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Reviews of judgments

Every Issue

Cite as: (2004) 78(4) LIJ, p.66

High Court judgments

Cite as: (2004) 78(4) LIJ, p.66

By Thomas Hurley

Contribution – misapplication of trust funds.

  • Alexander v Perpetual Trustees WA Ltd [2004] HCA 7 (12 February 2004).

The High Court considered the entitlement of a firm of solicitors which had failed to hold money given to it by trustees for a specific purpose to obtain contribution under the Wrongs Act 1958 (Vic) from the trustees, and whether contribution was available in answer to claims for misleading and deceptive conduct. The High Court divided: Gleeson CJ, Gummow, Hayne JJ; contra McHugh J agreeing with Callinan J; Kirby J. Appeal dismissed.

Criminal law – commonwealth offences – applicability of aggregate sentences in NT.

  • Putland v Q [2004] HCA 8 (12 February 2004).

The High Court concluded the provisions of s4K of the Crimes Act 1914 (Cth) applied to the trial on indictment of a person in the Northern Territory of a commonwealth offence notwithstanding that this may lead to discrimination between federal offenders charged in different places: Gleeson CJ; McHugh, Gummow JJ; Callinan J; contra Kirby J. Appeal dismissed.

Defamation – defences – qualified privilege – report of judicial proceedings.

  • Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 (11 February 2004).

The High Court by majority concluded the common law defence of qualified privilege was available as a defence to a claim for defamation arising out of publication of an incorrect description of Federal Court litigation in an occupational health and safety bulletin: Gleeson CJ, Hayne, Heydon JJ; Gummow J; Kirby J; contra McHugh J; Callinan J. Appeal dismissed.

Guarantee – judicial notice of bank guarantees.

  • Gattellaro v Westpac Banking Corporation [2004] HCA 6 (11 February 2004).

The High Court concluded courts could not take “judicial notice” that institutions such as a bank used a standard form of guarantee [18]. The Court allowed the respondent leave to amend a notice of contention to raise a further answer to the appellant’s denial of liability under the guarantee. The High Court by majority dismissed the appeal but made no order as to costs: Gleeson CJ, McHugh, Hayne, Callinan, Heydon JJ; contra Kirby J.

Real property (NSW) – permissive occupancy – land vested in privatised body without required consent.

  • Broadcast Australia Pty Ltd v Minister Assisting the Minister for Natural Resources [2004] HCA 4 (10 February 2004).

The High Court in a joint judgment concluded that NSW Crown land held by the Commonwealth under a permissive occupancy granted under the Crown Lands Consolidation Act 1913 (NSW) was transferred to the appellant as an asset vested in the Commonwealth by an instrument made under the National Transmission Network Sale Act 1998 (Cth): McHugh, Gummow, Hayne, Callinan, Heydon JJ. Appeal allowed.


THOMAS HURLEY is a member of the Victorian Bar. The numbers in square brackets refer to the paragraph numbers in the judgment. The full version of these judgments can be found on the AustLII website http://www.austlii.edu.au/databases.html.

Federal Court Judgments

Cite as: (2004) 78(4) LIJ, p.67

By Thomas Hurley

Australian Crime Commission – self-incrimination.

  • A v Boulton [2004] FCA 56 (6 February 2004).

Weinberg J considered whether s30 of the Australian Crime Commission Act 2002 (Cth) abrogated the privilege against self-incrimination.

Corporations – deed of company arrangement – directions.

  • Re Lofthouse and Riverside Nursing Care Pty Ltd [2004] FCA 93 (13 February 2004).

Finkelstein J considered the nature of an application for directions in respect of a deed of company arrangement as provided in the Corporations Act 2001 (Cth) ss447D(2), 556.

Corporations – extension of time for proposed deed of company arrangement.

  • Kaye v National Investment Institute Pty Ltd [2004] FCA 100 (16 February 2004).

Goldberg J considered how the powers granted by ss447A, 1322(4)(d) of the Corporations Act 2001 (Cth) should be exercised on an application by the proposer of the deed for an order to extend the period for a proposed deed of company arrangement fixed by s439B(2).

Corporations – statutory demand – whether creditor estopped – estoppel by convention.

  • Quadrant Constructions Pty Ltd v HSBC Bank Australia Ltd [2004] FCA 111 (18 February 2004).

Finkelstein J considered whether a bank was estopped from claiming a debt by a statutory demand and whether the bank was under a duty not to sacrifice, impair or diminish the value of the security.

Corporations – winding up – leave to intervene.

  • Lechmere Financial Corporation v Aspermont Ltd [2004] FCA 36 (30 January 2004).

RD Nicholson J considered when a party should be given leave to intervene in winding up proceedings to claim ownership of a sum of money paid into court in response to an application to wind up a corporation.

Federal Court – appeal – challenge to findings of fact – amendment to notice of appeal.

  • Li Pei Ye v Crown Ltd [2004] FCAFC 8 (23 January 2004).

A Full Court dismissed an appeal where the appellant challenged findings of fact by the primary judge on the basis that his acceptance of the demeanour of witnesses was inconsistent with other incontrovertible evidence. The Court considered when a notice of appeal would be amended in circumstances where fresh evidence could have been led below.

Health – review of professional services of doctor.

  • Kelly v Daniel [2004] FCAFC 14 (6 February 2004).

A Full Court considered whether the two-year period of supply of medical services which the Health Insurance Commission must consider in reviewing the professional services of a doctor was merely an outer limit of the period for which particulars of excessive service could be provided.

Human rights – racial vilification.

  • Bropho v HREOC [2004] FCAFC 16 (6 February 2004).

A Full Court considered provisions which exempt acts done by way of “artistic work” and “in good faith”, which would otherwise constitute racial vilification within ss18C, 18D of the Racial Discrimination Act 1975 (Cth), in relation to a cartoon concerning the return to Australia of Aboriginal remains.

Industrial law – award – construction – insurance of air traffic controllers.

  • Civil Air Operations Association of Australia v Airservices Australia [2004] FCA 55 (5 February 2004).

Finkelstein J concluded that the relevant award required the employer to pay insurance so air traffic controllers remained insured for loss of their licence.

Judicial review – decision under an enactment.

  • Smith v Oakenfull [2004] FCA 4 (2 February 2004).

Dowsett J concluded that a decision under the Compensation for Detriment Caused by Defective Administration Scheme, created to provide compensation for maladministration, was not a decision “under an enactment” for the AD(JR) Act.

Legal practitioners – costs against solicitor for unsuccessful party.

  • Kumar v MIMIA (No 2) [2004] FCA 18 (30 January 2004).

Mansfield J considered authority as to when a legal adviser should be ordered to pay a successful respondent costs for proceedings which had little or no prospect of success. He concluded the costs of the respondent were not incurred as a result of delictual conduct on the part of the solicitor.

Migration – absence of reasons – reasoning by incorporated direction.

  • Nguyen v MIMIA [2004] FCAFC 19 (13 February 2004).

A Full Court concluded an “issues paper” given to the Minister did not constitute his reasons. The Full Court concluded that even in the absence of a written statement of reasons it was possible to identify the thinking of the Minister because a reference to a direction given under s499 of the Migration Act established that the Minister had made the decision knowing it was contrary to the best interests of the relevant children.

Migration – cancellation of business visas – discretion.

  • Kim v MIMIA [2004] FCA 31 (3 February 2004).

Keifel J concluded the AAT had erred by failing to hold the Minister had a discretion to cancel a business visa where satisfied it could be cancelled.

Migration – detention – purpose of detention.

  • Te v MIMIA [2004] FCAFC 15 (5 February 2004).

A Full Court concluded the length of detention of the appellant did not establish the detention had ceased to be for the purpose of removing him from Australia.

Migration – jurisdictional error.

  • WAJR v MIMIA [2004] FCA 106 (18 February 2004).

French J set aside a decision of the RRT which rejected documentary evidence of the applicant on the basis it was forged without the person being given an opportunity to comment.

Migration – refugees – natural justice – refusal of representation.

  • WABZ v MIMIA [2004] FCAFC 30 (18 February 2004).

A Full Court concluded a breach of natural justice constituting jurisdictional error occurred where the RRT unexpectedly denied an applicant representation by a legal aid lawyer. The Full Court observed the RRT had a discretion to allow a person to be represented before it [69], [72], [110].

Migration – refugees – protection obligations – safe third country – expulsion from Australia not prevented.

  • NAEN v MIMIA [2003] FCAFC 6 (13 February 2004); NAHF v MIMA [2004] FCAFC 7 (13 February 2004).

A Full Court concluded Australia did not owe protection obligations within s36(2) of the Migration Act to a person where Article 33 of the Refugees Convention did not prevent Australia from expelling the refugee to the frontiers of a country other than that where the persecution occurred. Decision in NAGV v MIMIA [2003] FCAFC 144 disapproved.

Migration – refugees – whether change in circumstances – jurisdictional error.

  • WAHK v MIMIA [2004] FCAFC 12 (30 January 2004).

A Full Court found the RRT had erred in considering whether changes in Afghanistan since the departure of the applicant meant the appellant was no longer a refugee at the time of the decision. The Full Court concluded failure to consider whether the appellant could be persecuted from sources other than the government, and failure to consider the circumstances at the time of the decision, constituted jurisdictional error.

Migration – registration of migration agents.

  • Hartnett v MARA [2004] FCA 50 (16 February 2004).

Marshall J considered the process by which the Migration Agents Registration Authority suspends the registration of a migration agent.

Migration – visa – “no further stay” condition.

  • Terera v MIMIA [2003] FCA 1570 (23 December 2003).

Kenny J quashed a decision refusing to waive the “no further stay” condition where the delegate had failed to consider the correct question.


THOMAS HURLEY is a member of the Victorian Bar. The numbers in square brackets refer to the paragraph numbers in the judgment. The full version of these judgments can be found on the AustLII website http://www.austlii.edu.au/databases.html.

Supreme Court judgments

Cite as: (2004) 78(4) LIJ, p.69

By Greg Reinhardt

The definition of “accident” under the Warsaw Convention.

  • Qantas Ltd & British Airways plc v Povey [2003] VSCA 227 (unreported, 23 December 2003, No 7223/2001, Ormiston and Chernov JJA and Ashley AJA).

This decision of the Court of Appeal has important ramifications for those seeking compensation as the result of suffering deep vein thrombosis (DVT) consequent on travel by air. It effectively precludes such a claim in Australia absent a contrary view by the High Court. The decision at first instance had been made in response to an application by the defendants/appellants to stay the proceeding or to strike out the plaintiff’s statement of claim. On such an application, the plaintiff need only show that his or her case is arguable for the Court to permit the proceeding to continue, if necessary with amendment of the statement of claim.

At issue was the meaning of the word “accident” in Article 17 of the Montreal No 4 Convention (the Montreal Convention) as appearing in Schedule 5 to the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (this Article appeared originally in the Warsaw Convention 1929, was modified by The Hague Protocol 1955 and then by the Montreal Convention).

The plaintiff/respondent brought proceedings claiming compensation for DVT said to have arisen as the result of travel with the defendants.

Article 17 is in the following terms:

“The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking”.

Could the plaintiff maintain that there had been an accident?

Ormiston JA was of the view that “the word ‘accident’ in Article 17 requires proof of a specific incident or occurrence which can be characterised as fortuitous. In other words, it should be given its natural and ordinary meaning, namely an unexpected or unusual event, one which occurs by chance and without design, at least on the part of the person suffering death or injury”. [4]

His Honour noted that the word had been given other meanings in other contexts; however, the Court should give the word the meaning adopted by O’Connor J as the opinion of the US Supreme Court in Air France v Saks 470 US 392 (1985) at 405, namely:

“We conclude that liability under Article 17 of the Warsaw Convention arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger”.

And, further, at 406:

“But when the injury indisputably results from the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and Article 17 of the Warsaw Convention cannot apply”.

Finally, O’Connor J said, at 406:

“Any injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger”.

Saks had been followed in the UK, Canada and Australia.

The plaintiff sought to sustain the decision at first instance in several ways. His submissions were rejected by Ormiston JA. Contrary to the submission of the plaintiff, the word “accident” in Article 17 was not parenthetical or adjectival. [12] There was no ambiguity; proof of an accident was required. [13] The failure to advise of a non-event could not constitute an accident. [18] Where an injury results from a passenger’s own internal reaction to the usual operation of an aircraft, there can be no accident. [23] Concepts of negligence are irrelevant. [27] It is the causative event which is relevant and that must be an accident. There was nothing in the plaintiff’s statement of claim which would spell out an “accident” as set put in Article 17.

Chernov JA also relied on the decision in Saks. The only act alleged by the plaintiff which could constitute an accident was the discouragement of moving about the cabin and the offers to consume beverages. These were continued circumstances and did not amount to an event or happening. Even if there were an event or happening, the plaintiff’s injury resulted from his own reaction to standard flight conditions. If both these views were wrong, the event was not unexpected or unusual; the acts complained of were standard travel procedures. [47]

Ashley AJA also relied on Saks. It was desirable to achieve consistency with the mainstream views in leading overseas authorities. [97] His Honour examined the overseas decisions in some detail, particularly insofar as they dealt with the distinction between an event and a non-event, and drew a number of conclusions from them including the conclusion that a bare failure to warn or advise is not an “accident” for the purposes of the Article. [197]

Was what the plaintiff complained of unexpected or unusual? The question was to be answered from the perspective of a disinterested bystander. [200]

His Honour was satisfied that part but not all of the case could constitute an “accident”. To the extent that the statement of claim relied on the defendants’ knowledge of flight conditions which might cause damage to the plaintiff and failed to warn the plaintiff of them, there was an arguable case. Parts of the statement of claim should be struck out and the appeal allowed to facilitate amendment.

The appeal was allowed.

[An application for special leave to appeal to the High Court has been lodged by the plaintiff.]


PROFESSOR GREG REINHARDT is executive director of the Australian Institute of Judicial Administration and a member of the Faculty of Law at Monash University.

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