(Other than Applications for Special Leave to Appeal)

FEBRUARY 2000


EASTMAN v. THE QUEEN (C5/1997)

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

Date of judgment: 25 June 1997

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

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

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

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

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

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

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

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

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

Date of judgment: 29 October 1998

Date of grant of special leave: 14 May 1999

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

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

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

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

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

The grounds of appeal are:

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

 

BOND v. THE QUEEN (P57/1999)

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

Date of judgment: 22 August 1997

Date special leave granted: 20 October 1999

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

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

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

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

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

The grounds of appeal include:

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

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

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

 

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

ZONEFF v. THE QUEEN (A23/1999)

Court appealed from: Court of Criminal Appeal, South Australia

Date of judgment: 1 December 1998

Date of grant of special leave: 13 August 1999

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

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

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

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

The ground of appeal is:

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

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

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

Date of judgment: 19 June 1998

Date special leave granted: 24 June 1999

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

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

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

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

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

The grounds of appeal are:

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

 

ALLESCH v. MAUNZ (C15/1999)

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

Date of judgment: 26 November 1998

Date special leave granted: 6 August 1999

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

In April 1995 the appellant commenced acting for himself.

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

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

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

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

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

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

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

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

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

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

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

 

GUSS v. JOHNSTONE (M55/1999)

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

Date of judgment: 13 November 1997

Date of grant of special leave: 14 May 1999

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

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

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

The grounds of appeal include:

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

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

 

 


(Other than Applications for Special Leave to Appeal)

FEBRUARY/MARCH 2000


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

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

Date of judgment: 26 March 1999

Date of grant of special leave: 10 September 1999

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

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

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

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

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

The grounds of appeal include:

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

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

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

 

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

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

Date of judgment: 9 April 1999

Date of grant of special leave: 10 September 1999

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

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

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

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

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

The grounds of appeal include:

The Full Court of the Federal Court erred -

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

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

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

 

HUGHES v. THE QUEEN (P58/1999)

Order for Removal: 20 October 1999

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) The Commonwealth?

(b) The State of Western Australia?

(c) The Australian Capital Territory?

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

 

SCOTT & ORS v. DAVIS (A16/1999)

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

Date of judgment: 26 June 1998

Date of grant of special leave: 18 June 1999

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

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

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

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

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

The grounds of appeal are:

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

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

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

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

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

 

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

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

Date of Judgment: 12 October 1998

Date of Grant of Special Leave: 6 August 1999

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

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

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

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

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

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

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

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

The ground of appeal is:

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

 

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

Court Appealed from: Court of Appeal, Victoria

Date of Judgment: 7 October 1998

Date of grant of special leave: 10 September 1999

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

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

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

The grounds of appeal include:

  • In circumstances where:

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

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

 

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

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

(b) constituted a novus actus interveniens.

 

RHMcL v. THE QUEEN (M95/1999)

Court Appealed from: Court of Appeal, Victoria

Date of Judgment: 9 October 1998

Date special leave granted: 10 September 1999

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

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

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

The ground of appeal is:

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

AGAR & ORS v. HYDE (S159/1999

AGAR & ORS v. WORSLEY (S160/1999)

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

Date of judgment: 19 October 1998

Special leave granted: 10 September 1999

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

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

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

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

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

The grounds of appeal include:

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

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

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

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

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

 

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

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

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

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

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

Date of Judgment: 22 October 1999

Date of grant of special leave: 10 December 1999

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

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

The appellant was unsuccessful at first instance.

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

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

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

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

The ground of appeal is:

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

(Other than Applications for Special Leave to Appeal)

APRIL 2000


YU SHING CHENG v THE QUEEN (A8/99)

GANG CHENG v THE QUEEN (A9/99)

CHAN v THE QUEEN (A25/99)

Court appealed from: Court of Criminal Appeal, South Australia

Date of judgment: 13 May 1999

All three applicants (together with 2 others) were charged with being knowingly concerned in the importation of a prohibited import, contrary to s233B(1)(d) of the Customs Act 1901 (Cth) ("the Act"). It was also alleged that the amount concerned was a "commercial" quantity thereby potentially attracting the highest range of penalties provided in s235 of the Act. The structure of the Act is that s233B prescribes the relevant offences and refers the reader to s235 for the appropriate penalty. The appropriate maximum penalty set out in s235 depends on the nature of the substance in relation to which the offence was committed, the quantity of the substance, in some cases whether there has been a previous conviction and in some cases the purpose for which the offence was committed. The applicants asserted that they were concerned with a small amount of prohibited substance, but unbeknown to each of them, the sealed items with which each was involved later turned out to have originally contained over 9 kilos of heroin.

The applicants sought to challenge, by way of demurrer, the validity of s233B(1)(d) in combination with s235, as being contrary to s80 of the Constitution. The applicants asserted that the decision of the High Court in Kingswell v. R (1985) 159 CLR 265 (which had previously upheld the validity of those provisions) was wrongly decided. The trial judge overruled the demurrer and upheld the provisions, following Kingswell. The applicants thereupon pleaded guilty to the charges. They were subsequently sentenced on the basis of being penalised for the full 9 kilos of the drug, notwithstanding that the sentencing judge accepted that each applicant positively believed he was only concerned with a small quantity. The applicants each appealed against conviction and sentence.

The applicants sought to argue before the Court of Criminal Appeal that s235 of the Act as it applied to them was unconstitutional as it purports to impair their right to trial, by jury, of every element of the offence alleged against them, such right being guaranteed by s80 of the Constitution. The Court of Criminal Appeal (Doyle CJ, Bleby & Wicks JJ) dismissed the appeals against conviction.

The questions of law said to justify the grant of special leave in each case are:

  • Are sections 233B & 235 of the Customs Act 1901 (Cth) in reserving determination of the quantity of narcotic goods and hence the seriousness of the offence and the relevant penalty range to the judge rather than the jury contrary to section 80 of the Constitution 1901 (Cth); and
  • Does the Crown have to prove beyond reasonable doubt: (a) knowledge that the quantity of narcotic goods was a commercial quantity; (b) a disputed factual circumstance as aggravating the offence.
  • The applications for special leave came before Gaudron, Kirby & Hayne JJ on 8 October 1999 and at that hearing the applications were referred to an enlarged panel of the Court.
  • Notices of Constitutional Matter have been given. The Commonwealth will be intervening at the referred hearing of these applications for special leave to appeal.

GRINCELIS v. HOUSE (C20/1999)

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

Date of Judgment: 1 July 1998

Date of grant of special leave: 8 October 1999

The appellant, then a Canberra Solicitor, suffered personal injuries including brain damage in a motor vehicle collision on 15 February 1989. This created a need for full time supervision and care. His damages included a component in respect of past care. Family members, on a gratuitous basis, had cared for the appellant. There was no applicable statutory restriction or modification to the calculation of damages for care.

The matter initially came before a Master of the Supreme Court of the Australian Capital Territory who made an award for damages which did not include interest on the past care component. There was an appeal and cross appeal to the Full Court of the Supreme Court, who varied the overall award but did not allow interest on the past care component. A further appeal and cross appeal to the Full Court of the Federal Court resulted in an award (by majority) of interest on past care at 2%, the rate for damages such as general damages, which are assessed as at the date of trial. The minority of the Court awarded interest on damages for past care at commercial rates.

The respondent has filed a notice of cross appeal.

The grounds of appeal are:

  • That the Full Court misapplied the distinction between the rate at which interest should be calculated on damages for past loss in respect of:

(a) damages, such as general damages, which although referable in whole or in part to the past are assessed at values current at the date of trial (which attract an interest rate of 2%); and

(b) damages, such as damages for past care and past economic loss, which are calculated by reference to actual historical rates from time to time (which attract commercial interest rates).

The ground of the cross appeal is:

  • That the Full Court erred in allowing any interest in relation to the damages awarded to the appellant for past services which had been provided to the appellant gratuitously.

JONES v. BARTLETT & ANOR (P59/1999)

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

Date of Judgment: 22 February 1999

Date of grant of special leave: 21 October 1999

In November 1992, the appellant's parents entered into a Residential Tenancy Agreement under the Residential Tenancies Act 1987 (WA) to lease premises at Mount Pleasant owned by the respondents. The initial tenancy was for a period of 12 months upon the expiration of which the appellant's parents remained in possession of the premises under a periodic tenancy on a fortnightly basis, otherwise subject to the terms of the original Residential Tenancy Agreement.

The agreement provided for the use of the premises as a private dwelling to be occupied by not more than three persons. There was no requirement that the respondents or agent approve the third person.

Prior to the expiration of the initial 12 month period, the appellant went to live with his parents at the premises and remained there.

The premises was a house built in the late 1950's or early 1960's and there was a glass door from the dining room to the outside of the home. The door was constructed with a wooden frame and a full length glass pane which was not of laminated or strengthened glass. The glass was of the type recommended by the first Australian Standard in 1957 (which was concerned only with wind loads and not human impact). At the date the premises were let to the appellant's parents, the 1989 Australian Standard required replacement glass in such a door to be 10mm thick or toughened or laminated safety glass.

In November 1993, the appellant's mother went through the dining room door on her way outside. The appellant followed, wrongly assuming that the door was open as his mother had just used it. The appellant suffered a severe injury to his right leg caused by the shattering glass.

The appellant issued proceedings in the District Court of Western Australia for damages resulting from the respondent's:

(a) breach of the Residential Tenancy Agreement; and/or

(b) breach of the respondents' duties as landlords and occupiers; and/or

(c) breach of the respondents' common laws of duties of care saved by the Occupiers Liability Act 1985 (WA).

The appellant was successful, the District Court finding that the respondents owed a duty to the appellant pursuant to s5(1) of the Occupiers Liability Act 1985. There was an apportionment made for contributory negligence.

On appeal to the Full Court of the Supreme Court of Western Australia, the respondents were successful. Essentially, the Full Court held that the appellant's actions were the sole cause of the injury. The Full Court held that the respondents' failure to organise an expert inspection of the door did not constitute a breach of duty.

The grounds of appeal include:

  • That the Full Court erred at law in concluding that the appellant could not enforce the "residential tenancy agreement".
  • That the Full Court erred at law in concluding that the respondents had not breached the duties they owed as "occupiers" of the premises to the appellant as a lawful entrant pursuant to sub-section 5(1) of the Occupiers Liability Act 1985 (WA).
  • That the Full Court erred at law and in fact in concluding that:-

(a) the risk that a person would walk into the door with sufficient force to shatter the glass pane was extremely unlikely; and

(b) there was a very remote prospect of a collision between a person and the glass in the door,because these conclusions were precluded by the proper inferences which could be drawn from the facts clearly ascertained at trial.

 

  • The Full Court erred at law and in fact in concluding that this was not a case where the risk of injury being received would be reduced by a warning by the respondents to the appellant or his parents.
  • That the Full Court erred at law in concluding that, if duties owed by the respondents as occupiers and landlords to the appellant pursuant to the Occupiers Liability Act 1985 (WA) were non-delegable, that such duties did not impose a "higher standard of care" pursuant to sub-section 9(3) of the Occupiers Liability Act 1985 (WA) thereby constituting an overriding common law duty owed by the respondents to the appellant.
  • The Full Court erred at law in not overturning the Commissioner's finding of contributory negligence against the appellant.


PILMER & ORS v. THE DUKE GROUP LIMITED (IN LIQUIDATION) & ORS (A46/1999)

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

Date of judgment: 13 August 1999

Date of grant of special leave: 30 November 1999

This appeal arises from litigation relating to loss suffered by Kia Ora Gold Corporation NL ("Kia Ora") in its successful takeover bid for Western United. Prior to commencing the takeover procedure Kia Ora retained accountants practising in Perth under the name of Nelson Wheeler Perth ("NWP") to prepare a report for the shareholders in Kia Ora. The takeover offer proposed by Kia Ora to Western United Limited ("Western United") shareholders was four fully paid ordinary shares in Kia Ora for every fully paid ordinary share in Western United or five fully paid ordinary shares in Kia Ora for two fully paid ordinary shares in Western United together with $1.20 for each Western United share. In their report NWP concluded that the proposed takeover price was fair and reasonable in the circumstances and placed a value on Western United shares of $3.22 per share.

On 9 October 1987 Kia Ora sent out a notice to shareholders calling a meeting to vote on the proposed takeover. The meeting was scheduled to take place on 26 October 1987. On 19 October 1987 the stock market crash occurred, having an immediate adverse effect on the market price of Kia Ora and Western United shares and significantly reducing the value of Western United. Despite the stock market crash, Kia Ora's directors proceeded with the meeting on 26 October 1987, which resolved to authorise the directors to make the offer. The takeover was successfully completed by January 1988.

Kia Ora (now the Duke Group Limited (In Liquidation)) commenced proceedings against NWP. Kia Ora alleged that NWP had prepared the report negligently, in breach of the contract of retainer and in breach of its fiduciary duty to Kia Ora. Kia Ora alleged that it suffered loss as a result of the takeover resulting from the accountant defendants' breach of the alleged duties.

The trial judge (Mullighan J) found, inter alia, that NWP were negligent in the discharge of their obligations to Kia Ora and that they were liable to Kia Ora in contract and in tort. His Honour rejected Kia Ora's claim that there was a fiduciary relationship between Kia Ora and NWP.

NWP lodged an appeal from the trial judge's findings on liability. The plaintiff cross-appealed against the finding that there was no fiduciary relationship between Kia Ora and NWP. All the parties to the appeals challenged the trial judge's assessment of damages.

On 20 May 1999 the Full Court of the Supreme Court of South Australia (Doyle CJ, Duggan and Bleby JJ) delivered reasons for decision in the appeals. The Full Court upheld the trial judge's findings of negligence and breach of contract. The Full Court upheld the plaintiff's argument that NWP owed a fiduciary duty to Kia Ora. On 13 August 1999 the Full Court made orders dismissing the appeals brought by NWP.

On 30 November 1999 NWP were granted special leave to appeal from part of the judgment and order of the Full Court of the Supreme Court. The grant of special leave was limited to one ground concerning the quantification of damages.

The ground of appeal is:

  • The Court below erred in law in holding that Kia Ora suffered loss by the issue and allotment of its shares to Western United shareholders as part of the consideration for the takeover of Western United whereas the Court below should have held that the Kia Ora did not suffer any loss by the issue and allotment of its shares to the shareholders of Western United.

 

 

SIMOS v. YATES (S29/1999)

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

Date of judgment: 5 August 1998 & 30 November 1998

Date of grant of special leave: 12 February 1999

Proceedings were brought in the Federal Court by Yates Property Corporation (YPC) against legal advisers who had formerly acted for it in proceedings brought by it in the Land & Environment Court of NSW seeking compensation upon the resumption of certain land at Darling Harbour. The three respondents in the proceedings were Abbott Tout, the firm of solicitors on the record in the resumption proceedings; Theodore Simos, senior counsel and John Webster, junior counsel. The proceedings were primarily in negligence and for misleading and deceptive conduct. YPC also claimed it had been inadequately compensated in the resumption proceedings by virtue of the failure of its former advisers to pursue a claim for compensation based on the special value of the land to it. On 5 June 1997, the trial judge dismissed the application against all three respondents.

On 14 August 1997 the trial judge ordered that YPC pay the costs of the respondent on certain nominated bases. The trial judge also ordered that Ian Francis Yates, the principal of YPC who was not a party to the proceedings, be jointly and severally liable with YPC to meet the costs.

YPC appealed from the whole of the judgment of the trial judge. YPC and Ian Yates appealed from the judgment of the trial judge on costs. These three appeals were consolidated. On 7 October 1997 the Federal Court ordered that YPC provide security for costs in respect of each respondent to YPC's appeals. On 16 January 1998 that order was varied. YPC failed to provide security and on 13 February 1998 the Court ordered that YPC's appeals be dismissed.

Ian Francis Yates' appeal against personal liability for costs (the only appeal to which the appellant was a party) was heard on Friday 20 March 1998 by the Full Federal Court. The Full Court set aside the order for costs made in favour of Mr Simos against Ian Francis Yates.

Special leave to appeal was granted on the grounds, inter alia, that:

  • that part of the judgment which allowed the appeal by Mr Yates gave no reasons for the proposed order in that regard; and
  • the Court lacked power to set aside the final order of the trial judge.

SPIES v. THE QUEEN (S263/1999)

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

Date of judgment: 17 September 1998

Date of grant of special leave: 10 December 1999

The appellant, a director of Stirling Nicholas Duty Free Pty Limited (SNDF), was convicted under s176A of the Crimes Act 1900 (NSW) of the offence of defrauding the creditors of SNDF in their dealings with the company. (An alternative charge of an offence under s229(4) of the Companies Code concerning improper use of position by an officer of a corporation to gain an advantage was presented. However, as the appellant was convicted on the s176A charge and the second charge was an alternative, no verdict was taken on this charge).

The Crown case turned on the contention that the appellant caused SNDF to purchase the shares in Stirling Nicholas Holdings Pty Limited (SNH) with the purpose of making himself a secured creditor at the time when the company was about to go into liquidation and entered upon another transaction as a means to give the appearance of worth to the share deal. The direction to the jury was, broadly, that the jury was charged to find that the accused intended to defraud creditors. The appellant was sentenced to 18 months imprisonment to be served by periodic detention.

The appellant appealed. The Court of Criminal Appeal found that the direction which the trial judge had given to the jury was defective. It held that as a specific mechanism for the fraud had been identified, the jury should have been given a direction of the elements of knowledge that are implicit in that case. The trial judge should have directed the jury that the state of mind of the appellant encompassed at least an understanding of the circumstances which made the value of the shares fictitious. It held that the trial judge had failed to do this and allowed the appeal from the conviction.

The Court further found that the finding of the jury on the charge of intending to defraud creditors encompassed a finding that there was an improper use of position and that the objective of the transaction was intended to benefit the appellant. Therefore it held that it could be said that the jury was satisfied of facts which proved the appellant guilty of the alternative charge under s229(4) of the Companies Code. Accordingly, the Court (pursuant to s7(2) of the Criminal Appeal Act 1912) substituted for the verdict of the jury a verdict that the appellant was guilty of the alternative charge on the indictment.

The grounds of appeal include:

  • The Court of Criminal Appeal erred in concluding that the finding of the Jury on a charge of fraud by the appellant must have encompassed a finding that there was improper use of the position of the appellant as a director within the meaning of s229(4) Companies Code (NSW), thus enlivening the Court of Criminal Appeal's power under the Criminal Appeal Act 1912 (NSW) s7(2) to substitute a verdict on the alternative charge made under s229(4) Companies Code (NSW).
  • The Court of Criminal Appeal erred in concluding that the Jury's finding that the appellant had the requisite subjective intent to defraud the creditors of SNDF for s176A Crimes Act purposes was without more determinative of the objective test of intent under s229(4) Companies Code against the appellant.
  • The Court of Criminal Appeal erred by equating a subjective intent on the part of the appellant to defraud the creditors of SNDF with an objective intent on the part of the appellant to improperly use his position to advantage himself as an officer of SNDF.

RE THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; EX PARTE AALA (S185/1999)

The prosecutor is an Iranian citizen. He arrived in Australia on 8 August 1991 on a visitors visa. He married in Australia on 17 September 1991, but is now divorced. On 13 August 1992 he attacked his wife with a knife and was convicted of malicious wounding and sentenced to 21 months imprisonment. On 8 September 1996 he was released from prison and taken into migration detention. He is still in migration detention.

On 20 August 1996 (shortly before his release from prison) the prosecutor applied for a protection visa. He claimed that should he be returned to Iran his life will be in danger. He sought to demonstrate that he had a well-founded fear of persecution for a Convention reason by reference to three particular sets of activities in which he had been involved over a span of almost twenty years. These were: work he had performed for Savak (the Shah's secret police) for approximately six months in 1973; support that he had given the Mujahadeen (the largest group opposing the government in Iran) in 1981 or 1982; and, illegal real estate activities in which he had been engaged between 1981 and 1988-9 which involved him in selling properties in Iran which had belonged to the Shah or members of the Shah's family.

The prosecutor's application for a protection visa was refused on 2 October 1996. On 4 October 1996 he applied to the Refugee Review Tribunal for a review of this decision. The Tribunal affirmed the decision. The prosecutor sought a review of that decision by the Federal Court. At first instance he was unsuccessful. He appealed and on 18 December 1997 the Full Federal Court ordered that the decision of the Tribunal be set aside and the matter be remitted to the Tribunal to be dealt with according to law. On 3 April 1998 the Tribunal differently constituted, and having heard further evidence from the prosecutor, again affirmed the decision to refuse the prosecutor a protection visa. The prosecutor made an application to the Federal Court for review. This application came before Branson J at first instance. On 17 December 1998 her Honour affirmed the decision of the Tribunal. An appeal to the Full Federal Court was dismissed on 3 June 1999.

The prosecutor seeks writs of prohibition, mandamus and certiorari against the Refugee Review Tribunal and the Minister for Immigration and Multicultural Affairs on the grounds that, inter alia, the decision of the Refugee Review Tribunal was made in breach of the rules of natural justice. The main basis for the denial of natural justice ground appears to be the prosecutor's contention that the (2nd) Tribunal misled him by making a statement that it had read all of the Federal Court papers and that this created a legitimate expectation that the hearing would be determined on the evidence before the Tribunal on the old and new Tribunal files and on the papers before the Federal Court. The prosecutor argues that part of the papers before the Federal Court were various letters that the prosecutor had sent off to the Federal Court.

On 21 December 1999 McHugh J granted an order nisi.

 

COAL & ALLIED OPERATIONS PTY LIMITED v. THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION & ORS (S158/1999)

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

Date of judgment: 6 November 1998

Date of grant of special leave: 10 September 1999

In 1996 and 1997 the 2nd, 3rd and 4th respondents (the unions) and their members employed by the appellant at the Hunter Valley No 1 Coal Mine made industrial claims, supported by industrial action, on the appellant with respect to wages and conditions of employment at that mine.

In early 1997 the unions, by notice to the appellant, initiated bargaining periods pursuant to s170MI of the Workplace Relations Act 1996. The purpose of initiating the bargaining periods was the desire of the unions to negotiate an agreement in relation to the wages and conditions of their members at the mine. The existence of these bargaining periods meant that the Commission could not exercise arbitration powers in relation to any matter that was in dispute and that the unions had immunity from civil suit in relation to industrial action taken during the bargaining periods.

On 31 October 1997 the unions applied to the Commission for the termination of the bargaining periods under the Act. Boulton J found that the industrial action at the mine was threatening to cause significant damage to an important part of the Australian economy. He granted the applications and terminated the bargaining periods.

The appellant appealed from the orders terminating the bargaining periods, and on 29 January 1998 a Full Bench of the Commission upheld the appeal and ordered that the orders of Boulton J be quashed.

The unions then applied to the High Court for orders nisi for writs of prohibition, certiorari and mandamus in relation to the decision and on 23 March 1998 those applications were remitted to the Federal Court. The Full Federal Court on 6 November 1998 ordered the issue of writs of certiorari and mandamus directed to the Full Bench. The Full Court held that the Full Bench had no general supervisory role over the exercise of discretionary powers by single members of the Commission and that the appeal to the Full Bench in the present case was to be regarded as an appeal from the exercise of a discretion and governed by House v. The King (1936) 55 CLR 499. The Full Court held that the Full Bench had erred in determining that the appeal before it was by way of a re-hearing.

The grounds of appeal include:

  • The Full Court erred in holding that the Full Bench had constructively failed to exercise jurisdiction under s45 of the Workplace Relations Act ("the Act"), and that this was a proper case for mandamus.
  • In the circumstances where two members of the Full Bench had purported to apply House v. The King in the appeal before it, the Full Court erred in critically reviewing in the manner of a court of appeal the process by which the Full Bench held that the conclusions and findings at first instance in the Commission were not reasonably open on the evidence in the case.
  • The Full Court erred in denying the proposition that, in an appeal under s.45 of the Act involving a decision under s.170MW of the Act, the Full Bench was entitled to review the facts found at first instance in the Commission and to assess, or to re-assess the sufficiency of those facts for the purposes of the relevant test contained in s.170MW.


(Other than Applications for Special Leave to Appeal)

MAY 2000


RE TRANSWORLD MARINE AGENCY NV; EX PARTE ROLFE (S176/1999)

RE ROLFE; EX PARTE TRANSWORLD MARINE AGENCY COMPANY NV (S196/1999)

The proceedings between Mr Rolfe and Transworld Marine Agency NV ("Transworld") began in the Supreme Court of Victoria on 2 September 1997. Mr Rolfe claimed damages for breach of contract against Transworld. On 8 September 1997, by order of Gillard J, the proceedings were transferred to the Federal Court pursuant to the provisions of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Vic) s5(1). Thereafter the proceedings continued in the Federal Court.

The matter was heard in the Federal Court by Tamberlin J. On 19 May 1998 he ordered that Transworld pay Mr Rolfe certain large sums of money together with interest. Transworld appealed to the Full Court of the Federal Court asserting various errors on the part of Tamberlin J. It sought substituted orders that Mr Rolfe's claim against Transworld be dismissed in its entirety. The appeal was heard by the Full Court on 2 and 3 November 1998. The decision was reserved. This Court's decision in Re Wakim was announced on 17 June 1999. That decision led to legislation in a number of the States designed to preserve, so far as is constitutionally possible, the status quo concerning parties affected by it.

Notwithstanding the decision in Re Wakim, the Full Court of the Federal Court proceeded to list its decision in the appeal for judgment. This occurred on 14 September 1999. The Court indicated that it would propose to announce orders allowing the appeal in part. However, it postponed the formalisation of its orders to allow the parties to file submissions on what should be done in the light of the decision in Re Wakim.

On 7 October 1999 Mr Rolfe filed an application for a writ of prohibition claiming relief on the ground that, in the light of the decision of the Court in Re Wakim, the Full Court of the Federal Court did not have jurisdiction to hear and determine the appeal.

In November 1999 Transworld filed an application seeking an order that the declarations and orders made by Tamberlin J, at first instance, be quashed in the event that the Court makes an order for prohibition in the terms claimed by Mr Rolfe. Transworld claims that should it be determined that the Full Court does not have jurisdiction to determine the appeal by Transworld against the orders of Tamberlin J, then Tamberlin J, likewise, did not have jurisdiction to make those declarations and orders. Transworld further claims that in the event that the orders made by Tamberlin J are an ineffective judgment within the meaning of s4 of the Federal Courts (State Jurisdiction) Act 1999 (Vic) and as such a valid judgment of the Supreme Court of Victoria by virtue of s6 of the Act, the Federal Courts (State Jurisdiction) Act 1999 (Vic) (and any corresponding legislation passed by the Parliament of any other State) is invalid as beyond the power of the Parliaments of any of the States.

Notices of a constitutional matter have been filed and served by the applicants in both proceedings. Most Attorneys-General have notified that they will intervene and have filed written submissions.

 

RESIDUAL ASSCO GROUP LIMITED v. SPALVINS & ORS (A5/2000)

Case Stated: 3 February 2000 by Gummow J.

On 20 April 1994 proceedings were issued by the plaintiff (formerly the Adelaide Steamship Company Limited) in the Federal Court against its former directors (the 1st to 5th defendants) and its former auditors (the 6th and 7th defendants) for recovery of loss caused by payment of the interim and final dividends in 1990. Between April 1994 and June 1999 the Federal Court made various interlocutory orders relating to pleadings etc. On 11 June 1999 the Federal Court gave leave to the plaintiff (Residual Assco) to further amend the statement of claim. The further amended statement of claim was filed and served on 16 June 1999.

On 17 June 1999 the High Court handed down judgment in the Re Wakim matters holding that the cross-vesting legislation purporting to confer jurisdiction in respect of State matters on the Federal Court was constitutionally invalid. On 12 August 1999 South Australia enacted the Federal Courts (State Jurisdiction) Act 1999 (the "State Jurisdiction Act"), which came into effect on 19 August 1999. On 21 September 1999 the Federal Court made an order staying the Federal Court proceedings. On 30 September 1999 the Supreme Court Rules were amended by inserting new SCR 123A regulating applications under the State Jurisdiction Act. Residual Assco applied to the South Australian Supreme Court for an order under the State Jurisdiction Act that the Federal Court proceedings be treated as a proceeding in the Supreme Court. The application was filed on 23 September 1999 and amended on 1 December 1999. The 2nd and 3rd defendants applied to have that application dismissed for want of jurisdiction, as did the 1st defendant. These defendants sought to challenge the jurisdiction or power of the Supreme Court under, and the constitutional validity of, the State Jurisdiction Act. The 4th to 7th defendants did not make any challenge and informed the Supreme Court accordingly.

Upon the application of the Attorney-General for South Australia, Gummow J on 3 February 2000 ordered that the proceedings pending in the Supreme Court of South Australia be removed into the High Court pursuant to s40 of the Judiciary Act 1903 (Cth). On that same date Gummow J stated a case for the consideration of the Full Court.

The questions reserved are:

1. Are section 11 of the Federal Courts (State Jurisdiction) Act 1999 (SA) and rule 123A.05 of the Rules of the Supreme Court of South Australia invalid?;

2. Are any one or more (and, if so, which) of sections 6, 7, 8 and 10 of the Federal Courts (State Jurisdiction) Act 1999 (SA) invalid?; and

3. If any of sections 6, 7, 8, 10 or 11 of the Federal Courts (State Jurisdiction) Act 1999 (SA) be invalid, as a consequence thereof, is another provision thereof (and, if so, which) invalid?

The 4th to 7th defendants will not be making any submissions to the Full Court.

Notices of a constitutional matter have been served. The Attorneys-General of the Commonwealth and all the States (except Tasmania) will be intervening.

 

SMITH v. AUSTRALIAN NATIONAL LINE LTD (P67/1998)

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

Date of Judgment: 18 November 1998

Date of grant of special leave: 21 October 1999

The appellant was employed as a seaman under contract with the respondent, serving on a boat the "Australian Prospector". The respondent owned the boat.

The appellant alleged that on 7 December 1988, as the ship was entering a port in Japan, he was injured whilst working. The appellant claimed that the injuries occurred in the course of his employment and in breach of the respondent's duty to take reasonable care and in breach of an implied term of contract that the respondent would provide safe conditions of work.

On 9 November 1994, the appellant instituted proceedings in the District Court of Western Australia claiming damages against the respondent and against the Commonwealth of Australia for negligence and breach of contract. As an alternative, he claimed that until 23 December 1993, he had a vested right to bring an action for damages against the respondent for negligent breach of a duty of care and for a breach of a contract. He claimed that by the enactment of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) ("the Seafarers Act"), in particular s54, the Commonwealth acquired property from him (i.e. the right to bring a damages claim) other than on just terms, contrary to s51(xxxi) of the Constitution.

Section 54 of the Seafarers Act came into force on 24 June 1993. By virtue of the provisions of s13 of the Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992 (Cth) ("the Transitional Provisions Act") a substituted statutory form of action was created which allowed the appellant to bring a claim for damages of the kind recognised, within 6 months. The effect of this scheme was that the appellant's right to bring the substituted statutory cause of action for damages became time barred on 24 December 1993.

In the action, the respondent raised two defences. First, it contended that the appellant's claim was time barred by reason of s47A of the Limitation Act (1935) WA and second, it contended that the appellant was precluded from instituting proceedings against it by reason of s54 of the Seafarers Act.

An order was made in the Supreme Court for certain questions of law to be tried as preliminary issues as follows:

Whether, if the appellant is able to establish a claim against the respondent, such a claim is statute barred under the provisions of s47A of the Limitation Act (1935) WA; and
Whether s54 of the Seafarers Act read in combination with s13 of the Transitional Provisions Act is invalid and inoperative under the provisions of s51(xxxi) of the Constitution.
At the trial of these preliminary issues the first question was answered "yes" and the second question was answered "no". As a result, orders by consent were made dismissing the appellant's claims against the respondent and the Commonwealth.

The appellant was granted leave to appeal to the Full Court in relation to the questions and against the consent order. These appeals were heard together by the Full Court and the Attorney-General of the Commonwealth elected to intervene pursuant to notices given under s78B of the Judiciary Act 1903 (Cth). The Full Court answered the questions by allowing the appeal in part in answering "no" to both questions (majority decision). The appeal against the consent order was dismissed as a result of the answers to the questions. The effect is that the appellant's actions for negligence or breach of contract against the respondent remain dismissed.

The Attorney-General of the Commonwealth is intervening.

The grounds of appeal are:

  • That the Full Court erred because s54 of the Seafarers Act and s13 of the Transitional Provisions Act which, in combination, have the effect of removing the appellant's right to bring an action or other proceedings against the respondent in respect of the personal injuries alleged to have been suffered by the appellant in the course of his employment with the respondent and caused by the negligence of the respondent, and so extinguish vested causes of action which arose under the general law, constitute an acquisition of property without just terms contrary to the provisions of s51(xxxi) of the Constitution and, for that reason, are thereby invalid and ineffective;
  • That the Full Court erred in characterising the provisions of s54 of the Seafarers Act read with s13 of the Transitional Provisions Act as they applied in the circumstances of this case as merely modifying the limitation period which otherwise would have applied to common law actions for damages and which, as such, did not effect an extinguishment of the appellant's causes of action; and
  • That the Full Court erred because if the provisions of s54 of the Seafarers Act read with s13 of the Transitional Provisions Act are invalid or are ineffective to extinguish or bar the appellant's vested rights of action against the respondent for damages for negligence as alleged, then the appeal from the decision of the registrar of the Supreme Court of Western Australia dismissing the appellant's action in consequence of the answers given to the questions of law by the learned judge at first instance in the decision under appeal to the Full Court should have been allowed.

JOHNSON v. JOHNSON (P19/1999)

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

Date of Judgment: 31 March 1999

Date of grant of Special Leave: 21 October 1999

The appellant and respondent were married in 1979 and separated in 1994.

There had been several years of cohabitation prior to the marriage. The decree nisi of the dissolution of the marriage became absolute on 30 August 1996. The wife's application for property settlement was heard in the Family Court from February to June 1997 there being 63 days of evidence and 3 days of Counsel's addresses.

It was the respondent's case that apart from fairly substantial assets that the parties held in Australia, there were also substantial assets held overseas on behalf of the appellant principally by one Hedges who resided in Bahrain, or an entity or entities controlled by him. It was the appellant's case that there were no assets held for him outside Australia by any person or entity, and that he himself did not hold any assets outside Australia.

Early in the trial, and just prior to the appellant entering the witness box, the trial judge made a statement to the effect that he would rely principally on witnesses other than the parties and documents to determine where the truth lay. When Court resumed the following day, counsel for the appellant made an application that the trial judge disqualify himself. This application was dismissed.

In his judgment the trial judge reviewed evidence in relation to the respondent's claim that Hedges held assets on behalf of the appellant. The trial judge reached the ultimate conclusion that the appellant substantially owned the interest of Hedges where Hedges had an interest in any entity that the appellant controlled. The effect of this conclusion was to increase the size of the asset pool available for division between the parties from approximately $17million (within Australia) by a further sum of approximately $15million. The effect that this had on the overall division, meant that the respondent received the majority of the Australian assets.

The appellant appealed to the Full Court of the Family Court who found that the trial judge had made a number of errors of fact and partially upheld the appeal by making some corrections to the content and value of the asset pool. The Full Court, however, upheld the trial judge's ultimate conclusion on the basis that the errors of fact were not material. The Full Court also found that the specific statements made by the trial judge at the commencement of the appellant's evidence did not give rise to reasonable apprehension of bias.

The grounds of appeal are:

  • That the Full Court erred in law in finding that the trial judge's statement, before the appellant gave evidence, that "I will rely, principally, on witnesses other than the parties in this matter – and documents – to determine where the truth lies" did not give rise to reasonable apprehension of bias;
  • That the Full Court erred in law in finding that the impact of the statement was ameliorated by words preceding the statement; and
  • That the Full Court erred in law in finding that the impact of the statement was ameliorated by a ruling in response to an application that the trial judge disqualify himself which ruling failed to acknowledge that the statement did give rise to a reasonable apprehension of bias.

CRAMPTON v. THE QUEEN (S233/1999)

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

Date of judgment: 1 June 1999

Date of grant of special leave to appeal: 19 November 1999

From 1978 to 1987 the appellant was a primary school teacher. He taught children with learning disabilities. A complaint was made in 1997 by one of the appellant's former pupils. The offence complained of was alleged to have occurred in the period between 31 July 1978 and 1 October 1978. The complainant gave evidence that the appellant called him into a storeroom located at the front of the classroom where he saw the appellant engaging in a sexual activity. The complainant did not participate in the sexual activity allegedly engaged in by the appellant. The appellant gave evidence and denied the facts alleged. He said that when he used the storeroom he never closed the door.

The appellant was charged with an offence of committing an act of indecency with a male person. The charge was brought pursuant to s81A of the Crimes Act (NSW) 1900. The failure of the complainant to complain for a long time resulted in a trial by jury which commenced about 20 years after the alleged events. The appellant was convicted. The jury were unable to reach verdicts in relation to another four counts on the indictment.

An appeal to the Court of Criminal Appeal (which did not raise the question of the elements of an offence under s81A of the Crimes Act (NSW) 1900) was unanimously dismissed.

Special leave to appeal was granted in respect of the following ground:

  • The Court of Criminal Appeal erred in determining that the directions given to the jury by the trial judge on the delay of almost twenty years between the complaint and the conduct giving rise to it were adequate to meet the circumstances of the case.
  • The application for special leave to appeal in respect of the grounds listed below was referred to the Full Court to be heard on the same day as the appeal with respect to the above ground. The parties were directed to be prepared to argue these grounds as if on appeal, but also to be prepared to argue matters relating to the power of an appellate court and the power of this Court with respect to points not taken below:
  • The appellant was convicted of an offence under s81A of the Crimes Act (NSW) 1900 (in the terms in which that section stood in 1978) on the basis of evidence which clearly fails to establish the elements of that offence and which positively establishes that the offence charged has not been committed, either in the manner alleged or at all; and
  • The directions given by the trial judge to the jury on the elements of an offence under s81A of the Crimes Act (NSW) 1900 were inadequate in that they failed to explain to the jury the true nature of such an offence.

(Other than Applications for Special Leave to Appeal)

JUNE 2000


RE MACKS & ORS; EX PARTE SAINT (A6/2000)

RE MACKS & ORS; EX PARTE JOHNSON & ORS (A9/2000)

The firstnamed 8th respondent (Macks) in each of these High Court proceedings is the liquidator of 64 companies comprising the Emanuel Group of companies, the secondnamed 8th respondents. Sixty-three of the 64 companies were wound up by orders of one of the 1st to 3rd and 5th and 6th respondents, being Judges and Registrars of the Federal Court of Australia, between June 1995 and January 1996.

On 8 December 1998 Mansfield J, the 4th respondent, made orders on the application of Macks (in Federal Court proceedings No. SG 3080 of 1995), confirming Macks' power, as liquidator of the Emanuel Group, to enter into a liquidator's funding arrangement with GIO Insurance Limited (GIO) and the Commonwealth Bank of Australia Limited (the CBA). Pursuant to this arrangement, Macks would borrow moneys from the CBA to fund certain actions in the Supreme Court of South Australia and the obligation to repay those moneys was insured by GIO. Two of those actions were Action No. 409 of 1998 and Action No. 410 of 1998. The applicant in the High Court proceeding A6/2000 (Saint) is a defendant in Action No. 409 of 1998. He was a partner in the firm of solicitors practising under the name Thomsons. The applicants in the High Court proceeding A9/2000 (Johnson & Ors) are defendants in Action No. 410 of 1998. They were partners in a firm of solicitors practising under the name Johnson Winter and Slattery (Johnsons). The Supreme Court actions claimed legal and equitable damages and an account of profits in respect of the participation by Thomsons and Johnsons in certain arrangements by the Emanuel Group in early 1995.

By the current proceedings each applicant contends that the 8th respondents should not be permitted to rely on the orders made in the Federal Court, as they were made in the purported exercise of jurisdiction conferred on the Federal Court of Australia by the cross-vesting scheme. On 17 June 1999 this scheme was held to be invalid by the High Court in Re Wakim. Each applicant seeks an extension of time to seek that a writ of certiorari should issue to quash the orders of the Federal Court made between June 1995 and January 1996. Prohibition is also sought, first, against the Federal Court, prohibiting it from taking any further steps to give effect to the orders or taking any steps to wind up the companies; and secondly, against the liquidator, prohibiting him from taking any steps in the winding-up of the companies, or in the prosecution of the Supreme Court actions.

On 19 August 1999, the Federal Courts (State Jurisdiction) Act 1999 (SA) came into force (the remedial legislation). The effect of the remedial legislation is to make any orders, previously made by the Federal Court and which would otherwise be "ineffective judgments" as a result of Re Wakim, valid judgments of the Supreme Court of South Australia.

Insofar as Macks has to rely on the remedial legislation to claim authority to proceed in the winding up, each applicant contends that the liquidator fails as the provisions are invalid as beyond the power of the Parliament of South Australia.

The validity of a number of sections in the South Australian remedial legislation was the subject of the proceedings in the High Court in A5/2000 Residual Assco Group Ltd v. Spalvins & Ors. On 25 May 2000 the Court pronounced orders (with reasons to be published at a later date) in A5/2000. The Court found that s11 of the remedial legislation was valid, but found it unnecessary to answer whether a number of other sections were invalid.

Macks contends that the orders of the Federal Court are not void, but voidable, as a consequence of Re Wakim. Macks contends that the orders remain valid and operative until such time as they are set aside. In the present cases Macks contends that the High Court should not grant the extension of time sought by each applicant in seeking certiorari because there has been substantial, unexplained delay and that numerous third party rights have intervened since the orders were made. Further, Macks submits that the Court, in any event, should not exercise its discretion in favour of each applicant to grant the relief sought because of the intervention of third party rights.

The Deputy Commissioner of Taxation, a substantial creditor of a number of the companies, commenced, or participated in, the winding up applications in the Federal Court. The Deputy Commissioner was joined as the 9th respondent to each proceeding, by order of Gummow J on 3 April 1999.

There have been a number of other proceedings in the Supreme Court of South Australia involving Macks, the Emanuel Group of companies and Saint and Johnson & Ors. Some of these have previously been the subject of applications seeking to remove the proceedings into the High Court on the basis that it was intended to challenge the validity of the remedial legislation. A31/1999, an application by the Attorney-General for South Australia, discontinued prior to hearing. A32/1999 and A8/2000, applications by Saint and Johnson & Ors respectively, were heard by the High Court on 24 March 2000 and were each dismissed as premature.

On 10 April 1999 Gummow J ordered that each application for prerogative relief be made by notice of motion to a Full Court.

Notices of a constitutional matter have been given and a number of Attorneys-General have indicated that they will be intervening. GIO has filed a notice of motion seeking to be joined as a party or, alternatively, seeking leave to intervene.

 

EBNER v. THE OFFICIAL TRUSTEE IN BANKRUPTCY (M131/99)

Court appealed from: Full Federal Court of Australia

Date of judgment: 10 March 1999

Date special leave granted: 9 December 1999

The respondent commenced proceedings seeking orders against the applicant, arising out of the transfer to the applicant by her husband (a bankrupt) of a half interest in certain land at Mount Eliza (the property). On the first day of the hearing the primary judge disclosed that a family trust of which he was a director owned some 9000 shares in the ANZ Bank. He noted that the ANZ Bank was not a party to the proceedings, but it was one of the creditors. After obtaining instructions, counsel for the applicant informed the Court that the ANZ Bank was funding the action "up to a certain level" and that the applicant objected to the judge hearing the case. The judge applied the relevant test as being a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party or another. The primary judge went on to conclude that there was no reasonable apprehension of such bias in the matter before him, and he proceeded to hear the matter. The primary judge declared that the registered transfer of a half interest in the property executed by Maxwell Ebner (the bankrupt) to his wife (the applicant) was void as against the respondent pursuant to ss120 and 121 of the Bankruptcy Act 1966 (Cth) (the Act).

The applicant appealed to the Full Court. One of the grounds was whether the primary judge ought to have disqualified himself by reason of his declared interest in a trust which, in turn, held shares in the Australia and New Zealand Banking Group Ltd (the Bank). The Full Court held that the primary judge did not have a direct pecuniary interest in the outcome of the litigation because the Bank was not a party to the proceedings. The applicant had also relied on the recent House of Lords decision in R v. Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) [ 1999] WLR 272 (Pinochet's case). However the Full Court distinguished it on the basis that Pinochet's case involved a non-pecuniary interest.

Special leave to appeal was granted limited to one ground.

The ground of appeal is :

  • The Full Court erred in upholding the primary judge's ruling that he not disqualify himself on the basis that he had a direct pecuniary interest in the outcome of the proceeding.

CLENAE PTY LTD & ORS v. AUSTRALIA & NEW ZEALAND BANKING GROUP LTD (M2/2000)

Court appealed from: Court of Appeal, Victoria

Date of judgment: 9 April 1999

Date special leave granted: 9 December 1999

The respondent (the Bank) began proceedings claiming various amounts from the applicants, principally in connection with an advance made by the Bank to the first applicant of $AUD1 million in June 1985, in the form of foreign currency loans. The matter was heard by Mandie J over 18 days over a three-month period and judgment was reserved on 2 May 1996. On 14 July 1996 Mandie J's mother died. Mandie J and his brother were named as executors of her estate and probate was subsequently granted to them. By the will, Mandie J and his brother were bequeathed the deceased's residuary estate. This included 4,800 shares in the Bank and a debenture for $200,000 secured over the assets of Esanda Finance Corporation Limited (Esanda). Esanda was a wholly-owned subsidiary of the Bank. In October 1996 Mandie J was registered as shareholder of 2,400 shares in the Bank. Judgment was delivered on 9 October 1997, in which each of the applicants' claims that the Bank had acted in breach of the various obligations alleged against it, were rejected. On 10 October 1997, his Honour made orders. Shortly thereafter the applicants' solicitors ascertained that Mandie J and his brother were the registered owners of the shares in the Bank.

The applicants appealed to the Court of Appeal. Their first argument was that the trial judge was disqualified from giving judgment by reason of direct pecuniary interest. They contended that if a judge had a direct pecuniary interest in the outcome of the proceedings, automatic disqualification resulted and that direct pecuniary interest was established by the shareholding in the Bank, however small. The Court dismissed the appeal. Charles JA (with whom Winneke P agreed), after reviewing the authorities, doubted whether the so-called "automatic disqualification" rule by reason of direct pecuniary interest had survived the development by the High Court of the "reasonable apprehension on the part of a fair-minded and informed observer" test. If there was a separate rule, unrelated to a reasonable apprehension of bias, Charles JA was of the view that the irrebuttable presumption only arises (subject to questions of waiver or necessity) where the judicial officer has a direct pecuniary interest in the outcome of the proceeding. On that test Charles JA would have concluded that the trial judge's interest in the Bank would not have been affected by the outcome of the proceedings. Applying the "reasonable apprehension" test to the present case did not lead to the conclusion that the judge ought to have disqualified himself from giving judgment. Charles JA referred to the judgment of the Full Federal Court in Ebner's case, given after the appeal was heard. He did not agree with that Court's assumption (probably obiter in any event) that any shareholding, however small, in one of the parties to the litigation was sufficient to disqualify the judge. Callaway JA held that even if the trial judge was disqualified, the judgment should not be set aside having regard to the circumstances of the trial and the death of one of the crucial witnesses. Both Winneke P and Charles JA agreed with this view.

The grounds of appeal are:

  • Their Honours erred in holding that the trial judge was not disqualified by virtue of his holding shares in the respondent; and
  • Their Honours erred in holding that the doctrine of necessity applied.

RYAN v. THE QUEEN (S248/1999)

Court appealed from: NSW Court of Criminal Appeal

Date of judgment: 2 March 1998

Date of grant of special leave: 30 November 1999

The appellant pleaded guilty before Nield DCJ to a large number of offences which had been committed against young boys with whom he came into contact as a priest in the Newcastle area. The offences were committed over a period of about 20 years. In consequence of his pleas of guilty, the appellant was sentenced by Nield DCJ to a total effective sentence of 16 years comprising a minimum term of 11 years and an additional term of 5 years, the sentences to commence on 23 May 2000.

The appellant had been dealt with earlier (30 May 1996) by Rummery DCJ for 20 similar offences. On that occasion he was sentenced to imprisonment for a total of 6 years involving a minimum term of 4 years and an additional term of 2 years. The sentences imposed by Nield DCJ were made cumulative upon the sentences imposed by Rummery DCJ. Accordingly, the appellant was sentenced to a total effective period of 22 years penal servitude to date from 23 May 1996.

The earlier sentencing proceedings and a subsequent unsuccessful appeal had been accompanied by considerable publicity. As a consequence of that publicity 3 men, who as children had been victims of the appellant many years previously, came forward and gave information to the police. When the police interviewed the appellant, who was by that time in custody, he made admissions concerning the new allegations and in addition informed the police of a great number of other offences and victims. There was no evidence to suggest that any of these additional victims volunteered by the appellant had proposed to come forward to the police.

Nield DCJ said that the appellant's admissions of previous undisclosed crime went to his credit, showed his contrition and entitled him to a discount in punishment. His Honour did not identify the extent of the discount which was said to have been extended to the appellant. A number of testimonials were tendered to Nield DCJ who observed that the appellant's unblemished character and reputation did not entitle him to any leniency whatsoever.

The appellant appealed against sentence to the Court of Criminal Appeal (CCA) on the grounds that the sentence was, in the circumstances, gross and excessive and that the judge did not take into account nor give proper weight to the subjective features of the case.

The CCA found that the sentences imposed were severe, but the objective criminality involved in his behaviour was extreme. The appeal was dismissed.

The grounds of appeal include:

  • The Court of Criminal Appeal erred in concluding that the overall sentence imposed upon the appellant was not manifestly excessive having regard to the relevant matters to be taken into account for the purpose of sentence;
  • The Court of Criminal Appeal erred in finding that the sentence imposed upon the appellant took sufficient account of the subjective case of the appellant;
  • The Court of Criminal Appeal erred in assessing that the learned sentencing judge took into account or gave sufficient credit to the appellant for the appellant's very substantial disclosure of offences which were not otherwise known to the authorities; and
  • The Court of Criminal Appeal erred in upholding a severely retributive sentence for offences which were not known apart from the offender's confession.

 

Full Court Matters

(Other than Applications for Special Leave to Appeal)

BRISBANE CIRCUIT SITTINGS

JUNE 2000


PP CONSULTANTS PTY LTD v. FINANCE SECTOR UNION OF AUSTRALIA (S104/2000)

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

Date of judgment: 10 September 1999

Date of grant of special leave: 14 April 2000

The appellant seeks special leave to appeal from a decision of the Full Court of the Federal Court on the construction of s149(1)(d) of the Workplace Relations Act 1996 ("the Act").

Until September 1997, the St George Bank ("the bank") operated one of its branches from premises in a shopping centre at Byron Bay, New South Wales. PP Consultants ("the appellant") operated a pharmacy in the same shopping centre.

On 10 September 1997 the appellant entered into a so-called "bragency" agreement with the bank. This agreement was to provide a "bragency" of the bank within the Pharmacy operated by the appellant located in Byron Bay. On 12 September 1997 the bank closed its branch office.

The appellant employed two of the bank's previous employees, one of whom was Mrs Patricia Moffatt. The respondent applied to the Federal Court for declarations that the appellant, by virtue of s149(1)(d) of the Act, was a successor, assignee or transmittee of part of the business of the bank so as to bind the appellant with the St George Bank Employees Award in respect of the employment of Mrs Moffatt.

At first instance the trial judge refused to order such declarations. An appeal to the Full Court was successful. The approach taken by the appellant before the Full Court concentrated on the nature of the transaction between the old employer and the new employer, while the respondent's approach was to look at the degree of identity between the activities carried out by the two employers. The Full Court favoured the latter approach and the matter was remitted to the trial judge for further hearing and determination.

The grounds of appeal are:

  • The Full Court erred in holding that the question whether an award of the Australian Industrial Relations Commission was binding by operation of s149(1)(d) of the Workplace Relations Act 1996 was to be determined only by the degree of identity between the activities of the two employers concerned;
  • The Full Court erred in holding that the words "part of a business" in s149(1)(d) denote "a particular bundle of activities that constitute an identifiable portion of the total activities that constitute a business" previously carried out by the successor, assignor or transmittor;
  • The Full Court erred in failing to hold that for the purposes of s149(1)(d) the part of a business under consideration must itself constitute a business; and
  • The Full Court erred in holding that the appellant was, within the meaning of s149(1)(d), a successor, assignee or transmittee to or of the business or part of the business of St George Bank Limited.

CONCUT v. OFFICIAL TRUSTEE IN BANKRUPTCY (B85/1999)

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

Date of Judgment: 5 February 1999

Date of grant of special leave: 30 November 1999

The appellant employed Mr Geoffrey Wells (of whose estate the respondent was trustee), some time prior to 1980. In November 1980 Mr Wells was appointed as Queensland manager of the appellant's business pursuant to an oral agreement. On 1 December 1986 the appellant and Mr Wells entered into a written contract recording the terms and conditions of employment of Mr Wells as Queensland manager of the appellant.

The agreement was for a term of five years and included a term that the employee "... shall serve the company faithfully and diligently and use his utmost endeavours to promote the interests of the company ...". Mr Wells' employment was terminated on 1 February 1988. Subsequently, the appellant became aware of conduct by Mr Wells that had probably occurred during the time that Wells was employed under the oral agreement, ie prior to 1 December 1986. It was significant misconduct, sufficient to justify the termination of Wells' employment.

Mr Wells commenced proceedings in the District Court of Queensland, for damages for unlawful termination of his employment contract. The damages included the balance of the remuneration he would have received if he had been able to continue performance of his contract for the balance of its five year term. The appellant counterclaimed for damages for breach of the employment contract. The appellant was successful at first instance.

On appeal, Mr Wells submitted that the 1986 contract stood apart from the earlier oral contract, that his misconduct had only breached the earlier contract, and that, as he had no duty to disclose his earlier misconduct, the appellant was not entitled to terminate his existing contract. The appeal was allowed by a majority, Shepherdson J dissenting.

The respondent's solicitors have filed a notice of motion seeking to substitute Ivor Worrell and Morgan Lane (now the registered trustees in the bankruptcy of Mr Wells) as the named respondents.

The grounds of appeal are:

  • That the majority of the Court of Appeal erred in law in concluding that the Appellant was not entitled to terminate the employment of the Respondent and, in particular, that the Appellant was not entitled to terminate the employment of the Respondent by reason of misconduct of the Respondent on the ground that a new written contract had been entered into between the parties after the occurrence of misconduct, even though:

1. the Appellant was wholly unaware of such misconduct at the time of entry into that new contract; and

2. the prior undisclosed and unremedied misconduct by the Respondent was inconsistent with the continued existence of the relationship of confidence between employer and employee;

  • That the majority of the Court of Appeal erred in law in proceeding to that conclusion on the basis of a principle that the obligation of fidelity by an employee to an employer does not require the disclosure and rectification of past breaches of the obligation of fidelity by the employee in respect of the same employer where disclosure or rectification would require the employee to incriminate himself or herself; and
  • That the majority of the Court of Appeal erred in law in concluding that it was not impliedly warranted in a contract of employment entered into as replacement for, or an extension of, an existing contract of employment, that the employee was not then guilty of any undisclosed misconduct inconsistent with the relationship of confidence between employer and employee.

MONEYWOOD PTY LTD v. SALAMON NOMINEES PTY LTD (B22/2000)

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

Date of Judgment: 22 December 1998

Date of grant of special leave: 10 March 2000

The respondent was the registered proprietor of undeveloped land. On or about 1 March 1994, the respondent orally appointed the appellant (trading as an office of LJ Hooker) as its agent to find a buyer for the land. On 31 March 1994, the respondent entered into a contract to sell the land to BMD Constructions Pty Ltd for the price of $6,825,000 ("the original contract").

The original contract contained clause 30 of the standard conditions of sale adopted in Queensland by the Real Estate Institute of Queensland and approved by the Queensland Law Society. The contract named the appellant as the vendor's agent.

After entry into the original contract, but prior to settlement, the local Council indicated an intention to acquire a portion of the land. In order to save stamp duty on the purchase price of the whole land, two new contracts were entered into with the respondent, one by the Council to purchase a portion of the land and the other by the original purchaser for the balance of the land. The purchase prices were roughly apportioned.

The original contract was not terminated since the respondent was anxious to preserve it in case the two new contracts failed.

The new contracts also incorporated the standard conditions; however, no vendor's agent was named. As a result the respondent refused to pay commission to the appellant in relation to the sales.

The appellant sued the respondent for the commission and at first instance the appellant succeeded in the District Court and recovered the commission plus interest.

On appeal to the Court of Appeal, the majority held that the respondent could successfully defend the appellant's claim for commission by relying on s71(1)(c) of the Auctioneers' and Agents' Act 1971 (Qld) which provides:

"No person shall be entitled to sue or recover or retain any fees, charges, commission, reward or other remuneration for or in respect of any transaction as ... a real estate agent, ... unless –

(c) the engagement or appointment to act as ... real estate agent ... in respect of such transaction is in writing signed by the person to be charged with such ..., or the person's agent or representative ...".

The majority of the Court of Appeal found that the appellant was precluded from receiving commission on the sale which was the subject of the second contract as the appointment of the agent as evidenced by the original contract did not constitute an appointment "in respect of " that sale.

The respondent has filed a notice of contention.

The grounds of appeal are:

  • That the Court of Appeal erred in finding that, in order to satisfy s76(1)(c) of the Auctioneers' and Agents' Act 1971 (Qld) ("the Act"), the appointment of an agent was required to contain documentary evidence which had specific reference to the very transaction out of which the claim for commission arises; and
  • That the Court of Appeal erred in concluding that the appointment, evidenced by clause 30 of the contract of sale of land from the Respondent to BMD Constructions Pty Ltd ("BMD") dated 31 March, 1994 was specific only to that contract and did not operate to satisfy section 76(1)(c) of the Act in respect of a subsequent contract for the sale of land from the Respondent to BMD dated 14 June, 1995.

The respondent contends:

That the appellant did not earn its commission because it was not the effective cause of the sale of part of the land to BMD Constructions Pty Ltd.

 

 

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