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Reviews of judgments

Every Issue

Cite as: (2009) 83(02) LIJ, p. 58

High Court Judgments

Cite as: (2009) 83(02) LIJ, p. 58

Criminal law

Miscarriage of justice

In Cesan v Q [2008] HCA 52 (6 November 2008) the High Court allowed appeals against convictions and ordered a new trial where it was established the trial judge had fallen asleep for various times on each of the eleven days of the trial of the appellants. Consideration of whether there had been a miscarriage of justice within s6(1) of the Criminal Appeal Act 1912 (NSW) and whether it had resulted in any substantial miscarriage of justice: French CJ; Gummow J; Hayne, Crennan, Kiefel JJ; Heydon J. Appeal allowed. New trial ordered.

Income tax

Deductions – legal expenses – representation at public service discipline proceedings

In C of T v Day [2008] HCA 53 (12 November 2008) the High Court considered when legal fees incurred by a public servant defending public service charges were deductable. The Court concluded the expenses were properly incurred in an activity productive of assessable income and deductable. The Court did not accept an argument that the taxpayer was not engaged in conduct that could be the subject of disciplinary charges: Gummow, Hayne, Heydon, Kiefel JJ; Kirby J. Appeal dismissed.

Private international law

Stay of proceedings – forum non-conveniens

In Puttick v Tenon Ltd [2008] HCA 45 (12 November 2008) the High Court in a joint judgment considered how the question of whether a state court was a clearly inappropriate forum was to be determined. The Court concluded the Victorian Supreme Court had erred in deciding it had sufficient material to decide that it was a clearly inappropriate forum and had erred in permanently staying the plaintiff’s proceeding. Appeal allowed. Orders below set aside. Summons seeking stay of proceedings dismissed.

Stamp duty

Dutiable agreements – lease – whether agreement giving person access to rail lines in NSW subject to duty as a lease

In Asciano Services Pty Ltd v Chief Commissioner of State Revenue (NSW) [2008] HCA 46 (25 September 2008) the High Court concluded in a joint judgment that an agreement by which a party was granted, subject to payment of access charges, access to rail infrastructure owned by the Rail Access Corporation on land owned by the State Rail Authority was the source of the right to use the land on which the facilities were placed and assessable to duty under the Duties Act 1997 (NSW). Gummow, Kirby, Hayne, Crennan, Kiefel JJ. Appeal dismissed.

Trade practices

Infrastructure facility

In BHP Billiton Iron Ore Pty Ltd v National Competition Council [2008] HCA 45 (24 September 2008) the High Court in a joint judgment dismissed an appeal from a decision of the Federal Court that concluded a railway that took ore from a mine to a port was an “infrastructure facility” for s44B of the Trade Practices Act that was not part of the “production process”: Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ. Appeal dismissed.

THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email The full version of these judgments can be found at

Federal Court Judgments

Cite as: (2009) 83(02) LIJ, p. 59

Administrative law

Agreements with the “secretary” – changes in forms

In Lim v Secretary, Dept of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752 (21 November 2008) Bennett J considered agreements in the Newstart system under the Social Security Act 1991 (Cth) were with the “secretary” by reason of delegation and that the forms were approved even though they had been altered.


Assignment of chose in action

In Primelife Corporation v Bufalo [2008] FCA 1742 (20 November 2008) Jessup J considered when an appeal lay against a decision of a trustee in bankruptcy not to assign a chose in action of the bankrupt because the action would be hopeless.


Notification of tribunal decisions

In SZKNX v MIC [2008] FCAFC 176 (21 October 2008) a Full Court concluded that whether the decision of the High Court in WACB v MIC (2004) ALJR 94 and the decision of the Full Court in MIMA v SZKKC (2007) 159 FCR 565 required a person subject to an RRT decision to physically receive the decision or not to commence the time for application to the Federal Magistrates Court, it was clear that SZKNX had received the decision in time.


RRT – whether evidence of wife to RRT constituted “information”

In SZJZB v MIC [2008] FCA 1731 (19 November 2008) Jagot J concluded the evidence the wife gave to the RRT in her application for a protection visa as to where the husband and wife lived was evidence that could be a reason for rejecting the husband’s application and he should have been appraised of it under s424A of the Migration Act.

Passing off

Proof of reputation

In Hansen Beverage Co v Bickfords (Australia) Pty Ltd [2008] FCAFC 181 (14 November 2008) a Full Court concluded the primary judge had erred in deciding whether a party had a prior reputation in the sports drink industry in a passing off proceeding by reference to the “target market” and not focussing on the “relevant market” (extreme sports enthusiasts).


Utility of declarations

In Cruse v Multiplex Ltd [2008] FCAFC 179 (5 November 2008) a Full Court considered whether there was any utility in making a declaration that recorded the contravention of the Workplace Relations Act by a union where the penalty imposed was minor. The Court applied Carr v Higgins Coating Pty Ltd (2005) 148 IR 201 and made the declaration.


Unreasonable and uncertain decision

In Telstra v ACCC [2008] FCA 1758 (24 November 2008) Rares J concluded that in determining under Part XIC of the TP Act a dispute as to access to the telecommunications system, the ACCC had misunderstood the mandatory terms of s152AQB and made a decision that was unreasonable and uncertain. Consideration of the need to construe the words used in Acts and not ministerial statements or comments in second reading speeches.

THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email The full version of these judgments can be found at

Supreme Court judgments

Cite as: (2009) 83(02) LIJ, p. 60

Misconduct of counsel in civil trial

Rees v Bailey Aluminium Products Pty Ltd & Anor [2008] VSCA 244 (unreported, 5 December 2008, No 7149/2002, Ashley and Redlich JJA and Coghlan AJA).

The appellant sought to set aside a jury verdict obtained by the respondent/defendant in Supreme Court proceedings for personal injury. The appellant’s claim arose out of the use of an extension ladder manufactured and distributed by the respondent. It was alleged that the ladder had been negligently designed so that when the ladder was over-extended it might collapse.

The principal matter raised on appeal concerned the alleged misconduct of senior counsel for the respondent at the trial. The trial judge held that she was not able to substitute her own judgment for the jury’s verdict. While this matter was raised on appeal, as a result of agreement between the parties that the jury’s verdict could only be set aside if the Court was satisfied that the conduct of counsel was such as to render the trial unfair, it was not pursued before the Court of Appeal.

Coghlan AJA identified, non-exhaustively, a number of instances in which it could be said that counsel’s conduct may have rendered the trial unfair, namely (at [136]):

  • “An allegation was raised, in cross-examination of Phillips [the third party, a friend of the appellant, who had asked the appellant to assist him in doing some plumbing work during which the accident giving rise to the claim had occurred], that he and the appellant had colluded for Phillips to give false evidence. The allegation bore upon a fact in issue, and upon the credit of both the appellant and Phillips. The allegation, in essence of fraudulent conduct, had no evidentiary foundation and should not have been put. It had not been put to the appellant. It was late-made and, for reasons which we have explained, it placed appellant’s counsel in a very difficult forensic position.
  • The ‘restless nights’ allegation, which bore upon the allegation of collusion, was put to the plaintiff but not to Phillips. It was based upon a without prejudice communication. The cross-examination in any event misstated the content of the communication, and the questions were objectionable in form.
  • The appellant was cross-examined about an answer to interrogatory given by Phillips. The cross-examiner sought the witness’s comment upon the truthfulness of what Phillips had allegedly said on his oath. The cross-examination was in breach of the rule in Queen’s case. The answer itself was misrepresented.
  • Counsel misstated an answer given by the appellant as to what he would tell his students about the use of ladders. He undertook to correct the error, but did not do so.
  • In apparent disobedience of the judge’s ruling, ‘in court’ demonstrations were used by counsel, in cross-examination of the appellant, in an attempt to show that the ladder could not easily be extended beyond the stops.
  • Counsel offered personal opinion and comment in cross-examination, cut off witnesses, asked questions which assumed facts in issue, asked argumentative questions, and misstated the import of answers which had been given.
  • Counsel cross-examined the appellant’s expert witness in an attempt to undermine the appellant’s credit.
  • Counsel, in opening the respondent’s case, criticised the appellant and the expert witness called for the appellant; and misstated evidence given by the appellant.
  • Counsel adduced evidence from a non-expert, in defiance of the judge’s ruling, as to the state of the ladder. When the judge pulled him up, his response was at least extremely discourteous.
  • Counsel’s closing address was in part inappropriately personalised, and consisted of highly prejudicial anecdotes. Insofar as the judge’s charge provided any antidote, it was inadequate”.
  • it is open to counsel in the course of the trial of a civil proceeding to adopt a robust approach, “the principles of a fair trial are not to be diluted or compromised because the jurisdiction may encourage robust advocacy”. (at [16])
  • AJA said (at [137]):
  • scope of the misconduct, and the fact that it occurred at a number of different points during the trial – rather than being a single incident on a confined occasion – in our opinion heightened its potential for prejudice. That is so although the trial was a lengthy one. On the other hand –
  • The jury verdict was unsurprising – although it was not mandated.
  • The trial judge refused the belated application by appellant’s counsel to vacate the jury verdict.
  • As we have observed many times, appellant’s counsel did not object or seek directions or the jury’s discharge when he might have done. Still further, he apparently made a forensic decision to fight fire with fire. Hence his sometimes personalised attack upon respondent’s counsel in the course of his final address.
  • All of the misconduct, we think, might have been cured by objection being taken and by appropriately firm directions being given”.
  • Court concluded, after considerable hesitation, that a new trial should be ordered.

PROFESSOR GREG REINHARDT is executive director of the Australasian Institute of Judicial Administration and a member of the Faculty of Law at Monash University, ph 9600 1311, email The numbers in square brackets in the text refer to the paragraph numbers in the judgment. The full version of this judgment can be found at


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