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Reviews of judgments

Every Issue

Cite as: (2008) 82(6) LIJ, p. 70

High Court Judgments

Cite as: (2008) 82(6) LIJ, p. 70

By Thomas Hurley

Accident Compensation Act (Vic)

Procedure for determining an injury a “serious” injury – nature of appeal from decision of County Court

In Dwyer v Calco Timbers Pty Ltd [2008] HCA 13 (16 April 2008) the High Court considered the nature of an “appeal”. In a joint judgment the High Court concluded the Victorian Court of Appeal had erred by considering that in appeals to that court from the County Court as to whether a worker had suffered a serious injury, the Court of Appeal was to defer to the expertise of the County Court as akin to a specialist tribunal.

Constitutional law

Restraint of free trade

In Betfair Pty Ltd v Western Australia [2008] HCA 11 (27 March 2008) sub-s42(1aa) of the Betting Control Act 1954 (WA) made it an offence in Western Australia to bet through the use of a betting exchange and s27D(1) made it an offence for unlicensed persons to publish details of forthcoming horse races in Western Australia. One plaintiff was a Tasmanian company that conducted a betting exchange and another was a Western Australian punter. They contended the provisions were invalid as preventing interstate betting. All members of the High Court found that the provisions were invalid for being a burden on interstate trade contrary to s92 of the Constitution: Gleeson CJ, Gummow, Kirby, Crennan with Kiefel JJ; sim Heydon J. Questions in special case answered accordingly.

Contracts

Termination – damages – when covenants touch the land

In Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10 (27 March 2008) the High Court in a joint judgment considered what damages could be recovered for termination of a lease for failure to comply with a term that was not expressly rendered essential. Further consideration of what covenants in a lease touch and concern the land and when the assignee of the leasehold reversion is entitled to terminate a lease and recover damages from the lessee without privity of contract between them. Appeal allowed: Gummow, Kirby, Heydon, Crennan and Kiefel JJ.

Family Court

Children – order for return of child from foreign country – whether father was living with mother as de facto partner when child born

In MW v Director-General, Department of Community Services [2008] HCA 12 (28 March 2008) the High Court considered the operation of reg 6 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) in relation to a child removed by the father to New Zealand. Appeal allowed: Gummow, Heydon, Crennan JJ jointly; contra Gleeson CJ; Kirby J. l

THOMAS HURLEY is a Victorian barrister. The full version of these judgments can be found at
http://www.austlii.edu.au.

Federal Court Judgments

Cite as: (2008) 82(6) LIJ, p. 70

By Thomas Hurley

Bankruptcy

Review of sequestration order

In Totev v Sfar [2008] FCAFC 35 (12 March 2008) a Full Court considered how the requirements to be satisfied for obtaining a sequestration order were to be satisfied in a de-novo hearing to review the refusal to make one.

Contract

Tender – natural justice

In Eden Construction Pty Ltd v State of NSW [2008] FCA 376 (20 March 2008) Lindgren J concluded a person considering accepting a tender was under no obligation to inform a party tendering that it had received adverse information about that party.

Federal Court

Orders – whether order on part of claim final

In Jefferson Ford Pty Ltd v Ford Motor Company [2008] FCAFC 60 (15 April 2008) a Full Court concluded that orders disposing of part of a claim were final and an appeal lay from them as of right.

Freedom of information

Commercial activities of the CSIRO

In Bell v CSIRO [2008] FCAFC 40 (20 March 2008) a Full Court considered when the internal research activities of the CSIRO were carried out for commercial purposes so as to be exempt from release under the FOI Act.

Industrial law

Injunctions – interim and interlocutory injunctions

In Police Federation of Australia v Nixon [2008] FCA 467 (18 April 2008) Ryan J considered how the presumption created by s809(1) of the Workplace Relations Act as to the reason why conduct was occurring was to be applied and whether there was any difference between an interim and an interlocutory injunction.

Intellectual property

Ownership of invention by university employee

In University of WA v Gray (No 2) [2008] FCA 489 (17 April 2008) French J concluded there was no implied term in the contract of employment of an academic that any invention made in the course of his employment would be the property of the university.

Migration

MRT – allegation that migration agent was fraudulent

SZIVK v MIC [2008] FCA 334 (13 March 2008) Finkelstein J concluded the FMC had erred in declining to consider an allegation that a migration agent had conducted himself fraudulently (see SZFDE v MIC (2007) 237 ALR 64) without that agent being heard in the client’s judicial review proceeding.

Migration

MRT – duty to inquire

In Bunnag v MIC [2008] FCA 357 (18 March 2008) McKerracher J concluded the MRT did not err in failing to make inquiries as to the situation of the nominating spouse where it was informed she was unable to give evidence as she was an involuntary patient in a mental health facility.

Migration

When view that information is reliable is “information”

In MIC v SZHXF [2008] FCAFC 36 (13 March 2008) a Full Court concluded that the opinion of the RRT that a source of information was reliable was not itself information that had to be disclosed under s424A(3)(a) of the Migration Act.

Native title

Reasons of tribunal – confidential evidence

In Parker v WA [2008] FCAFC 23 (7 March 2008) a Full Court concluded the National Native Title Tribunal had not erred in finding a “future act” was before it and its reasons set out the material facts and satisfactorily dealt with confidential evidence.

THOMAS HURLEY is a Victorian barrister. The full version of these judgments can be found at http://www.austlii.edu.au.

Supreme Court Judgments

Cite as: (2008) 82(6) LIJ, p. 71

More on legal professional privilege

Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd [2008] VSCA 59 (unreported, 11 April 2008, No 3736/2008, Maxwell P and Redlich JA).

This was an application for leave to appeal a judge’s decision refusing the applicant company’s claim for legal professional privilege in reports commissioned regarding a factory fire.

The applicant’s manager had commissioned reports for operational purposes. Its in-house solicitor had intervened and commissioned the reports, so it was argued, for the dominant purpose of use in litigation.

Maxwell P, delivering the judgment of the Court refusing leave to appeal, referred to what had been said by Kenny J in Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247:

“The purpose for which a document is brought into existence is a question of fact. Where there are a number of purposes for the creation of a document, it can be difficult to identify the dominant purpose. The dominant purpose must be determined objectively, having regard to the evidence, the nature of the documents and the parties’ submissions. The purpose will ordinarily be that of the maker of the document, but this will not always be the case”. [30]

Reference was made also to the judgment of Young J in Australian Wheat Board v Terrence Cole [2006] FCA 1234.

Here there were many purposes for which the reports had been commissioned and, so far as the applicant’s manager was concerned, it could not be said that the dominant purpose was obtaining legal advice. While it might be possible, in appropriate cases, to conclude that the re-engagement of an expert by a lawyer, that is, the creation of a new retainer, might ify or revoke the original purposes for engaging the expert, that was not the case here. The fact that the expert was engaged by the lawyer on a confidential basis could not assist. Matters of substance and not form will determine questions of privilege.

The application for leave to appeal was refused.

Failure to serve writ on defendants against whom judgment in default of defence entered

Granite Springs Pty Ltd v Grguric & Ors [2008] VSC 134 (unreported, 24 April 2008, No 2020/2000, Byrne J).

The applicants, Mr and Mrs Grguric, brought an application to set aside a judgment obtained against them in default of defence. They were two of four defendants.

The applicants contended that they had not been served with the writ and that an appearance entered on their behalf had been entered without their authority.

Byrne J stated that he needed to be satisfied on the balance of probabilities that the writ had not been served on the applicants. Their evidence that the writ had not been served on them was largely uncontradicted. In the circumstances, the default judgment should be set aside.

PROFESSOR GREG REINHARDT is executive director of the Australasian 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 this judgment can be found at http://www.austlii.edu.au/databases.html.

Legislation Update

Cite as: (2008) 82(6) LIJ, p. 72

Victorian 2008 Assents
(as at 9/4/2008)

2008 No. 5 Classification (Publications, Films and Computer Games) (Enforcement) Amendment Act

2008 No. 6 Consumer Credit (Victoria) and Other Acts Amendment Act

2008 No. 7 Crimes Amendment (Child Homicide) Act

2008 No. 8 Criminal Procedure Legislation Amendment Act

2008 No. 9 Infringements and Other Acts Amendment Act

2008 No. 10 Legislation Reform (Repeals No. 1) Act

2008 No. 11 Professional Boxing and Combat Sports Amendment Act

Victorian 2008 Regulations
(as at 9/4/2008)

2008 No. 15 Legal Profession (Admission) Rules

2008 No. 16 Prevention of Cruelty to Animals (Prohibited Procedures) Regulations

2008 No. 17 Subordinate Legislation (Road Transport (Dangerous Goods) (Licence Fees) Regulations 1998 – Extension of Operation) Regulations

2008 No. 18 Subordinate Legislation (Freedom of Information Regulations 1998 – Extension of Operation) Regulations

2008 No. 19 Veterans (Patriotic Funds) Regulations

2008 No. 20 Liquor Control Reform (Prohibited Supply) Amendment Regulations

2008 No. 21 Subordinate Legislation (Environment Protection (Prescribed Waste) Regulations 1998 – Extension of Operation) Regulations

2008 No. 22 Firearms Regulations

Commonwealth 2008 Regulations
(as at 9/4/2008)

2008 No. 11 Electronic Transactions Amendment Regulations 2008 (No. 1)

2008 No. 12 Extradition (Hong Kong) Regulations

2008 No. 13 Family Law (Superannuation) Amendment Regulations 2008 (No. 1)

2008 No. 14 Veterans’ Entitlements (DFISA-like Payment) Amendment Regulations 2008 (No. 1)

2008 No. 15 Parliamentary Entitlements Amendment Regulations 2008 (No. 1)

2008 No. 16 Trade Practices Amendment Regulations 2008 (No. 1)

2008 No. 17 Trade Practices (Consumer Product Safety Standard) (Hot Water Bottles) Regulations

2008 No. 18 Federal Court (Bankruptcy) Amendment Rules 2008 (No. 1)

2008 No. 19 Circuit Layouts Amendment Regulations 2008 (No. 1)

2008 No. 20 Customs Amendment Regulations 2008 (No. 1)

2008 No. 21 Customs Amendment Regulations 2008 (No. 2)

2008 No. 22 Customs (Prohibited Exports) Amendment Regulations 2008 (No. 1)

2008 No. 23 Customs (Prohibited Imports) Amendment Regulations 2008 (No. 1)

2008 No. 24 International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2008 (No. 1)

2008 No. 25 Australian Postal Corporation Amendment Regulations 2008 (No. 1)

2008 No. 26 Australian Postal Corporation (Performance Standards) Amendment Regulations 2008 (No. 1)

2008 No. 27 Seafarers Rehabilitation and Compensation Levy Amendment Regulations 2008 (No. 1)

2008 No. 28 Product Stewardship (Oil) Amendment Regulations 2008 (No. 1)

2008 No. 29 Charter of the United Nations (Dealing with Assets) Regulations

2008 No. 30 Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Regulations

2008 No. 31 Charter of the United Nations (Sanctions – Iran) Regulations

2008 No. 32 Health Insurance (Pathology Services Table) Amendment Regulations 2008 (No. 1)

2008 No. 33 Migration Amendment Regulations 2008 (No. 1)

2008 No. 34 National Transport Commission (Model Rail Safety (Amendment No. 1) Bill) Regulations

2008 No. 35 Income Tax Assessment Amendment Regulations 2008 (No. 1)

2008 No. 36 Federal Magistrates Court (Bankruptcy) Amendment Rules 2008 (No. 1)

2008 No. 37 Schools Assistance (Learning Together – Achievement Through Choice and Opportunity) Amendment Regulations 2008 (No. 1)

2008 No. 38 Workplace Relations Amendment Regulations 2008 (No. 1)

2008 No. 39 Workplace Relations Amendment Regulations 2008 (No. 2) l

This summary is prepared by the information editors of SAI GLOBAL to help practitioners keep informed of recent changes in legislation. For further information ph 9278 1133.

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