(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.