrate are administrative proceedings in which the magistrate acts as a persona designata. They submitted that the position of the Court in reviewing the decision of the magistrate under s21 could not be distinguished from the powers exercised by the magistrate under s19 and thus the conferral of administrative power, rather than judicial power, on the Federal Court was unconstitutional. They also sought to tender additional evidence before French J, which he declined to accept. French J did so on the basis that under the Act evidence could be adduced to establish an extradition objection, but not to establish that the person had not committed the offences alleged. French J dismissed their application. The Full Court dismissed their appeal.

Cabal and Pasini applied for special leave to appeal. On 22 June 2001 the Court (Gummow, Kirby & Callinan JJ) directed that the application be referred to the Full Bench and that the matter be ready to be argued as if on an appeal. On 2 August 2001, Cabal filed a Notice of Discontinuance in respect of his participation in the application for special leave to appeal.

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

Whether s21 of the Extradition Act 1988 (Cth) represents an invalid conferral of administrative power on the Federal Court of Australia, that s21 is not severable from the remainder of the Act, and that the Act is therefore not a valid law; and

the extent to which (if at all) a person subject to extradition proceedings is limited to adducing evidence in support of their contention that an extradition objection exists or that the extradition proceedings are an abuse of process, where the evidence sought to be adduced also tends to show that the person is not guilty of the offences alleged.

 

 

WILSON v. ANDERSON & ORS (S101/2000)

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

Date of judgment: 5 April 2000

Date referred to Full Bench: 13 October 2000

The applicant is a lessee under Western Lands Lease No 7951 ("the Lease") which was executed under the Western Lands Act 1901 (NSW) ("the WLA") in 1955 and transferred to the applicant in 1984. The lease was granted in perpetuity, subject to the provisions of the WLA and the regulations.

The first respondent made an application on behalf of the Euahlay – I Dixon Clan for a determination of native title in respect of land in the Western Division of New South Wales. This land is in the far north of the State, approximately thirty kilometres south of the Queensland border. The first respondent is a claimant under the Native Title Act 1993 (Cth) ("the Native Title Claim"). The land, the subject of the lease, is subject to the Native Title Claim. There are 43 other holders of similar leases which are also subject to the Native Title Claim.

The claim for the determination of native title has not yet been heard by the Federal Court. On 29 April 1999 Beaumont J ordered by consent that there be no mediation or further mediation in respect of the Native Title Claim and that the questions set out in the stated case be referred to the Full Federal Court.

The applicant contends that the existence of his lease provides a complete answer to the Native Title Claim. His argument is that native title cannot exist over the land in question because the effect of the WLA, the regulations made under the WLA, and the terms of the lease itself, is to extinguish or suspend any native title rights which involve presence on the land by the holder of any native title. The applicant argued before the Full Court that the reasoning of the majority in The Wik Peoples v. The State of Queensland (1996) 187 CLR 1 ought to be distinguished and not followed as the Queensland statutes considered in Wik differed from the WLA in material respects. The Full Court did not accept this submission.

The questions before the Full Court were as follows:

"(a) By virtue only of:

(i) the WLA; and

(ii) the regulations thereunder, as in force at the time of the grant of the Lease; did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

(b) If the answer to the question (a) is 'No', by virtue of:

(i) the WLA; and

(iv) the regulations thereunder, as in force at the time of the grant of the Lease; and

(v) one or more of the terms and conditions of the Lease; did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

(c) If the answer to question (a) or question (b) is 'Yes', were any native title rights the exercise of which involved the presence on the leased land by the holders of the native title:

(i) extinguished by the grant of the Lease; or alternatively

(ii) suspended upon the grant of the Lease for the duration of the Lease?"

The Full Court held (by majority) that it was unnecessary to answer questions (a) and (b) in the stated case and that it was strictly unnecessary to answer question (c), but that in any event question (c) could not be answered on the material presently before the Court. The Court noted that although the Judges differed in the answers given, they all followed the majority opinions in Wik.

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

• The questions that arise on this application are whether the Federal Court erred in law in not answering the questions in the stated case as follows:

Either question (a) or question (b):

1. "Yes", or alternatively;

2. "Yes except over any 'roads' or 'tracks', or 'reserves' available for use by the public, that existed at the commencement of the Lease".

Question (c):

"Native title rights involving access to the land the subject of the Lease were extinguished upon commencement of the Lease in all areas in respect of which question (a) or question (b) is answered 'Yes'".

 

 

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v. BHARDWAJ (S37/2001)

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

Date of Judgment: 15 June 2000

Date of grant of special leave: 20 February 2001

The respondent is an Indian citizen who arrived in Australia on 4 July 1997 holding a student visa. On 6 August 1998 that visa was cancelled by a delegate of the appellant pursuant to s116 of the Migration Act 1958 (Cth) ("the Act"). On 21 August 1998 the respondent applied to the Immigration Review Tribunal ("the IRT") for a review of that decision. On 2 September 1998 the IRT wrote to both the respondent and his migration agent, advising them that the hearing was scheduled for 15 September 1998 at 9.30 am.

A late application for an adjournment of the hearing was received, but overlooked by the IRT. Neither the respondent nor his migration agent attended the IRT on 15 September 1998. On 16 September 1998 the IRT affirmed the decision to cancel the respondent's student visa. A copy of that decision ("the September decision") was sent to both the respondent and his migration agent. Following representations made by the migration agent (concerning the overlooked request for an adjournment), the IRT agreed to reconsider the respondent's application. After a subsequent hearing, the IRT revoked the cancellation of the respondent's student visa on 22 October 1998 ("the October decision").

The appellant filed an application for an order of review of the October decision in the Federal Court. Justice Madgwick dismissed that application, finding that the IRT was not functus officio after the publication of the September decision. His Honour further found that even if it was, the Court would exercise its discretion and refuse to set aside the October decision.

On appeal, the appellant submitted that the IRT was functus officio once the September decision was made and that the October decision should be set aside. The appellant further submitted that the IRT's failure to consider the request for an adjournment did not amount to a failure to comply with s360 of the Act. That section requires the IRT, in circumstances where it cannot decide a matter favourably on the papers, to give an applicant an opportunity to appear before it.

The majority of the Full Federal Court (Beaumont and Carr JJ) found that the IRT had the power to revoke its September decision, or at very least to reconsider the exercise of its review power. Justice Lehane however concluded that Part 8 of the Act did not allow the IRT to revoke a decision once made. His Honour further held that s33(1) of the Acts Interpretation Act 1901 ("the AIA") was inapplicable since a "contrary intention" appeared.

The grounds of appeal include:

That the majority of the Full Court of the Federal Court erred;

• in finding, if their Honours so found, that the decision of the IRT dated 16 September 1998 was "invalid" or "void";

• in finding, if their Honours so found, that the IRT could ignore its decision dated 16 September 1998 and proceed to reconsider the respondent's application for review; and

• in failing to find that the provisions of the Act manifest a contrary intention for the purposes of s33(1) of the AIA in relation to the duties and functions of the IRT.

(Other than Applications for Special Leave to Appeal)

COMMENCING 2 OCTOBER 2001

GERSTEN v. MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS (S177/2000)

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

Date of judgment: 5 July 2000

Date referred to the Full Court by Gaudron J: 16 May 2001

RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; EX PARTE GERSTEN (S78/2001)

Date referred to the Full Court by Gaudron J: 16 May 2001

The Applicant is an American citizen and former Florida State politician who arrived in Australia in September 1993. In October 1993 he applied for refugee status. The Applicant claimed that he feared persecution in the USA for reason of his political opinion. Specifically he claimed that an investigation into his stolen car in 1992 was being used by the then State Attorney-General, Ms Janet Reno, (and others) to damage him politically. The car itself was later recovered in the possession of two convicted felons, one of whom was a prostitute. They claimed that the Applicant had solicited the prostitute for sex and had purchased crack cocaine at a crack-house. Based on their statements, the authorities claimed that the Applicant's car was stolen while he was visiting a crack-house. This account differed from what the Applicant said had happened to his car.

In the investigation that followed, the Applicant was subpoenaed to give evidence. He answered the questions selectively and he claimed that the investigation itself was motivated by bad faith. Enforcement proceedings were then commenced in the Eleventh Judicial Circuit, where the Applicant again refused to answer questions. As a result, Judge Dean jailed him for 3 weeks for civil contempt. An appeal against her Honour's ruling was ultimately unsuccessful, as was a later appeal to the United States District Court. In the meantime, however, the Applicant, who had been released on bail, left the jurisdiction.
In relation to S177/2000

In December 1993 a delegate refused the Applicant's application for refugee status. On 8 October 1998 the Refugee Review Tribunal ("RRT") did likewise and Justice Katz dismissed an application for judicial review on 17 December 1999. On 5 July 2000 the Full Federal Court (Hill, Mathews and Lindgren JJ) unanimously dismissed the Applicant's appeal. Their Honours held that the RRT had not applied the wrong test for causation of persecution, nor had it failed to make a material finding concerning the existence of the alleged political vendetta. Their Honours also rejected the submission that the RRT failed to consider whether the Applicant's treatment while in jail was persecutory. The Full Federal Court further found that the RRT had not erred in considering what constitutes persecution and it also rejected the submission that Justice Katz was biased.

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

 

• The causation test for whether the Applicant was imprisoned for reasons of his political opinion was incorrectly applied by the RRT and that incorrect reasoning process has been upheld by the court below;

• The RRT erred in applying an incorrect test of what constituted persecution, and that approach was upheld by the court below;

• The RRT failed to set out findings on material questions of fact and failed to set out reasons for the decision, in the sense that no reasons were given for ignoring certain material facts, as it was required to do, which approach was upheld by the court below; and

• The court below erred in finding that there was no actual bias by the Judge at first instance.

In relation to S78/2001

On 20 April 2001 the Applicant also filed a draft order nisi, seeking writs of Certiorari, Prohibition and Mandamus against both the RRT and the Minister for Immigration and Multicultural Affairs. That application seeks to challenge the RRT's decision on the basis that it involved an exercise of power so unreasonable or illogical that it is said to have been made in excess of jurisdiction. The Applicant is also challenging the RRT's failure to consider that his jailing for civil contempt was a result of his political opinion, not simply because he had refused to answer questions in Judge Dean's Court.

 

CONWAY v. THE QUEEN (C11/2001)

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

Date of Judgment: 11 April 2000

Date special leave granted: 1 June 2001

The appellant was charged with murdering his wife on 3 May 1997. It was the Crown case that the appellant and co-accused (with whom the appellant was having a relationship), acting in pre-concert, persuaded the Crown witnesses Williams and Steer to inject the deceased with a lethal dose of heroin.

Those witnesses, Steer and Williams confessed to having carried out the murder of the deceased and that they had done so at the request of Conway and his co-accused. Part of the Crown case related to evidence of what became known as "the coffee incident" in which the deceased complained to a number of people that, one morning, the appellant had attempted to and had admitted to her that he had put something in her coffee. At trial, the Crown contended that the inference to be drawn from this evidence was that the substance was heroin. The Crown contended that it was a preparatory act to murder the deceased.

The appellant argued that the evidence of the "coffee incident" should have been excluded because it was propensity or similar fact evidence and that the evidence of a neighbour of the deceased and other persons to whom the deceased had spoken about the coffee incident was hearsay and should not have been admitted. He also contended that the deceased's version of the coffee incident as set out in her diary entry was hearsay and should not have been admitted.

Tapes were tendered by the Crown to show the nature of the relationship between the co-accused and the deceased, the co-accused and the appellant and also to show that the co-accused and the appellant in their dealing with the deceased had acted in tandem in a way that would cause her harm in certain custody proceedings. The Crown case also relied heavily on the evidence of the accomplices Steer and Williams.

The appeal to the Full Court of the Federal Court was dismissed.

The grounds of appeal are:

• Having determined that the learned Trial Judge at first instance was obligated to direct the jury to consider corroborative evidence 'separately in the case of each accused', the Full Court erred in ruling that there was no reason in principle why evidence not otherwise corroborative in the case of the appellant but admissible under the 'co-conspirator rules', could not also be capable of constituting corroboration of the accomplice's evidence in his case; and

•  The Full Court erred in concluding that the items of evidence wrongly left to the jury as corroborative of the case against the appellant did not lead to a miscarriage of justice.

BURKE & ANOR v. LFOT PTY LIMITED & ORS (S130/2001)

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

Date of Judgment: 18 August 2000

Date of grant of special leave: 1 June 2001

In July 1994 contracts were exchanged for the sale of a property consisting of seven tenanted shops at Leichhardt. The vendor was the first respondent ("LFOT"). Two of its directors were the second respondent ("Mr Tressider") and the third respondent ("Mr Glew"). The purchaser was the second appellant ("Hanave"). The first appellant ("Mr Burke") was a director of Hanave and acted as its solicitor. A major tenant of the property was Barbara's Storehouse which occupied two of the shops and contributed about a third of the total rental income.

Barbara's Storehouse was in default of prompt rental payments from an early stage. In September 1995 Hanave commenced proceedings in the Federal Court against LFOT and Messrs Tressider and Glew. Hanave alleged breaches of s52 of the Trade Practices Act 1974 (Cth) ("TPA"), namely misrepresentations concerning the quality of Barbara's Storehouse as a tenant. The respondents cross-claimed against Mr Burke alleging that, as solicitor for Hanave, he negligently failed to advise Hanave to make proper inquiries as to the financial position of tenants.

The primary judge, Moore J, dismissed Hanave's application. Hanave appealed to the Full Court. The appeal was allowed. LFOT and Mr Tressider and Mr Glew sought special leave to appeal to the High Court. This was refused on 10 December 1999.

On 11 November 1999 Moore J delivered a further judgment holding, inter alia, that Mr Burke had been negligent and was liable in equity to make contribution. His Honour assessed damages in the sum of $750,000 and ordered that LFOT and Mr Tressider pay that amount to Hanave and that, upon satisfaction of that order, Mr Burke make contribution to LFOT and Mr Tressider of half that amount.

Mr Burke and Hanave appealed to the Full Court against the order that Mr Burke make contribution to LFOT and Mr Tressider. The Full Court held – Lee J dissenting – that LFOT and Mr Tressider were entitled to contribution at law. The majority considered the principles and reasoning set out in Albion Insurance Company Ltd v. Government Insurance Office of New South Wales (1969) 121 CLR 342 to be applicable to the case and that contribution was available where two or more persons who were each liable in respect of the same debt ought to make good the same loss sustained by a third party in circumstances where discharge of the obligation by one relieved the other.

The appellants are not seeking any orders against Mr Glew.

The grounds of appeal are:

• The Full Federal Court (Lee J dissenting) was in error in holding that the general law of contribution applied to permit recovery of contribution from the first appellant by the first respondent and the second respondent arising out of a judgment that the second respondent had contravened s52 of the TPA and the first respondent was a person involved in the contravention pursuant to s75B;

• The court was in error in holding that the first appellant who was found to have been negligent and in breach of his retainer as a solicitor to his client was under a common liability to the client with the first and second respondents who had contravened s52 of the TPA such as to give rise to a right of contribution in the first and second respondents as against the first appellant;

• The court was in error in not finding that the contribution to apply between persons who have concurrent liabilities to a third party there must be a common liability arising out of a common design to achieve a common end;

• The court should have found that the conduct of the respondents being proscribed by s52 of the TPA would entitle the first appellant to an indemnity from the first and second respondents and thus was a bar to making any order for contribution;

• The court should have found that as the first and second respondents intended to mislead the second appellant through the first appellant that the respective liabilities of the first appellant and the first and second respondents were not in respect of a common obligation and that there was no equality between them such as to give rise to a contribution; and

• If the first appellant was liable to make contribution to the first and second respondents the court erred in not apportioning the liability as to one-third to the first appellant and a further third to each of the first and second respondents.

BIENSTEIN v. BIENSTEIN (M140/2000)

Court appealed from: Single Justice, High Court of Australia

Date of judgment: 1 December 2000

The parties were husband and wife. There were various proceedings in the Family Court of Australia including a claim for maintenance in respect of an adult child of the marriage.

The wife filed an application for removal of proceedings pending in the Family Court, pursuant to s40 of the Judiciary Act 1903 (Cth). That application for removal (M133/00) came before Justice Hayne on 1 December 2001. The wife appeared in person. The husband did not appear to make any submissions. Justice Hayne refused the application for removal.

The wife filed a notice of appeal pursuant to s34(1) of the Judiciary Act 1903 (Cth), contending that s34(2) of the Judiciary Act was not applicable and that leave to appeal is not required.

The grounds set out in that notice of appeal include:

• Hayne J failed to properly consider the mind of the fair-minded lay observer who, regardless of His Honour's own views, might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide; and

• Hayne J's reasons for refusing to disqualify himself are insufficient.

IN THE MATTER OF AN APPLICATION BY HELEN BIENSTEIN FOR LEAVE TO ISSUE PROCESS (C4/2001)

Mrs Bienstein sought to issue a writ of summons, naming the Prime Minister as defendant. On 22 February 2001, Justice Gaudron directed, pursuant to order 58 rule 4(3) of the High Court Rules, that the Registrar not issue the writ without the leave of a Justice first had and obtained.

Order 58 rule 4(3) of the High Court Rules provides as follows:

"If the writ, process or commission appears to a Registrar on its face to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the Registrar shall seek the direction of a Justice who may direct him to issue it or to refuse to issue it without the leave of a Justice first had and obtained by the party seeking to issue it."

Mrs Bienstein did not make application in the usual way to seek leave to issue the proceeding, but filed a notice of appeal from the direction of Justice Gaudron, contending that she was entitled to do so pursuant to s34(1) of the Judiciary Act 1903 (Cth).

The grounds as set out in her notice of appeal include:

Gaudron J's direction has the effect finally, summarily, without hearing and without published reason of denying my substantive Common Law Right to equal access to Justice, free of any "special" conditions or obstacles;

There is no source of legal power to support the relevant Rule, and there is no authority identifying any such power; and

The Rule is unnecessary because of the existence of more equitable means for dealing with actions that are alleged to be vexatious, frivolous or an abuse of process.

 

 

MUIN (AS THE REPRESENTATIVE OF THE PERSONS LISTED IN THE SCHEDULE) v. REFUGEE REVIEW TRIBUNAL & ORS (S36/1999)

LIE (AS THE REPRESENTATIVE OF THE PERSONS LISTED IN THE SCHEDULE) v. REFUGEE REVIEW TRIBUNAL & ORS (S89/1999)

Questions Referred: 3 November 2000 by Gaudron J

These proceedings relate to things done and decisions made during the course of the defendants' determination of the refugee status of the plaintiffs, Muin and Lie, with a view to the grant of, or refusal to grant, a protection visa under the Migration Act 1958 (Cth) ("the Act"). The issues raised depend upon the operation of the provisions of the Act in force at the date of the decision of the first defendant in relation to each of the plaintiffs, namely 25 November 1998 and 6 January 1998 respectively. The Act was relevantly identical at each date.

In relation to S36/1999

On about 8 June 1996 Muin arrived in Australia. He is an Indonesian national of Chinese ethnicity. On 26 August 1996 Muin applied for a protection visa within the class of visas identified by s36 of the Act. On 9 March 1998 a delegate of the Minister for Immigration and Multicultural Affairs, after considering the application for a visa, was not satisfied that Muin was a person to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees as Amended by the Protocol Relating to Refugees done at New York on 31 January 1967 and accordingly refused to grant the visa.

On 26 March 1998 Muin made an application for review of the delegate's decision to the Refugee Review Tribunal ("the Tribunal"). On 1 October 1998 the Principal Member of the Tribunal gave a written direction about who was to constitute the Tribunal for the purpose of the review sought by Muin in accordance with s421(2) of the Act. On 13 October 1998 a review on the papers was completed by the Tribunal member purportedly pursuant to s424(1) of the Act. A letter was written to Muin dated 13 October 1998 advising him that the Tribunal was not prepared to make the decision most favourable to him on the review on the papers. On 18 November 1998 Muin attended a hearing before the Tribunal. On 25 November 1998 the Tribunal decided to affirm the decision of the delegate of the Minister refusing to grant a protection visa.

On 22 March 1999 proceedings were brought in this Court under s75(v) of the Constitution. Muin contends that the Tribunal member took into account material adverse to his case without his knowledge. This deprived him of an opportunity to counter that adverse material by evidence and submissions. This failure to give Muin an opportunity to answer the adverse material was a breach of procedural fairness.

Secondly, Muin argues that the Tribunal member failed to receive or consider relevant material that contained information favourable to his case. Had the Tribunal member properly received and considered this information, Muin would have had better prospects of obtaining a favourable decision. The said failure of the Tribunal member to receive and consider the documents known as the Part B country material was a breach of procedural fairness. This failure to consider relevant material was also a breach of ss418(3) and 424(1) of the Act, making the decision procedurally ultra vires, or, at least, unlawful.

In relation to S89/1999

Lie arrived in Australia on or about 3 January 1997. She is an Indonesian national of Chinese ethnicity. She commenced proceedings in the Court on 10 June 1999. The issues raised are the same as those in Muin, except that there is no allegation that material adverse to the interests of the plaintiff was taken into account without her being given an opportunity to respond to it.

The questions referred in each matter are:

• Upon the facts set out in the agreed statement of facts and the inferences, if any, to be drawn from those facts, the following questions are reserved for the consideration of the Full Court.

1. Was there a failure to accord the Plaintiff procedural fairness?

2. Was there a failure to comply with s418 (3) of the Act?

3. Was there a failure to comply with s424 (1) of the Act?

4. If the answer to any of questions 1 to 3 is yes,

(a) Was the decision of the First Defendant to affirm the refusal of the delegate to grant a protection visa for that reason invalid?

(b) What declaratory, injunctive or prerogative writ relief, if any, should be ordered?

5. By whom should the costs of the proceedings in this Court be borne?

 

 

LUTON v. LESSELS & ANOR (C40/1995)

Date case stated: 14 March 2001

On 14 March 2001, Justice Callinan stated a case pursuant to s18 of the Judiciary Act 1903 (Cth).

On or about 1 November 1991 Luton and Lessels began to cohabit as if they were husband and wife. This ceased on 1 August 1992. On 15 February 1993 a child was born of the relationship between the two. On 9 July 1993 Lessels applied to the second respondent for assessment of and registration of a Child Support Arrangement under the Child Support (Registration and Collection) Act 1988 (Cth) ("the Registration Act"). On 7 August 1993 the Registrar made an assessment of the liability of Luton to pay child support. The Registrar registered the registrable maintenance liability which arose under that assessment pursuant to s24A of the Registration Act.

On or about 18 October 1994, pursuant to s75 of the Child Support (Assessment) Act 1988 (Cth) ("the Assessment Act"), the Registrar amended the assessment so as to vary the commencement date of the period in respect of which child support was payable by Luton from 12 June 1993 to 9 July 1993. The Registrar made corresponding variations entered into the Child Support Register.

On 10 December 1993, Lessels made an application under s98B of the Assessment Act so as to increase the rate of child support payable on the ground that the income, earning capacity, property and financial resources of Luton were not properly reflected in the assessment. On 3 February 1994, pursuant to s98G of the Assessment Act, Luton lodged with the Registrar a reply to Lessels' application, and by application under s98B sought a reduction in the rate of child support payable on a number of the grounds set out in s117 of the Assessment Act.

On 14 April 1994, a Child Support Review Officer (a delegate of the Registrar), made an assessment pursuant to s98D of the Assessment Act in the following terms:

"There should be a departure from the child support assessment made for the 1993/1994 child support year. For the period 1 January 1994 to 30 June 1994 the child support income of Mr Luton should be $37,188. For the period 1 July 1994 to 30 June 1995 the child support income of Mr Luton should be $38,489."

On 28 April 1994, the Registrar entered the particulars of this assessment on the Child Support Register, pursuant to s37A of the Registration Act. In relation to the subsequent child support years, pursuant to s31(2)(b) of the Assessment Act, the Registrar has assessed the annual rate of child support payable by Luton.

The Registrar has enforced collection of the amounts payable under the various assessments by means of: issuing notices to Luton's employers to make deductions from Luton's salary (under s46 of the Registration Act), pursuant to s72 of the Registration Act, applying an amount owing to Luton by the Commonwealth under the Income Tax Assessment Act 1936 (Cth) against the amount of the debt due to the Commonwealth by Luton under the Registration Act. Luton's employers have made periodic deductions from his salary pursuant to s46 of the Registration Act and have paid the amounts deducted to the Registrar in compliance with s47 of that Act.

The questions stated for the consideration of the Full Court are:

1. Is the scheme established by the Child Support (Registration and Collection) Act 1988 (Cth) and the Child Support (Assessment) Act 1988 (Cth) for the collection and payment by the respondent of money otherwise payable to or receivable by the plaintiff a tax?

2. If "yes" to question 1 are the Acts invalid as being contrary to s55 of the Constitution?

3. Do the Acts in purporting to authorise the second respondent to make the assessments and the determinations, to enter the particulars, to issue the notices, and to collect and apply payments in the way in which the second respondent did involve the purported exercise of judicial power by the second respondent contrary to Ch III of the Constitution?

4. What orders for the further disposition of the action should be made in the light of the answers to these questions.

* * * * * * * * *

SHORT PARTICULARS OF CASES

PERTH CIRCUIT SITTINGS

COMMENCING MONDAY, 22 OCTOBER 2001

APPEALS

 

WOODS v. MULTI-SPORT HOLDINGS PTY LTD (P93/2000)

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

Date of Judgment: 1 March 2000

Date of grant of Special Leave: 27 October 2000

This appeal results from an injury sustained by the appellant on 12 March 1996 when he was playing indoor cricket. The appellant was batting and hit a ball which in some fashion ricocheted off his bat and struck him in the right eye and, as a result, was almost totally blinded in that eye. The appellant brought an action for damages against the respondent seeking damages for negligence, breach of contract and breach of statutory duty under the Occupiers Liability Act. The appellant argued before the Full Court that the learned trial judge erred in holding that the respondent did not breach its duty of care to the appellant by failing to provide helmets to protect players from the risk of serious eye injury. He also complained of a failure to warn of the risk of serious eye injury arising out of the playing of indoor cricket. The trial judge had found that such a warning was not required because there was no evidence that the respondent knew of the danger of eye injury.

The Full Court found no error in the trial judge's approach to the resolution of the issues of fact and upheld her finding that there was no breach of either a common law duty or a statutory duty and there was no obligation reasonably to be imposed to provide a protective helmet or to warn the appellant of the risk of eye injury.

The grounds of appeal include:

 

• When considering whether the rise of serious eye injury was obvious to the Appellant, the Full Court ought to have considered whether the Appellant had a full appreciation of not only the nature of the risk, but also the extent of the risk. In this instance the Full Court only directed it's attention to the Appellant's appreciation of the nature of the risk;

• Having accepted that the Appellant was a contractual entrant, the Full Court should have had regard to this fact when determining whether it was reasonable for the Respondent to warn the Appellant of the risk of serious eye injury;

• The Full Court ought to have found that the scope of the duty of care owed by the Respondent to the Appellant extended to the provision of helmets to protect the players from serious eye injury; and

• The Full Court erred in finding that the rules of Indoor Cricket modified and/or restricted the duty of care owed by the Respondent.

MOLTONI CORPORATION PTY LTD v. QBE INSURANCE LTD (P92/2000)

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

Date of Judgment: 3 April 2000

Date of grant of Special Leave: 27 October 2000

On 7 May 1999, Mr Symons obtained a judgment against the appellant (then defendant) for over $300,000 for damages in respect of a back injury sustained by him on 7 November 1992 whilst he was employed by the appellant as a demolition worker at the Sheraton Hotel Perth.

At the hearing of the original action the appellant claimed a declaration that the respondent (then the third party), was required to indemnify it under a policy of insurance. The respondent denied liability primarily on grounds that the appellant had not given notice of Mr Symons' injury to it until 6 April 1994, approximately 17 months after the injury. The respondent claimed that, due to the late notice, it had suffered prejudice because it had been unable to carry out any investigation of the matter or arrange for the treatment of Mr Symons' injury before 6 April 1994.

At trial, the respondent was found liable to indemnify the appellant for the full amount of the judgment obtained by Mr Symons and costs. It was common ground that, but for s54(1) of the Insurance Contracts Act 1984 (Cth), the respondent would have been entitled to refuse to indemnify the appellant for breach of the term of the policy requiring notice of an accident to be given as soon as practicable. The respondent appealed to the Full Court who, by a majority (Murray J dissenting), allowed the appeal.

The grounds of appeal are:

• The Full Court erred in law in that when determining whether for the purposes of s.54 of the Insurance Contacts Act 1984 (Cth) the respondent insurer's interests were prejudiced by the appellant's breach of the notice of injury term of the insurance contract it should have held that:

• a 'lost opportunity' to take action in response to notice of any injury (to effect medical and rehabilitation reviews of the plaintiff) was not prejudice, or the breach did not cause prejudice, if the respondent failed to prove on the balance of probabilities that it would have taken that action and that it was insufficient that as a probability or possibility the respondent might have taken that action;

• the finding of the trial judge that the plaintiff's ongoing incapacity was caused by his injury on 7 November 1992 and not by an incident in 1993 was a proven fact that was required to be (and had been) decided on the balance of probabilities, rather than a probability or possibility to be taken into account in assessing the value of a 'lost opportunity'.

• The Full Court erred in law in that it should have held that the Respondent was precluded from challenging on appeal the findings of fact concerning the cause and course of the plaintiff's incapacity because the findings were made in the action between the plaintiff and the appellant, the challenge relied on evidence called by the respondent in the action, and the respondent had not made the plaintiff a party to the appeal and had not appealed against findings in his favour;

• The Full Court erred in law in that it should have held that the trial judge had given sufficient reasons for preferring the evidence of the plaintiff's medical witnesses to those called by the respondent in the plaintiff's action.

The respondent seeks special leave to cross-appeal in relation to the appellant's first ground of appeal and also from that part of the judgment of the Full Court which held that the subject contract of insurance was not one contemplated by s.9(1)(e) of the Insurance Contracts Act 1984 (Cth).

 

GOLDSMITH v SANDILANDS & ORS (P91/2000)

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

Date of Judgment: 17 February 2000

Date of grant of Special Leave: 27 October 2000

The appellant was the plaintiff in proceedings in the District Court of Western Australia. He claimed that, while serving as a police officer, he sustained injuries whilst involved in a high speed police pursuit. There was no collision, it being alleged that the appellant was thrown around as the front seat passenger in the police vehicle. The first respondent was the driver of the pursuit vehicle and the fourth respondent was sued as the insurer of the unidentified driver of the vehicle being pursued.

At trial, the respondents raised a number of defences including that the appellant had not suffered injury during the pursuit, that the appellant had sustained the injuries days before playing indoor cricket, and that his injuries were attributable to a motor vehicle accident in April of 1995. The Commissioner in the District Court dismissed the appellant's claim and made findings adverse to his credibility and held that the appellant had injured himself playing indoor cricket. The Commissioner based his findings that the appellant had injured himself playing indoor cricket on the first respondent's evidence that the appellant told him that he had injured himself at indoor cricket when the first respondent collected him from cricket, that two fellow police officers gave evidence to say that the appellant had told them separately he had injured himself playing indoor cricket and the evidence of Dr Silver who concluded that the appellant's injuries were more likely to be the result of playing indoor cricket than the police pursuit.

During the adjournment and after the appellant had closed his case, it became apparent to the appellant that the description of the location of the street where the first respondent alleged collecting the appellant from indoor cricket did not match the actual location of the arena. During the adjournment the appellant visited the two locations and took photos which counsel for the appellant unsuccessfully sought to put to the first respondent in cross-examination.

On appeal to the Full Court of the Supreme Court of Western Australia the Court found that the Commissioner had erred in refusing to exercise his discretion to allow the appellant to call evidence in respect of these matters and that the Commissioner had erred in refusing to allow evidence of a physiotherapist to be called to exclude any suggestion that the accident of April 1995 was relevant. Although the Full Court found a number of the bases upon which the Commissioner had relied to make the findings of credibility adverse to the appellant were not open to him, it upheld the majority of the bases for assessing the appellant's credibility. The Full Court also held that there was other evidence upon which it was open to the Commissioner to find that the appellant had injured himself whilst playing indoor cricket.

The grounds of appeal include:

• Having found the Commissioner erred in:

• Failing to allow the Appellant to admit evidence in rebuttal or to reopen his case in respect of the location of Strikers Belmont;

• Failing to allow the Appellant to call the evidence of his physiotherapist in respect of the accident on 10 April 1995;

• 8 of the 16 points relied upon by the Commissioner in supporting his findings of credibility adverse to the Appellant were either partially or wholly not open to the learned Commissioner;

• The Full Court of the Supreme Court of Western Australia erred in concluding the Appellant had not suffered an injustice and that there was sufficient foundation for the Commissioner's decision.

• Having regard to the evidence overall the Full Court of Western Australia erred in failing to conclude an injustice had occurred and that sufficient doubt existed as to the appropriateness of the Commissioner's findings.

 

 

(Other than Applications for Special Leave to Appeal)

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v KHAWAR & ORS (S128/2001)

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

Date of judgment: 23 August 2000

Date of grant of special leave: 1 June 2001

Mrs Khawar ("the Respondent") and her three children are Pakistani citizens who arrived in Australia on 17 June 1997. On 16 September 1997 they applied for Protection Visas. The Respondent claimed that she was the target of domestic violence at the hands of her husband, his brother and to a limited extent, their family. She claimed that she went to the Pakistani police on four occasions and on each occasion the authorities took no action against her husband. On 4 February 1998 a departmental delegate refused her application, as did the Refugee Review Tribunal ("RRT") on 11 January 1999. The RRT found that the conduct that the Respondent feared was not for reasons of her membership of any particular social group, nor was it for any other Convention related reason. It found that the Respondent's problems were related solely to the fact that she married her husband against the wishes of her husband's family.

On 5 November 1999 Branson J set aside the RRT's decision and on 23 August 2000 the Full Federal Court (Mathews and Lindgren JJ, Hill J dissenting) dismissed an appeal by the Minister. The majority found that the critical issue was; "whether the RRT erred in its view that the absence of state protection for any particular group of which Mrs Khawar might have been a member was, as the RRT considered, irrelevant to the causal link demanded by the words 'for reasons of' in the Convention definition of 'refugee'." The majority answered that question affirmatively, firstly by finding that the state's conduct constituted persecution and secondly, by finding that the combination of the husband's conduct and the state's conduct also constituted persecution.

Justice Hill however found that there was no causal link between the persecutory conduct and the Respondent's membership of a social group. This was because mere inaction by a state could not, without more, constitute persecution. As a corollary, his Honour found that the only possible relevant social group, Pakistani women with abusive alcoholic husbands, was defined by reference to the persecutory conduct itself.

The grounds of appeal are:

• The majority erred in law in holding that persecution may consist of the effect of the conduct of two or more persons, only one of whom may be moved by a Convention reason.

• The majority erred in law in holding that the RRT in the circumstances of the case erred by reaching a conclusion on the question of whether the Respondent's fear of persecution was for reason of her membership of a particular social group without first identifying such a group, if any, of which she was a member.

• The majority erred in law by holding that a state's systemic failure to protect the members of a particular social group who were subject to domestic violence could constitute persecution 'by reason of' the victim's membership of the group, even though the perpetrator of the violence was not motivated by a Convention reason to inflict the violence.

• The majority erred by holding that the causal nexus required by the words 'by reason of' could be established if domestic violence, perpetrated for a non-Convention reason, was inflicted in the knowledge that state protection would not be provided to the victim by reason of her membership of a particular social group.

• The majority ought to have held that the primary judge erred in finding that the RRT had erred in law in the manner comprehended by section 476(1)(e) of the Migration Act 1958.

GERLACH v. CLIFTON BRICKS PTY LIMITED (S43/2001)

Court appealed from: New South Wales Court of Appeal

Date of Judgment: 28 April 2000

Date of grant of special leave: 16 February 2001

The appellant commenced proceedings in the Supreme Court in July 1989, seeking damages against the respondent for injuries for an industrial accident. Years later the proceedings were remitted to the District Court. At the appropriate stage, while the action was pending in the Supreme Court, the appellant had requisitioned for trial by jury. It was accepted that this requisition remained effective after the transfer of the proceedings to the District Court so as to require the action to be tried with a jury unless it was dispensed with.

On the second last working day before the trial the appellant obtained an order to dispense with the jury. The respondent opposed the making of such order. Christie DCJ exercised the discretion conferred by Section 79A of the District Court Act 1973 which provides: "In any action the court may order, despite sections 77, 78 and 79, that all or any questions of fact be tried without a jury". In the exercise of his discretion, Christie DCJ considered the number of witnesses who would have to be called from different parts of the country and said that the appellant would be put to significant financial burden in calling an expert witness in addition to providing accommodation for the lay witnesses while they waited to be called before the jury.

The hearing of the appellant's case proceeded before Morrison ADCJ. The appellant was awarded $390,000 damages.

The respondent appealed, challenging not only the trial judge's decision on liability and damages, but also challenging the interlocutory order of Christie DCJ.

The Court of Appeal held that the respondent could challenge the interlocutory order to dispense with the jury on an appeal against the final judgment. The Court held that the cost of witnesses was not a relevant consideration in the exercise of the judge's discretion and therefore that the order to dispense with the jury should not have been made. The Court further held that the respondent was entitled to a retrial.

The appellant has filed a notice of motion seeking leave to amend the grounds of appeal.

The proposed amended grounds of appeal include:

•  The Court of Appeal was wrong in setting aside the decision of the District Court under s79A of the District Court Act 1973 to dispense with the jury previously requisitioned in the proceedings;

• The Court of Appeal erred in applying a restriction upon the discretion vested in the District Court by s79A as propounded by the Court of Appeal in Pambula Public Hospital v. Herriman (1988) 14 NSWLR 387 and applied in subsequent decisions;

• The Court of Appeal ought not to have followed its earlier decision in Pambula, it being wrongly decided, and the discretion of s79A being general and unfettered;

and

• The Court of Appeal failed to apply the decision and reasoning of the High Court in Patton v. Buchanan Borehole Collieries Pty Limited (1993) 178 CLR 14 in relation to the discretion conferred by s79A.

 

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v RAJAMANIKKAM & ANOR (S122/2001)

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

Date of judgment: 3 August 2000

Date of grant of special leave: 1 June 2001

This appeal involves the construction of s.476(1)(g) and s.476(4) of the Migration Act 1958 (Cth) ("the Act").

The Respondents are a retired Sri Lankan doctor who suffers from dementia and his wife. On 24 May 1996 they arrived in Australia and shortly afterwards they lodged combined applications for a Protection Visa. Only Mr Rajamanikkam ("the Respondent husband") made specific claims to be a refugee, with Mrs Rajamanikkam being named as a member of the family unit. The Respondent husband claimed that he feared persecution from both the Sri Lankan authorities and the Liberation Tigers of Tamil Eelam ("LTTE" ). He claimed that the authorities perceived him to be associated with the LTTE. He also claimed that the LTTE perceived him to be a moderate Tamil who had not paid them extortion money.

On 20 March 1997 a departmental delegate refused the Respondents' application, as did the Refugee Review Tribunal ("RRT") on 29 September 1998. The RRT found that the Respondent husband was not a credible witness and it identified eight specific evidentiary inconsistencies which led it to that conclusion.

On 19 November 1999 Einfeld J set aside the RRT's decision and on 3 August 2000 the Full Federal Court (Kiefel, North and Mansfield JJ) unanimously dismissed an appeal by the Minister. Their Honours found that there was no evidence to support the RRT's conclusion in respect of two of the eight evidentiary inconsistencies upon which it had based its adverse credibility finding. Specifically, those inconsistencies related to whether Point Pedro was under government control and whether the Respondent husband was considered a "newcomer" to Trincomalee. Their Honours found that these were critical links in the RRT's overall chain of reasoning in the sense discussed in Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212.

The grounds of appeal are:

• The Full Court erred in upholding the decision of the primary Judge setting aside the decision of the RRT on the basis that the ground identified in paragraphs 476(1)(g) and 476(b) of the Act had been made out because:

o two out of eight factors relied upon by the RRT for rejecting the Respondent husband's evidence constituted particular facts for the purposes of paragraph 476(4)(b); and

o those facts were 'critical' in the sense referred to by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357-358.

• The Full Court erred in failing to hold that:

o inferences drawn by the RRT in relation to answers given by the Respondent husband in an interview, could not constitute 'particular facts' for the purposes of paragraphs 476(1)(g) and (4)(b) of the Act; and

o the 'no evidence' ground contained in paragraph 476(1)(g) was not available in relation to a decision that the RRT was 'not satisfied' as to the statutory pre-condition for the grant of a Protection Visa.

 

 

SHERGOLD v TANNER (M63/01)

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

Date of judgment: 10 October 2000

Date special leave granted: 22 June 2001

This appeal concerns a challenge by the respondent, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s39B of the Judiciary Act 1903 (Cth), to the decision of the appellant to issue two conclusive certificates pursuant to s36(3) and s33A(2) of the Freedom of Information Act 1982 (Cth) (the FOI Act).

The conclusive certificates were issued in respect of certain documents sought under the FOI Act in December 1997 by the respondent from the Department of Workplace Relations and Small Business, now the Department of Employment, Workplace Relations and Small Business (the Department). The appellant is the Secretary of the Department and the delegate of Peter Reith the Minister for Employment, Workplace Relations and Small Business for the purposes of the FOI Act. The respondent is a Member of Parliament who was the Shadow Minister for Transport at the time he made the FOI request. The respondent had sought access to reports arising from certain consultancies on waterfront reform and had been refused. The conclusive certificate stated that disclosure of the documents would be contrary to the public interest.

The respondent instituted proceedings in the Federal Court seeking judicial review. None of the grounds of the respondent's challenge involve a challenge to the certificates based on a defect apparent on the face of the certificate. Each of the grounds of review is directed to some alleged defect in the decision-making process by which the appellant determined to issue the conclusive certificate. The grounds relied on are traditional administrative review grounds (including an alleged denial of natural justice), which would ordinarily be subject to review under the ADJR Act. The appellant contended that access to relief under the ADJR Act has been relevantly curtailed by the FOI Act. The respondent contended that the FOI Act deals with the question of merits review in respect of the issuing of a conclusive certificate, but does not foreclose judicial review of the actual decision to issue a certificate.

Marshall J reserved a preliminary question for determination as follows:

"whether the alleged decisions referred to in paragraphs 1 and 3 of the proposed further amended application for an order for review dated 2 December 1999 (the "amended application") are amenable to review by the Court as sought in the amended application."

His Honour answered that question in the affirmative.

The Full Court by majority (Black CJ and Finkelstein J; Burchett J dissenting) dismissed the appellant's appeal.

The ground of appeal is:

• The separate question ought to have been answered "no" as the decisions of the appellant to issue the certificates issued under s33A(2) and s36(3) of the Freedom of Information Act 1982 (Cth) (the Act) are not decisions reviewable under s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or s39B of the Judiciary Act 1903 (Cth) on grounds other than grounds going to defects apparent on the face of the certificates, because of the effect of the words "establishes conclusively" in ss33A(2A) and 36(3) of the Act in the context of the Act as a whole.

 

HARWOOD v. THE QUEEN (B49/2001)

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

Date of Judgment: 30 May 1995

Date Special Leave granted: 27 June 2001

The appellant was tried jointly with Gary Hind and on 15 September 1994 both were convicted of murder and sentenced to life imprisonment.

The evidence at trial was that at about 11:00pm on 16 February 1994, the appellant and Hind went to a bus depot in Bundaberg where they intended to rob the cafeteria. Hind was armed with a sawn-off .22 calibre rifle. The appellant knew that Hind had the weapon but did not know whether or not it was loaded. The victim was sitting outside the cafeteria. Hind sat behind him and told him to move on and then pointed the rifle at him. The victim did not move as directed and was shot and killed.

The prosecution case against the appellant for murder was put on 2 bases:–

That Hind shot the deceased intending to cause death or grievous bodily harm and that this was the probable consequence of the prosecution of the common intention to prosecute the unlawful purpose of armed robbery, the offence of murder arising pursuant to a combination of ss. 8 and 302(1)(a) of the Criminal Code (Qld); and

That the death was caused by means of an act done in the prosecution of an unlawful purpose which act was of such a nature as to be likely to endanger human life and that the killing of the victim in this way was the probable consequence of the prosecution of the common unlawful purpose of robbery, the offence of murder arising pursuant to a combination of ss. 8 and 302(1)(b) of the Criminal Code.

In the appellant's case, the offence of manslaughter was available and depended upon a combination of the criminal negligence provision in the Code and s.8 of the Code.

In summing up, the trial judge did not instruct the jury that a manslaughter verdict was also available against the appellant in the event that a conclusion was reached that an unlawful killing by the co-accused was a probable consequence of the prosecution of the common unlawful purpose.

The appellant's appeal to the Court of Appeal was dismissed. The majority of the Court overruled an earlier decision in R v. Jervis [1993] 1 QdR 643, which found that a verdict of manslaughter was available in a situation where an unlawful killing by a co-accused was a probable consequence of the prosecution of a common unlawful purpose. The Court of Appeal held that if the co-accused was convicted of murder, the appellant could not be convicted of manslaughter and that Jervis should not be followed. The judgment of the Court of Appeal in the appellant's case was subsequently overruled in R v. Barlow (1997) 188 CLR 1, which confirmed the correctness of Jervis.

The ground of appeal is:

• The Court of Appeal erred in holding that the appellant could not be convicted of manslaughter in the event that the co-accused, Hind, was convicted of murder, in consequence whereof the appellant was denied a fair trial in that a possible basis for conviction of manslaughter was not put to the jury.

I & L SECURITIES PTY LTD v. HTW VALUERS (BRISBANE) PTY LTD (B48/2001)

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

Date of Judgment: 22 September 2000

Date Special Leave Granted: 27 June 2001

This appeal relates to a claim made by the appellant under s.52 of the Trade Practices Act 1974 (Cth) ("the Act") against the respondent (a valuer), who gave a wrong valuation of real property upon which the appellant relied to its detriment.

The trial judge found that the wrong valuation was a cause of the appellant making a loan, on which loan the appellant lost a substantial amount of money.

The trial judge also found that there was another cause of the loss, that being the appellant's failure to making sufficient enquiries in relation to the capacity of the borrower to make repayments under the loan. The borrower never had any realistic opportunity of meeting the interest payments and made default 5 weeks after the loan was made. The trial judge found that this information would have been readily ascertainable by the appellant with reasonable inquiries.

As result of the trial judge finding that there were two independent causes of loss, damages were awarded based on an assessment of the respective parties' responsibilities for the loss, resulting in the appellant recovering only two thirds of the total loss on the loan.

On appeal (by the appellant), the Court of Appeal (sitting a bench of 5 judges) considered the interrelation of s.82 and s.87(1) of the Act. S.87(1) reads as follows:

"...where, in a proceeding instituted under, or for an offence against, this Part, the Court finds that a person who is a party to the proceeding has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in...in contravention of a provision of Part IV, IVA or V, the Court may, whether or not it grants an injunction under section 80 or makes an order under section 80A or 82, make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in sub-section (2) of this section) if the Court considers that the order or orders concerned will compensate the first mentioned person in whole or in part for the loss or damage or will prevent or reduce the loss or damage".

Section 87(2)(d) reads as follows:

"an order directing a person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage".

The appellant submitted that the Court of Appeal should take a narrow view of section 87(1) and that it could not be used to make an order where there were two independent causes of loss of which a plaintiff complains, one cause being the responsibility of the plaintiff. Alternatively the appellant submitted that under section 82(1), a plaintiff that had proved that one of the causes of loss was a breach of section 52 of the Act, was entitled by virtue of that section to an award of the whole of the loss and that section 87(1) could not be used to reduce that.

The respondent submitted that section 82(1) did not embody an "all or nothing" rule.

The Court of Appeal dismissed the appellant's appeal supporting a broad reading of section 87(1). This Court has subsequently delivered its decision in Henville and Anor v Walker and Anor (2001) 182 ALR 37, allowing an appeal by plaintiffs who suffered loss in similar circumstances to the appellant in this case.

The ground of appeal is:

• The Court of Appeal erred in construing section 87 of the Trade Practices Act 1974 (Cth) as conferring upon the Courts a general discretion to reduce the measure of damages otherwise recoverable by the Plaintiff pursuant to section 82 of the Trade Practices Act 1974 (Cth).

 

 

CAMERON v. THE QUEEN (P59/2001)

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

Date of Judgment: 3 October 2000

Date Special Leave granted: 25 October 2001

The appellant pleaded guilty to an indictment alleging that he had in his possession a quantity of methylamphetamine with intent to sell or supply it to another. He was sentenced to 10 years' imprisonment.

The facts found by the sentencing judge were that on 22 April 1999, the appellant was spoken to by police and searched after alighting from an aircraft in Perth that had come from the eastern states. He was found to be in possession of a plastic package that contained over 5,000 tablets, which were found to be 3-4% pure.

The appellant participated in a record of interview but made no admissions. The appellant had a previous record of offending. The sentencing judge referred to personal circumstances of the appellant but concluded that no mitigation would apply in respect of that as the offence was so serious that personal circumstances should pay little part. The sentencing judge imposed a term of 10 years' imprisonment but reduced that to 9 years to take into account the plea of guilty.

The appellant applied for leave to appeal against the sentence on the ground that the sentencing judge had given insufficient credit for the early plea of guilty. The circumstances relating to the plea were that the appellant appeared shortly after his arrest in the Court of Petty Sessions in April 1999 and was charged there on a complaint that he had in his possession ecstasy, the incorrect substance. The certificates of analysis showing the correct substance to be methylamphetamine, were produced on 28 June 1999, although it is not clear when these were provided to the appellant's lawyers.

The appellant appeared before the court on 4 June, and on 2 July elected a preliminary hearing. On 30 July there was a further remand to 31 August followed by a further 5 remands. On 10 November the appellant's solicitors communicated to the prosecution that the appellant wished to enter a plea of guilty to the charge of "possession of a prohibited drug with intent to sell or supply" and asked that the matter be listed on 16 November for the entering of that plea. They also requested that the charge be amended to methylamphetamine. This occurred.

On appeal, it was submitted to the Court that it was not possible for the appellant to enter a plea until the charge had been amended. This submission was rejected by the Court of Criminal Appeal who accepted the sentencing judge's conclusions in relation to the reduction of sentence for a plea of guilty.

The ground of appeal is:

• The Court of Criminal Appeal erred in finding that the learned sentencing Judge had not erred in the exercise of his discretion, when sentencing the appellant to a term of 9 years imprisonment, finding that the learned sentencing Judge gave sufficient credit (1 year or 10%) for the appellant's fast track plea of guilty.

TAME v. MORGAN & ANOR (S83/2001)

Court appealed from: Supreme Court of New South Wales (Court of Appeal)

Date of Judgment: 12 May 2000

Date of grant of special leave: 6 April 2001

On 11 January 1991 the appellant was driving in Richmond when a vehicle driven by Terence Lavender travelling in the opposite direction collided with her. Each driver was conveyed to hospital for treatment. Blood alcohol readings were taken. Mr Lavender was at fault; he was on the wrong side of the road and affected by alcohol (his blood alcohol reading was 0.14).

The appellant instructed a solicitor, Mr Weller. Since Mr Lavender was driving an uninsured vehicle, the appellant sued the Nominal Defendant. The claim was handled by NZI Insurance. NZI made a written admission of liability on 11 June 1991 and ultimately the claim against the Nominal Defendant was settled in August 1994 with a substantial sum being paid to the appellant.

The appellant suffered significant leg and back injuries. There were many attendances for physiotherapy. Around May 1992 there were problems with payment of physiotherapy accounts. During a conversation with the appellant in June 1992, Mr Weller told her that the P4 (the police report of the accident) recorded that she had a blood alcohol reading of 0.14, when in fact it should have recorded that she had a nil reading. The appellant rang the police at Windsor. Constable Morgan told her that her blood alcohol reading was nil and that the information about it on the P4 form was a mistake.

NZI's solicitor re-confirmed that liability was admitted on 29 July 1992. In early 1993 Mr Weller sought and received from the Police Service a formal assurance that the mistake on the P4 had been rectified, coupled with an apology. However, the appellant continued to think that the delay in meeting the physiotherapy bills was connected with the false information on the P4 form. (In truth the insurer considered the treatment unnecessary.) She became depressed and she was diagnosed with a depressive illness in June 1995. She sued Constable Morgan and the State of New South Wales for the negligent infliction of psychiatric disorder.

The trial judge held that the respondents were liable in negligence for the psychiatric injury suffered by the appellant as a result of her receiving knowledge of the mistake in the P4 report.

The Court of Appeal held unanimously that causes of action for pure psychiatric illnesses are distinct from claims based upon physical injury and that no duty of care is owed to a plaintiff unless a person of normal fortitude would suffer psychiatric injury by the negligent act or omission of the defendant (unless the defendant has knowledge of any particular susceptibility of the plaintiff). The Court found that the injury suffered by the appellant would not have been suffered by a person of normal fortitude and that no duty of care was owed to the appellant as the risk of psychiatric illness which she suffered was not reasonably foreseeable.

The grounds of appeal are:

• Causes of action for pure psychiatric illness are distinct from claims based on physical injury;

• No duty of care is owed to a plaintiff unless a person of normal fortitude would suffer psychiatric injury by the negligent act or omission of the defendant unless the defendant has knowledge of any particular susceptibility of the plaintiff;

• The "eggshell psyche" rule applies after a determination has been made that a person of normal fortitude would suffer some injury;

• The psychiatric injury suffered by the Appellant would not have been suffered by a person of normal fortitude;

• No duty of care was owed to the Appellant as the risk of psychiatric illness which she suffered was not reasonably foreseeable;

• A necessary element in a cause of action for pure psychiatric injury is that it must be occasioned by a shock in the sense of a sudden sensory perception;

• The Appellant did not suffer psychiatric injury by shock;

• The damages suffered by the Appellant were too remote to be recoverable.

ANNETTS AND ANOR v. AUSTRALIAN STATIONS PTY LIMITED (P97/2000)

Court Appealed from: Supreme Court of Western Australia (Full Court)

Date of Judgment: 21 November 2000

In August 1986, James Annetts, a 16 year old, left home to work for the respondent as a jackeroo at Flora Valley Station in the Kimberley district of Western Australia. In October 1986, he was sent by the respondent to work at Nicholson Station, a very isolated location. James was left there unsupervised and alone with only radio communication to other properties of the respondent. James decided to run away from Nicholson Station but the motor car became bogged and he died in the Gibson Desert on or about 4 December 1986. The applicants are the parents of James Annetts.

On 6 December 1986, the police made a telephone call to Mr Annetts and informed him that James was missing and it was believed he had run away. Mr Annetts collapsed when he was given this news.

In January 1987, Mr and Mrs Annetts went to the Kimberleys to the Hall Creek Police Station where they were shown some of James' belongings, including a hat covered in blood. It was only on 26 April 1987 that the motor car was found and later that day, James' remains were found. Mr Annetts returned to Hall Creek and was able to identify James from the photographs of his remains.

The applicants sued the respondent for damages on the basis that the respondent's negligence caused the death of James and that the same negligence caused each of them to suffer psychiatric injury.

On the application of the respondent, the Supreme Court of Western Australia ordered that a preliminary question be decided. That question was: On the basis of the assumption of the truth of certain of the facts alleged in the pleadings, did the respondent owe Mr and Mrs Annetts a duty of care?

The preliminary question was heard and decided adversely to the applicants.

The Full Court dismissed the appeal. The Court found, inter alia, that it was not reasonably forseeable that the applicants might suffer a sudden sensory perception of a phenomenon so distressing, that a recognisable psychiatric illness would be caused. The Court also found that, in order to establish the necessary degree of proximity to recover damages, the person who has suffered psychiatric injury must directly perceive the distressing phenomenon or its aftermath and on this basis, the applicants failed to establish the necessary degree of proximity.

The application has been referred to a Full Court to be argued as if on appeal.

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

• Whether the common law of Australia governing the recovery of damages for the negligent infliction of injury should continue to require different rules to apply, depending upon whether the injury is characterised as physical injury or psychiatric injury.

SGH LIMITED (formerly known as SUNCORP BUILDING SOCIETY LIMITED) v. THE COMMISSIONER OF TAXATION (B19/2001)

Date of Case Stated: 21 March 2001

In 1976, a financial crisis developed which involved seven Queensland building societies incorporated under the Building Societies Act 1886 (Qld). To avoid the impending collapse of these institutions and to provide stability and investor confidence in the building society industry, the State Government created a new building society ("SGIO Building Society") which would be closely linked to Queensland's existing State Government Insurance Office ("SGIO"). SGIO Building Society took over the assets and liabilities of the seven collapsing societies. For the purposes of the present proceedings, there is no dispute that SGIO and its successor Suncorp Insurance and Finance ("Suncorp") are properly characterised as "The State" for the purposes of Section 114 of the Constitution.

The takeover took place by way of legislative reform. Through the Building Societies Amendment Act 1976 (Qld), power was conferred upon the Registrar of Building Societies to direct the transfer of engagements or property from one building society to another, and a contingency fund to be held by the State was created for the protection of persons who contributed, lent or deposited money with the building societies. Also by legislation the SGIO Building Society was created and incorporated with particular rules and membership structure which vested control of the society in SGIO. It is the status of SGIO Building Society, later known as Suncorp Building Society, of which the applicant is the legal successor, with which these proceedings are concerned.

Between 1976 and 1985, SGIO Building Society continued to operate as a building society pursuant to these arrangements and made contributions to the contingency fund. Upon the repeal of the 1886 statute by the Building Society Act 1985 (Qld) the amount standing to the credit of the contingency fund was transferred to a new fund which was again held by the State. On 5 July 1993, after the Building Societies Fund Act 1993 (Qld) made provision for the disbursement of the contingency fund, the State paid to Suncorp Building Society an amount in excess of $23 million. A further sum in excess of $2 million was made as an ex gratia payment from the State on 28 July 1993.

On 15 March 1995 the Australian Taxation Office assessed tax on these two payments for the year ended 30 June 1994. Objection was made by the applicant on the ground that the applicant was not subject to the imposition of tax by the Commonwealth by reason of s.114 of the Constitution which says as follows:

"A state shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on any property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State."

The Australian Taxation Office disallowed the objection for various reasons including that the applicant was not the "State" within the meaning of s.114 of the Constitution and that the payments made to the applicant were bounties or subsidies assessable under Section 26(g) of the Income Tax Assessment Act 1936 (Cth) and that the tax was not, therefore, a "tax on property" for the purposes of s.114 of the Constitution.

The disallowance of this objection then gave rise to proceedings in the Federal Court and, on 21 March 2001, Justice Callinan ordered that this cause be removed into the High Court pursuant to Section 40 of the Judiciary Act 1903 (Cth) on grounds that questions arose under the Constitution, or involving its interpretation. A case was stated for the consideration of the Full Court.

The questions stated for the consideration of the Full Court are:

•  Whether SGH Limited is the "State" for the purposes of s.114 of the Constitution?

• Whether the tax in question is a "tax on property" for the purposes of s 114 of the Constitution?

ATTORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES v JOHN FAIRFAX PUBLICATIONS PTY LIMITED (S129/2001)

JOHN FAIRFAX PUBLICATIONS PTY LIMITED v ATTORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES (S124/2001)

Court appealed from: Supreme Court of New South Wales (Court of Appeal)

Date of judgment: 2 August 2000

Date of grant of special leave to appeal: 1 June 2001

On 27 October 1997 the Sydney Morning Herald ("the SMH") ran a front-page article about a man committed for trial on drugs charges. That article, which was accompanied by the accused's photograph, described him as a heroin distributor, drug dealer and a drug boss. As a result, the Attorney-General for the State of New South Wales ("the Attorney-General") commenced proceedings against the SMH's publisher, John Fairfax Publications Pty Limited ("Fairfax") for contempt. That application was dismissed, with the trial judge upholding the public interest defence referred to in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Limited (1937) 37SR (NSW) 242.

The Attorney-General then submitted 5 questions of law to the Court of Appeal pursuant to s.101A of the Supreme Court Act 1970 (NSW) ("the Act"). The Court of Appeal dealt with those questions, but its judgment does not ground the matters currently before this Court. The current matters arise out of Fairfax's separate, but related proceedings ("the separate proceedings") commenced in the Court of Appeal on 17 November 1999. Those separate proceedings concerned the effect of s.101A of the Act.

Section 101A of the Act contains the following subsections:

(7) Proceedings under this section are to be held in camera, except that a legal practitioner may be present at the proceedings for the purpose of reporting the case for any lawful purpose of the Council of Law Reporting for New South Wales.

(8) A person:

1. must not publish any report of any submission made under subsection (1), and
2. must not publish any report of proceedings under this section so as to disclose the name or identity of the alleged contemnor.

(9) Any publication in contravention of subsection (8) is punishable as contempt of the Court.

Fairfax sought declarations that ss.101A(7), (8) and (9) were invalid as contravening the implied constitutional freedom of communication on government and political matters. It also submitted that those subsections were incompatible with the exercise by a State court of the Commonwealth's judicial power. On 2 August 2000 the Court of Appeal held (by majority) that those subsections did not contravene the principles in Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51. It did however find that ss.101A(7), (8)(a) and (9) were invalid because they contravened the implied freedom of political communication affirmed in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. It is from this decision that both the Attorney-General and Fairfax brought separate successful applications for special leave to appeal. Constitutional notices pursuant to section 78B of the Judiciary Act 1903 (Cth.) have been issued in respect of each matter.

The grounds of appeal in S129/2001 (the Attorney-General's matter) are:

• The majority of the court below erred in finding that proceedings in the Court of Appeal pursuant to s.101A of the Act constituted a government or political matter attracting the protection of the freedom of communication implied by the Constitution.

•  The majority of the court below erred in finding that s.107A(7) and (8)(a) were provisions which effectively burdened the implied freedom of communication about government or political matters.

• Even if s.101A(7) and (8)(a) did so burden the implied freedom, the majority of the court below erred in finding that those provisions were not reasonably appropriate and adapted to achieve a legitimate objective, namely, protecting persons who have been acquitted of criminal contempt.

The grounds of appeal in S124/2001 (the Fairfax matter) are:

• The majority of the court below erred in failing to hold that ss.101(A)(8)(b) and (9) of the Act infringed the freedom of communication about government or political matters implied by the Constitution by reason that the sections were not reasonably appropriate and adapted to achieve a legitimate end.

• The majority of the court below erred in holding that ss.101A(8)(b) and (9) of the Act were not incompatible with the exercise by that court of the judicial power of the Commonwealth.

• The majority of the court below erred in failing to hold that each of ss.101(A)(8)(b) and (9) was incompatible with the implied constitutional freedom of communication and/or the judicial power of the Commonwealth in that, having held that ss.101A(7) and (8)(a) were invalid, the majority failed to take account of the inhibition which ss.101A(8)(b) and (9) placed on reporting proceedings the subject of s.101A, as many such cases may be expected to involve public figures and/or publicly known facts which readily could be connected to any report of such proceedings so as to reveal the identity of the alleged contemnor.

SOLOMONS v. DISTRICT COURT OF NEW SOUTH WALES & ORS (S50/2001)

Court appealed from: New South Wales Court of Appeal

Date of Judgment: 13 July 2000

Date of grant of special leave: 22 June 2001

The issue in this case is whether a person charged in a State Court with an offence under a law of the Commonwealth has the same opportunity as someone charged with a State offence, if acquitted, to obtain a certificate with respect to the costs incurred in the proceedings.

On 22 July 1998 the appellant was charged in the District Court of New South Wales with two counts of being knowingly concerned in the importation of a prohibited import in contravention of s 233B of the Customs Act 1901 (Cth). At the completion of the prosecution case, Keleman DCJ directed an acquittal of the appellant on each count. The jury duly returned verdicts of not guilty on both counts.

The appellant applied to Keleman DCJ for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) ("the Costs Act"). On 24 July 1998 his Honour refused the application because, in his opinion, he had no power to grant such a certificate in respect of proceedings for the prosecution on indictment of a person charged with a Commonwealth offence. His Honour relied primarily upon the reasoning of the Court in Commissioner of Stamp Duties (NSW) v Owens [No 2] (1953) 88 CLR 168.

On 17 December 1999 the appellant sought to review the decision of the District Court by summons filed in the Court of Appeal with an affidavit to explain the reasons for delay in seeking the relief.

On 31 July 2000 the Court of Appeal delivered judgment dismissing the summons by majority (Mason P and Foster AJA), Sheller JA dissenting. The question on which the members of the Court divided was whether ss 39(2), 68(2) or 79 of the Judiciary Act (Cth) ("the Judiciary Act") or a combination of those provisions rendered the Costs Act applicable to proceedings in relation to federal offences.

The grounds of appeal are:

•  The majority in the Court of Appeal (Mason P and Foster AJA, Sheller JA dissenting) erred in holding that the power conferred by s. 2 of the Costs Act in any proceedings relating to any offence:-

(a) was not part of the jurisdiction of the Court with respect to the trial of a person charged with an offence against the laws of the State, so as to not be part of "the like jurisdiction" with respect to persons who are charged with offences against the laws of the Commonwealth, vested in the District Court by s. 68(2) of the Judiciary Act;

(b) was not part of the laws of the State made binding on all Courts exercising federal jurisdiction in that State, in all cases to which they are applicable, by s.79 of the Judiciary Act.

• The majority of the Court further erred in that:-

1. the President erred in concluding that-

(i) power to grant a certificate under the Costs Act was not "with respect to" any part of federal jurisdiction because it did not "form a necessary part of the jurisdiction with repect to trial and conviction on indictment" (Judgment, para 21); and

(ii) even if the District Court were exercising federal jurisdiction, s. 79 would not pick up s. 2 of the Costs Act and apply it to an offence under Commonwealth law because that would purport to change the meaning of the State law. (Judgment, paras 12 and 13).

2. Foster AJA erred in-

(i) applying the reasoning of the majority of this Court in Gurnett v The Macquarie Stevedoring Company Pty Ltd [No.2] (1956) 95 CLR 106 in relation to the operation of s. 37 of the Judiciary Act, to the operation of s. 68(2); and

(ii) failing to find that the power conferred on the District Court by the Costs Act was, in the words of Dixon CJ in Gurnett, "consequential upon and intimately bound up with" the disposition of the trial.

 

 

FIREBELT PTY LTD v. BRAMBLES AUSTRALIA LIMITED (trading as CLEANAWAY) & ORS (B52/2001)

Court Appealed from: Federal Court of Australia (Full Court)

Date of Judgment: 22 November 2000

Date of grant of special leave: 27 June 2001

On 24 February 1995, the appellant was registered as the patentee in respect of an invention described in the provisional specification as follows: -

"This invention relates to a refuse vehicle and in particular, to a side loading refuse vehicle and more particularly, but not limited to, an automated side loading refuse vehicle for simultaneous collection, but separate storage of garbage and/or recyclable wastes in the one vehicle."

In June 1995 the appellant commenced proceedings in the Federal Court of Australia against the first and second respondents alleging that they were infringing the appellant's petty patent by their use of a side loading refuse vehicle. The first and second respondents each filed their defence, which contained amongst other grounds a denial of any infringement of the petty patent.

On 16 November 1998, the first respondent filed a further amended cross claim, seeking revocation of the petty patent on the basis that it was not a patentable invention within the meaning of s 138(3) of the Act on a number of grounds, including want of inventive step.

The proceedings were heard by Dowsett J in the Federal Court. The preliminary issue before his Honour was the first respondent's cross claim for revocation of the patent. On 24 December 1998, Dowsett J held amongst other things that the claimed invention lacked an inventive step and did not describe the best method known to the applicant of performing the invention. Orders made by His Honour on 10 June 1999 included revocation of the patent and dismissal of the appellant's original application.

Dowsett J's decision was based on evidence of the state of "prior art" and an acceptance of evidence that a loading mechanism incorporating a lid opening device was well known prior to February 1992 and that the solution of a loading mechanism incorporating a lid opening device (said to be the "inventive step") would be obvious by reference to previous experience in the industry.

The appellant appealed to the Full Court against the finding of lack of inventive step and that the specification did not describe the best method of performing the invention. The respondent filed a notice of contention claiming errors on the part of the trial judge in relation to various positive findings made by him in relation to the appellant's claim. The second and third respondents (the Cooloola Shire Council and the State of Queensland) did not participate in the appeal.

The Full Court of the Federal Court dismissed the appellant's appeal and as a result, and in accordance with the first respondent's wishes, did not deal with the issues raised in the notice of contention.

The grounds of appeal are:

• Whether the Full Court of the Federal Court erred in formulating its own ex post facto "notional problem" approach for the purpose of ascertaining whether there was an inventive step in a patent for a combination, under the Patents Act 1990, or whether the Court should have identified upon the evidence a real existing practical problem (or the non-recognition of any problem) in the art at the priority date;

• Whether the Full Court of the Federal Court erred:

a. in failing to apply Minnesota Mining and Manufacturing Co v. Beiersdorf (Australia) Ltd (1980) 144 CLR 253 in the application of s.7 of the Patents Act 1990 in relation to the test for inventive step in the case of a patent for combination; and

b. in assuming common general knowledge at the relevant time rather than requiring that knowledge to be proved by admissible evidence; and

c. in failing to consider the nature of the evidence required to prove common general knowledge; and the requirements of s.7 of the Patents Act 1990, especially sub-sections 7(2) and 7(3), and in failing to require evidence accordingly;

 

• Whether the Full Court of the Federal Court erred in construing and/or applying s.7 of the Patents Act 1990 in relation to inventive step in a patent for combination so as to permit, as information under sub-section 7(2) to be considered together with common general knowledge, part only of an item of prior act (being part only of a combination); and

• Whether the Full Court of the Federal Court erred in that it did not accurately distinguish between the test for novelty and the test for inventive step when applied to an invention, especially an inventive combination, and failed to apply the appropriate test to determine whether the invention was obvious.

 

Mobil Oil Australia Pty Ltd v. The State of Victoria & Ors (M141/2000)

Macleod v. Australian Securitites Commission (P55/2001)

Attorney-General for the State of Queensland v. Australian Industrial Relations Commission & Ors (B53 & B54/2001)
Minister for Employment, Workplace Relations and Small Business v. Australian Industrial Relations Commission & Ors (B56-B58/2001)

The Queen v. Chai (S180/2001)

Stork Electrical Pty Ltd v. Leighton Contractors Pty Ltd & Anor (B87/2001)

TKWJ v. The Queen (S176/2001)

BHP Billiton Pty Limited v. Commissioner of Taxation (M91/2001)