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Reviews of judgments

Every Issue

Cite as: (2005) 79(4) LIJ, p. 50

High Court judgments

Cite as: (2005) 79(4) LIJ, p. 50

By Thomas Hurley

Criminal law – evidence – admissibility of non-video taped admissions – collateral evidence – when evidence of prior inconsistent statement of witness admissible

  • Nicholls v Q; Coates v Q [2005] HCA 1 (3 February 2005)

N and C were convicted in the Supreme Court of WA of murder. The High Court considered an appeal in which N appealed against a ruling at the trial which prevented him leading evidence from a witness R that a prosecution witness D had told R that the appellants were not involved in the killing and that D was implicating them at the request of the police. All members of the High Court considered the operation of the collateral evidence rule and s21 Evidence Act 1986 (WA) and concluded the appeal should be dismissed because no proper foundation for it was established. C appealed against rulings which allowed into evidence alleged admissions he made “off-camera” to police between video recorded interviews containing denials. The majority of the High Court allowed his appeal and ordered a new trial. Orders accordingly.

Criminal law – evidence – hearsay – admissibility of out-of-court statements to prove facts other than the fact representations made

  • Kamleh v Q [2005] HCA 2 (3 February 2005)

The High Court rejected an appeal by K against his conviction for murder. The appeal challenged the admissibility of statements made by an accomplice to others where the accomplice was not called. The Court generally concluded the statements were relevant to matters in issue and not hearsay. A majority of the Court doubted the reasoning of Mason CJ in Walton v Q (1989) 166 CLR 283 at 288. Appeal dismissed.

Migration – refugees – definition – whether circumstance that other country may accept refugee affects determination that person is a refugee – construction of international treaties

  • NAGV and NAGW of 2002 v MIMIA [2005] HCA 6 (2 March 2005)

By s36(2) the Migration Act provided for the grant of protection visas to persons to whom Australia “has protection obligations under” the Refugees Convention. By Art 33(1) that Convention required a contracting state to not expel or return (“refouler”) a refugee to the frontier of a country where the refugee would be persecuted. The appellants were citizens of Russia. The RRT found they feared persecution there because of their political views and because they were Jewish. The appellants did not wish to go to Israel as the wife was not Jewish and the son feared compulsory military service. The RRT concluded that because the appellants would be admitted to Israel, and not “refouled”, Australia did not owe them “protection obligations”, applying the decision of the Full Court of the Federal Court in MIMA v Thiyajarajah (1997) 80 FCR 543. This reasoning was upheld by the Full Court of the Federal Court which decided that while Thiyajarajah was incorrectly decided it had stood for so long it should not be reversed. The appellants’ appeal to the High Court was allowed by all members: Gleeson CJ, McHugh, Gummow, Hayne, Callinan, Heydon JJ; sim Kirby J. The Court concluded that once a person had been accepted as a person to whom Australia has protection obligations within s36(2) Migration Act, the circumstance that another country would accept the person and not “refoul” them did not derogate from that criterion [42]. Appeal allowed.

Negligence – finding council negligent where swimmer rendered quadriplegic swimming in surf between flags

  • Swain v Waverley Municipal Council [2005] HCA 4 (9 February 2005)

S was rendered quadriplegic after diving into shallow water in the surf and striking his head on a sandbank while swimming between the flags at a patrolled beach conducted by the respondent. At trial the jury concluded the respondent had been negligent by failing to advise of the sandbank but found S liable for 25 per cent contributory negligence. The NSW Court of Appeal set aside the verdict on the ground that the finding of negligence was against the evidence and the weight of the evidence. The further appeal by S to the High Court was allowed by majority: Gleeson CJ; Gummow J; Kirby J; contra McHugh J; Heydon J. Consideration by the Court of the nature of negligence, how a plaintiff establishes negligence by pointing to safer alternatives and the role of appellate courts in reviewing findings of fact and jury verdicts. Appeal allowed.

Patents – validity – fair basing of claims and specifications

  • Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58 (18 November 2004)

The High Court observed that the test of fair basing did not involve consideration of “merits”, “inventive step”, “technical contribution to the arts” and general “fairness”. Appeal allowed.

Stamp duties – calculation of duty – dutiable value of consideration

  • Chief Commissioner of State Revenue (NSW) v Dick Smith Electronics Holdings Pty Ltd [2005] HCA 3 (8 February 2005)

By s21 the Duties Act 1997 (NSW) defined “dutiable value” for the purposes of stamp duty as “the consideration (if any)” for the dutiable transaction. The High Court concluded, by majority, that in an agreement providing for the sale of shares for a price where the agreement provided the price would be reduced by the amount of a dividend paid on the shares funded by the purchaser, the “consideration” was the initial price and not the price reduced by the dividends: Gummow, Kirby, Hayne JJ; contra Gleeson CJ, Callinan J. Appeal allowed. l

THOMAS HURLEY is a member of the Victorian Bar. The full version of these judgments can be found on the AustLII website

Federal Court judgments

Cite as: (2005) 79(4) LIJ, p. 52

By Thomas Hurley

AAT appeal to Federal Court – whether fresh evidence admissible – filing of supplementary submissions after hearing

  • Phillips v Commissioner for Superannuation [2005] FCAFC 2 (11 February 2005)

A Full Court noted that an appeal on a question of law under s44(1) of the AAT Act did not permit the Federal Court to receive fresh evidence [29]. The Court observed that because a party had no right to make further submissions after a hearing, a failure by the trial judge to consider them did not constitute a denial of natural justice [35].

AAT – misunderstanding of evidence

  • Stojchevski v Secretary, DEWR [2005] FCA 58 (8 February 2005)

Conti J concluded the decision of the AAT in relation to a claim for a disability support pension under the Social Security Act 1991 (Cth) was vitiated by the misconception by the AAT of a finding appearing in a medical opinion tendered in evidence.

Administrative law – natural justice – commonwealth workers’ compensation scheme – whether state workers’ compensation insurer has right to be heard before decisions are made under commonwealth scheme to admit corporations currently covered by state scheme

  • Victorian WorkCover Authority v Andrews [2005] FCA 94 (17 February 2005)

Selway J dismissed an application brought by the Victorian compulsory state workers’ compensation body contending it should be heard before those administering the SRC Act 1998 (Cth) agreed to admit into it corporations currently covered by the Victorian scheme who would thereafter be exempt from the Victorian scheme.

Administrative law – requirement for written reasons – when written reasons adequate

  • Mees v David Kemp [2005] FCAFC 5 (11 February 2005)

The Environmental Protection and Biodiversity Conservation Act 1990 (Cth) required the respondent minister to give reasons for a freeway project in Victoria. A Full Court briefly reviewed authority as to when a statement of reasons complies with the obligations of this Act and s13 of the AD(JR) Act [54].

Australian Crime Commission – validity of summons

  • P v ACC [2005] FCA 55 (8 February 2005)

Finn J considered the requirements for a valid summons to be issued under s28(1) of the Australian Crime Commission Act 2003 (Cth).

Bankruptcy – validity of bankruptcy notice – failure to attach prescribed form – whether formal defect

  • Derriman v NAB [2005] FCA 75 (15 February 2005)

Wilcox J dismissed an appeal asserting that a bankruptcy notice was invalid for failing to contain a note in the prescribed form “for the information of the creditor”.

Corporations – financial services – whether exchange traded options and index options are “derivatives”

  • ASIC; Re Giann & Giann Pty Ltd [2005] FCA 81 (15 February 2005)

Finkelstein J considered whether exchange traded options were “derivatives” as defined in s761D of the Corporations Act 2001 (Cth).

Migration – RRT – natural justice – no opportunity to comment on adverse information

  • VWBA v MIMIA [2005] FCA 71 (11 February 2005)

Gray J set aside a decision of the RRT where the applicant had not been given an opportunity to comment on adverse information that the member obtained on hearing another application concerning the same issues. He considered whether the RRT had erred in finding persecution would not arise if Falun Gong was practised “privately”.

Migration – jurisdictional error – whether RRT biased – whether satisfaction of RRT not lawful but arbitrary and capricious

  • NADH of 2001 v MIMIA [2004] FCAFC 328 (22 December 2004)

A Full Court concluded the manner in which the RRT member debated the religious beliefs of the applicant for a protection visa established that apprehended bias was established [121].

Migration – refugee status – Albanian blood feud

  • MIMIA v SVBB [2005] FCAFC 12 (22 February 2005)

A Full Court concluded the respondent’s fear of persecution arose because he was a member of his father’s family, where his father had commenced a blood feud in Albania, and this fear of persecution was required to be disregarded by s91S(a) of the Migration Act.

Migration – RRT – whether irreducible minimum qualitatively required of a review – whether Court may look at notorious information

  • B41 of 2003 v RRT [2005] FCAFC 4 (11 February 2005)

A Full Court concluded the RRT did not err in finding there was no chance of ethnic violence occurring in Fiji three months before such violence in fact occurred. The Court declined to essay whether s424A(3) Migration Act covered the field of natural justice and whether there was an irreducible minimum degree of consideration required for an applicant’s claim.

Migration – visa cancellation – relevant matter – inaccurate statement of appellant’s criminal record

  • Lu v MIMIA [2005] FCAFC 340 (24 December 2004)

A Full Court concluded the Minister took into account an irrelevant matter, and thus made jurisdictional error, when cancelling a visa relying on a departmental submission that contained an erroneous account of the visa holder’s criminal record.

Native title – extent of rights – whether “land” includes inter-tidal zone

  • Gumana v NT [2005] FCA 50 (7 February 2005)

Selway J concluded that the grant of land rights to traditional owners of parts of Blue Mud Bay in Arnhem Land included rights over the “inter-tidal zone”, being that part of the foreshore between the low and high water mark and the area of rivers and estuaries affected by the ebb and flow of the tides. He concluded the applicants had a native title right of exclusive position [3]. He considered whether the statutory right of native title included exclusive possession as a single right or as part of other rights and the extent of any public right to fish and navigate.

Patents – novelty – obviousness – fair basis

  • Eli Lilly and Company v Pfizer Overseas Pharmaceuticals [2005] FCA 67 (10 February 2005)

Heerey J considered the validity of an Australian patent in respect of methods of treating impotence.

Trade practices – contracts – severance of illegal terms

  • Rieson v SST Consulting Services Pty Ltd [2005] FCAFC 6 (15 February 2005)

By s4L the TP Act provides that where a contract contains a provision that contravenes the TP Act, this does not affect the validity of the balance of the contract. A Full Court concluded the history of s4L supported the construction given to it in News Ltd v ARFL (1996) 64 FCR 410. The Court considered how a term that contravened s47(1) of the TP Act was to be severed.

Trade practices – misleading conduct – claim by persons lured from secure employment to high risk venture

  • Macdonald v Australian Wool Innovation Ltd [2005] FCA 105 (18 February 2005)

Weinberg J considered whether persons who left secure employment after being offered an opportunity to engage in research in a high risk but high reward venture could claim they had been misled when the respondent withdrew from that venture. Consideration of proof of unconscionable conduct and misleading conduct with respect to future matters.

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

Supreme Court judgments

Cite as: (2005) 79(4) LIJ, p. 54

By Greg Reinhardt

Conflict of interest – acting for opposing party in other litigation settled on confidential terms

  • Kalenik v Apostolidis [2005] VSC 27 (unreported, 18 February 2005, No 7588/2000, Hansen J)

The defendant sought to restrain the plaintiff from retaining a firm of solicitors as her solicitors (the solicitors) in the proceeding.

The defendant had been a defendant in other proceedings involving a partnership in which his brother was plaintiff. The solicitors had acted for his brother. The proceedings were compromised.

The solicitors had commenced acting for the plaintiff in February 2004. The defendant had retained his current solicitors to act for him in June 2004.

The deed of compromise of the other proceeding contained a clause (clause 7) which read as follows:

“7. The parties agree to keep the following matters confidential to: (a) The parties; (b) [Where relevant, to their respective partners], upon each of them undertaking to observe clause 7 of this deed; (c) Their professional advisers, save to the extent that their disclosure is required by law:


The contents of this deed;




Any matter discussed during the mediation and settlement discussions;


Any matter the subject of or referred to in the pleadings, any witness statement or any other document filed or served in the proceeding”.

It was submitted by the solicitors that they were aware of their obligations to keep the terms of settlement confidential and to hold confidential any information gained in acting in the other proceeding and were not aware of any information gained by them which would be of use to the plaintiff in the proceeding. It was said that the plaintiff herself had knowledge of various matters affecting the defendant’s business activities because of her former relationship with him but had little knowledge of the other dispute.

The defendant submitted that what had been said by Nettle J (as he then was) in Sent and Prime Life Corporation Ltd v John Fairfax Publication Pty Ltd and Hills [2002[ VSC 429 at [33] should be applied:

“Authority establishes that the court will restrain a legal practitioner continuing to act for a party to litigation if a reasonable person informed of the facts might reasonably anticipate a danger of misuse of confidential information of a former client and that there is a real and sensible possibility that the interest of the practitioner in advancing the case in the litigation might conflict with [the] practitioner’s duty to keep the information confidential, and to refrain from using that information to the detriment of the former client”.

Unlike in Sent, the solicitors had never acted for the defendant, although reference was made by Hansen J to Tricontinental Corporation Ltd v Holding Redlich (unreported, 22 December 1994, Mandie J) and Mitchell v Pattern Holdings Pty Ltd [2000] NSWSC 1015 where the solicitor had not acted for one of the parties before the court.

Was there a reasonable and sensible possibility of the misuse of confidential information? The other dispute was quite different. The dispute before the Court was not dependent on the solicitors disclosing information from the other proceeding. Moreover, the plaintiff possessed a significant amount of information regarding the defendant’s business in her own right.

“In summary, what is or will be available to the plaintiff is her own knowledge of the matters referred to in her affidavit, the information that has or will be obtained on discovery in her proceeding, and the information that may be obtained by searching the file in the partnership proceeding. All this is available in the prosecution of her claim without seeking or receiving from the persons bound by cl 7 information which that clause requires to be kept confidential.” [49]

There was no real and sensible possibility of misuse of information which clause 7 of the deed made confidential.

The application by the defendant was refused.

Entitlement of casual employee to long service leave pursuant to Long Service Leave Act 1992 (Vic)

  • Melbourne Cricket Club v Clohesy [2005] VSC 29 (unreported, 18 February 2005, No 7353/2004, Dodds-Streeton J).

In this case, it was held that a magistrate had erred in failing to apply the principle in R v The Industrial Appeals Court and Automatic Totalisators Ltd; ex parte Kingston (unreported, 26 February 1976, Gillard, Menhennitt and Dunn JJ) which provides that “continuous employment” founding entitlement to long service leave under s56 of the Long Service Leave Act 1992 (Vic) requires a continuous contract imposing a mutual obligation on employer and employee to offer and to perform employment.

PROFESSOR GREG REINHARDT is executive director of the Australian Institute of Judicial Administration and a member of the Faculty of Law at Monash University. The numbers in square brackets in the text refer to the paragraph numbers in the judgment. The full version of these judgments can be found on the AustLII website


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