Recent Cases

High Court of Australia

  • Catchwords: Bankruptcy – Bankrupt estate – Where “the property of the bankrupt” vested in trustee in bankruptcy pursuant to s 58 of Bankruptcy Act 1966 (Cth) – Where bankrupt held estate in land under Torrens system on trust – Whether property held by bankrupt on trust capable of vesting in trustee in bankruptcy – Whether bankrupt had a valid beneficial interest – Whether estate vested in trustee in bankruptcy in equity. Real property – Torrens system – Caveats – Where trustee in bankruptcy lodged caveat claiming “Legal Interest pursuant to the Bankruptcy Act 1966” and refused or failed to withdraw caveat after request – Whether caveator liable to pay compensation under s 74P(1) of Real Property Act 1900 (NSW) for lodging and maintaining caveat “without reasonable cause” – Whether existence of caveatable interest or honest belief on reasonable grounds in such interest sufficient for “reasonable cause” – Whether claimant established that caveator had neither caveatable interest in property nor honest belief on reasonable grounds in having such interest – Whether possibility of trust being set aside under s 120 or s 121 of Bankruptcy Act conferred caveatable interest – Whether caveat adequately described equitable estate in fee simple – Whether deficiency in statement of interest demonstrated absence of “reasonable cause”. Trusts – Trustees – Right of indemnity – Where trustee incurred significant expenses in his capacity as trustee ordinarily entitling him to be indemnified out of trust property – Where trustee asserted “mutually beneficial arrangement” with “the trust” – Whether asserted arrangement prejudiced trustee’s right of indemnity wholly or in part – Whether value of benefits to trustee under asserted arrangement equal to or exceeded total of trust expenses incurred. Words and phrases – “beneficial interest”, “caveatable interest”, “caveat

  • Catchwords: Criminal practice – Trial – Directions to jury – Liberato v The Queen (1985) 159 CLR 507 (“Liberato”) – Where appellant convicted by jury of rape – Where appellant did not give sworn evidence at trial – Where appellant made exculpatory statements in recorded police interview – Where record of interview admitted into evidence – Where appellant did not seek Liberato direction at trial – Where trial judge did not give Liberato direction – Whether Liberato direction required where accused does not give sworn evidence – Whether Liberato direction required where record of interview containing exculpatory statements admitted into evidence. Words and phrases – “beyond reasonable doubt”, “choice between witnesses”, “conflicting version of events”, “criminal standard”, “evidence on oath”, “exculpatory answers”, “interview with the police”, “jury directions”, “Liberato direction”, “onus and standard of proof”, “out-of-court statement”, “recorded interview”, “summing-up as a whole”, “sworn evidence”, “who do you believe”, “word-on-word”.

  • Catchwords: Immigration – Refugees ­– Application for protection visa ­– Where Pt 7AA of Migration Act 1958 (Cth) requires Immigration Assessment Authority (“IAA”) to review certain decisions to refuse applications for protection visas – Where s 473CB(1)(a), (b) and (d) requires Secretary of Department to give certain material to IAA to conduct review ­­– Where s 473CB(1)(c) requires Secretary to give to IAA any other material Secretary considers relevant to review – Where s 473DB requires IAA to review decision by considering material given by Secretary – Where Secretary gave material to IAA pursuant to s 473CB(1)(c) ­– Where material irrelevant to task of IAA – Where material prejudicial to applicant ­– Where applicant unaware of material ­– Whether jurisdictional error by Secretary –­ Whether jurisdictional error invalidated decision of IAA – Whether apprehended bias. Administrative law – Judicial review –­­ Procedural fairness – Where s 473FA requires IAA to operate free of bias – Whether apprehended bias. Words and phrases – “apprehended bias”, “bias”, “fair-minded lay observer”, “fast track reviewable decision”, “Immigration Assessment Authority”, “impartial”, “irrelevant”, “irrelevant and prejudicial material”, “jurisdictional error”, “material”, “materiality”, “prejudicial”, “prejudicial but inadmissible”, “procedural fairness”, “professional decision maker”, “reasonable apprehension of bias”, “relevant”, “relevant to the review”, “required to consider”, “review material”, “rule against bias”, “subconscious bias”.

  • Catchwords: Immigration – Representative proceedings – Where plaintiff brought representative proceeding in High Court for damages for false imprisonment – Where claimed that Group Members purportedly detained under ss 189 and 196 of Migration Act 1958 (Cth) – Where claimed that detention for purpose of receiving, investigating or determining application for visa, or determining whether to permit valid application for visa to be made, or of removing relevant Group Member from Australia to regional processing country – Where claimed that detention lawful only for period during which purposes pursued and carried into effect as soon as reasonably practicable and capable of fulfilment – Where claimed that detention unlawful because purposes not carried into effect as soon as reasonably practicable or because detention continued at times during which purposes not capable of fulfilment – Where plaintiff applied for order remitting proceeding to Federal Court of Australia pursuant to s 44(2A) of Judiciary Act 1903 (Cth) – Where s 476B(1) of Migration Act provided that High Court must not remit matter “that relates to a migration decision” to court other than Federal Circuit Court – Where s 468B(1) and (2) provided that representative proceeding not permitted where proceeding would “raise an issue in connection with visas … or removal of unlawful non-citizens” – Whether proceeding related to migration decision – Whether proceeding raised issue in connection with visas or removal of unlawful non-citizens. Words and phrases – “class actions”, “in relation to”, “migration decision”, “raises an issue in connection with”, “relates to”, “representative proceeding”.

  • Catchwords: Practice and procedure – Representative action – Orders – Where s 33ZF of Federal Court of Australia Act 1976 (Cth) and s 183 of Civil Procedure Act 2005 (NSW) provide that in representative proceeding court may make any order court thinks appropriate or necessary to ensure justice is done in proceeding – Where representative proceedings commenced in Federal Court of Australia and Supreme Court of New South Wales – Where proceedings funded by litigation funders – Where litigation funders entered into litigation funding agreements with small number of group members – Where representative parties in each proceeding applied for common fund order – Whether s 33ZF of Federal Court of Australia Act and s 183 of Civil Procedure Act empower Federal Court of Australia and Supreme Court of New South Wales to make common fund order. Words and phrases – “access to justice”, “appropriate or necessary to ensure that justice is done in the proceeding”, “award of damages”, “book building”, “common fund”, “common fund order”, “distribution of moneys recovered”, “equitable sharing of costs”, “fair and reasonable to all group members”, “free riding”, “funding commission”, “funding equalisation order”, “interests of justice”, “litigation funding”, “representative proceeding”, “risk”, “unfunded group members”.

Full Federal Court

  • Catchwords: COSTS – application for respondents to pay costs of appeals on indemnity basis and the costs of trial – where respondent’s rejection of appellants’ Calderbank offer not unreasonable in all of the circumstances – where grounds of appeal were arguable but did not have good prospects of success – where appeals could not be allowed by consent unless Court satisfied that there was arguable appealable error by trial judge

  • Catchwords: STATUTORY INTERPRETATION – operation of fidelity fund scheme – where owners corporation made two claims under fidelity certificates issued by a fidelity fund approved under the Building Act 2004 (ACT) for loss flowing from alleged breaches of statutory warranties – where claims rejected by trustees of the fidelity fund on the basis the claims were made outside the period provided for under the fidelity fund scheme – whether trustees of the fidelity fund entitled to reject claims – appeal dismissed

  • Catchwords: INTELLECTUAL PROPERTY – copyright – appeal from orders dismissing an application for damages for infringement of copyright subsisting in a logo – whether first appellant was the sole owner of the copyright – whether, as co-owner, the first appellant could revoke a licence previously granted jointly by the co-owners to the respondents – whether the licence was revocable at will – whether licence previously granted to the respondents was revoked on the facts – no appealable error – appeal dismissed

  • Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court dismissing application for judicial review of decision of the Administrative Appeals Tribunal affirming decision of a delegate of the Minister to refuse to grant the appellant a visa – where visa required satisfaction of the health criteria in cl 4007 of the Migration Regulations 1994 (Cth) – where delegate’s refusal of the visa based on the appellant’s son’s failure to meet the health criteria by reason of his medical condition – where opinion prepared by Medical Officer as required by the Regulations – whether assessment undertaken by the Medical Officer sufficiently identified the nature and extent of the appellant’s son’s medical condition – whether opinion of Medical Officer was based on sufficiently current information – whether the Tribunal did not afford the appellant procedural fairness in failing to disclose a certificate issued under s 375A of the Migration Act 1958 (Cth) – where information covered by the certificate was used to determine the costs to the Australian community of medical and community services for the appellant’s son – consideration of the primary judge’s approach to materiality – appeal allowed

  • Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – fast track review process – where the appellant provided to the Department certain documents relating to a complaint to the Human Rights Commission of Sri Lanka (the Human Rights Documents) – where the Human Rights Documents were not before the delegate of the first respondent at the time he made a decision to reject the appellant’s visa application – where the Secretary did not provide the Human Rights Documents to the Immigration Assessment Authority – where the appellant submitted the Human Rights Documents to the Authority but the Authority refused to consider them – where the Authority proceeded on the misapprehension that the Human Rights Documents had not been previously provided to the Department – whether the Secretary breached the obligation in s 473CB(1)(c) of the Migration Act 1958 (Cth) to give the Authority “any other material that is in the Secretary’s possession or control and is considered by the Secretary … to be relevant to the review” – whether the Authority failed to carry out the review required by Pt 7AA of the Migration Act

NSW Court of appeal

  • Catchwords: NEGLIGENCE – damages – residual earning capacity – plaintiff injured in course of employment – plaintiff completely incapacitated for work from date of injury until conclusion of hearing – whether plaintiff has residual earning capacity of eight hours per week – vicissitudes – whether case warranted greater than usual discount for vicissitudes of 15 per cent EVIDENCE – opinion evidence – expert opinion of clinical psychologist concerning residual earning capacity of plaintiff – whether clinical psychologist was sufficiently qualified to give expert evidence

  • Catchwords: CIVIL PROCEDURE – appeal – judgment of District Court – amount in issue – leave to appeal required – expiry of period within which to seek leave to appeal – extension of time – non-appearance by appellant – notice under Uniform Civil Procedure Rules 2005 (NSW), r 13.6 – appeal incompetent – summary dismissal

  • Catchwords: SUCCESSION — contested probate — testamentary capacity — application of test in Banks v Goodfellow — where will apparent rational on its face — where evidence of hallucinations or delusions — whether delusions or hallucinations affected the provisions of the will — whether deceased was able to comprehend and appreciate the claims to which deceased ought to have given effect

  • Catchwords: CORPORATIONS – Insolvency – second meeting of creditors resolves to place company into liquidation – substantial creditors’ motion for appointment of liquidator fails – former administrator as person presiding at meeting exercises casting vote against resolution – proper characterisation of resolution – whether or not resolution to appoint liquidator was a resolution to remove an external administrator within the meaning of s 75-115 of Insolvency Practice Rules – whether Court should have ordered that proposed resolution to appoint liquidators should have been taken to have been passed at meeting within meaning of s 75-43(4)(a) of the Insolvency Practice Schedule – relevant considerations. CORPORATIONS – Insolvency – company in administration – s 90-15 of the Insolvency Practice Schedule – whether a source of power to order that resolution to appoint liquidators be ordered to have been taken to have been passed at creditors’ meeting – whether general power to make orders or only engaged where failure or default on part of administrator

  • Catchwords: SUCCESSION — executors and administrators — rights, powers and duties — executrix exercised deceased’s right to rescind contract for sale of land before obtaining probate — consideration of ss 44 and 61 of the Probate and Administration Act 1898 (NSW) — whether rescission valid when given — whether rescission retrospectively validated on obtaining probate LAND LAW — conveyancing — contract for sale — rescission — construction of clause providing right to rescind — whether right available only to surviving party to contract — whether solicitor named in contract able to exercise right notwithstanding vendor’s death LAND LAW — conveyancing — contract for sale — breach — five-year completion period — where neither party took steps to complete — whether contract breached — where purchaser subsequently attempted to bring about completion — whether estate took advantage of its own wrong in serving second rescission notice