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Review of Judgments

Every Issue

Cite as: (2009) 83(06) LIJ, p.62

High Court Judgments

Local government (NSW)

Councils – powers – power to compulsorily acquire land – power not available where land to be resold – whether land acquired as part of a development where it is to be held by council on trust for developer in exchange for money is a “sale”

In Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12 (2 April 2009) the High Court considered how the purpose for which a local council acquired land and whether that purpose included resale was to be discerned for the purpose of s188(1) of the Local Government Act 1993 (NSW). The Court concluded that the acquisition of land by a council for the council to hold on trust for a developer in exchange for payment amounted to acquisition of the land for a resale and the compulsory acquisition was not authorised by the Act. Appeal against decision of the NSW Court of Appeal allowed and decision at first instance by Land and Environment Court restored: French CJ; Gummow, Hayne, Heydon and Kiefel JJ jointly.

Thomas Hurley is a Victorian barrister, ph 9225 7034, email The full version of this judgment can be found at

Federal Court Judgments

Cite as: (2009) 83(06) LIJ, p.62

Constitutional law

Acquisition of property on just terms

In Spencer v Commonwealth of Australia [2009] FCAFC 38 (24 March 2009) a Full Court dismissed a claim that commonwealth laws that provided financial grants to New South Wales for a scheme that prevented the clearing of native vegetation effected the compulsory acquisition of the appellant’s farming property by making it unviable.


Review of earlier authority as to the exclusion of the rules of natural justice

In Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41 (1 April 2009) a Full Court concluded that the analysis in Lay Lat v MIMIA (2006) 151 FCR 214 of s51A of the Migration Act 1958 (Cth) as the “exclusive statement” of the rules of natural justice for decisions of the MRT and as a means of reversing the effect of Re Miah ex parte MIMIA (2001) 206 CLR 57 was correct and should not be reconsidered.


Tribunals – natural justice – clear oral particulars of adverse matters

In SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 (15 April 2009) a Full Court considered the operation of s424AA of the Migration Act 1958 (Cth) that permitted the RRT to verbally give an applicant at the hearing “clear particulars” of adverse matters to satisfy the requirement of “statutory” natural justice set by s422B.


Whether MRT can review decision not to approve training

In Suh v Minister for Immigration and Citizenship [2009] FCAFC 42 (1 April 2009) a Full Court concluded the MRT could not review a decision of the Minister not to approve a nomination of occupational training for cl 442.222(1) of the Migration (1994) Regulations.


Elections – Court of Disputed Returns – decisions of court final – whether appeal lies from decision of single judge of Federal Court to whom petition referred

In Smith v Australian Electoral Commission [2009] FCAFC 43 (1 April 2009) a Full Court concluded that s368 of the Commonwealth Electoral Act 1918 (Cth) was valid and prevented an appeal from a decision of a single member of the Federal Court determining a petition referred to the Federal Court from the High Court as the Court of Disputed Returns. The Court found it unnecessary to determine whether this provision conflicted with s73 of the Constitution.


Pre-issue discovery – reasonable cause to believe cause of action exists – appeal

In Apache Northwest Ltd v Newcrest Mining Pty Ltd [2009] FCAFC 39 (31 March 2009) a Full Court concluded pre-issue discovery should not be ordered under FCR O.15 rls 6 and 11 where the applicant had not established a reasonable cause to believe it had suffered loss and damage as a result of what was claimed to be misleading and deceptive representations.

Social security

Disability support pension – means test – whether trust assets may be attributed to claimant – whether trust assets “a controlled private trust”

In Secretary, Department of Families, Housing, Community Services & Indigenous Affairs v Elliott [2009] FCAFC 37 (24 March 2009) a Full Court affirmed a decision of the Social Security Appeals Tribunal that the decision to cancel the respondents’ disability support pension be set aside as they were beneficiaries under a trust created by a parent. The Court concluded that as the class of potential beneficiaries was open, the beneficial interests of the beneficiaries were incapable of measurement and the trust was not one to which the “control test” in s1207V(2) of the Social Security Act 1991(Cth) applied.

Trade marks

“Use” of trade mark

In E & J Gallo Winery v Lion Nathan Pty Ltd [2009] FCAFC 27 (24 March 2009) a Full Court considered what constituted “use” of a trade mark for ss7 and 92 of the Trade Marks Act 1995 (Cth).

Thomas Hurley is a Victorian barrister, ph 9225 7034, email The full version of this judgment can be found at

Federal Court Judgments

Cite as: (2009) 83(06) LIJ, p.63

Oral Calderbank offers

Giller v Procopets (No 2) [2009] VSCA 72 (unreported, 8 April 2009, No 7804/1099, Maxwell ACJ, Ashley and Neave JJA).

The Court of Appeal was asked to consider whether the appellant/plaintiff was entitled to indemnity costs of a proceeding, at least from the date of an oral offer of compromise.

The appellant maintained that on the eleventh day of a trial she had made an oral offer to compromise the proceedings on the basis of a payment to her of $100,000 inclusive of costs. She recovered by way of judgment a sum of $135,000 consisting of $45,000 by way of adjustment of property interests under Part IX of the Property Law Act 1958 (Vic), $50,000 as damages for assault (of which $13,000 was awarded by way of exemplary damages) and $40,000 for breach of confidence.

It was contended for the respondent that special orders ought not to be made in the appellant’s favour due to adverse findings by the trial judge in relation to the appellant’s credibility and, in particular, the fact that she was a dishonest witness.

The Court of Appeal proceeded to deal with the appellant’s offer on the assumption that it constituted a valid Calderbank offer (see Calderbank v Calderbank [1976] Fam 93; [1975] 3 WLR 586) and noted that the question was whether it was unreasonable, in all the circumstances, for the respondent to reject that offer. The Court referred to what had been said in Hazeldene’s Chicken Farm v Victorian WorkCover Authority [2005] VSCA 298 at [25] (see January/February 2006 LIJ, p71):

“The discretion with respect to costs must, like every other discretion, be exercised taking into account all relevant considerations and ignoring all irrelevant considerations. It is neither possible nor desirable to give an exhaustive list of relevant circumstances. At the same time, a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily have regard at least to the following matters:

(a) the stage of the proceeding at which the offer was received;

(b) the time allowed to the offeree to consider the offer;

(c) the extent of the compromise offered;

(d) the offeree’s prospects of success, assessed as at the date of the offer;

(e) the clarity with which the terms of the offer were expressed;

(f) whether the offer foreshadowed an application for an indemnity costs in the event of the offeree’s rejecting it”. [12]

The Court of Appeal noted that a technical approach should not be taken as to whether a Calderbank offer had been made: BMD Major Projects Pty Ltd v Victorian Urban Development Authority (No 2) [2007] VSCA 441. [4]

The Court said:

“So far as the property adjustment claim was concerned, the couple had lived together for a relatively short period and Mr Procopets made almost all the financial contributions to the property of the parties. It was not unreasonable for him to consider that Ms Giller might receive only a small pecuniary award in her property adjustment claim and that her breach of confidence claim, which raised novel legal questions, was unlikely to succeed. Mr Procopets must have been aware that Ms Giller was likely to recover damages for his assaults on her, but he might reasonably have taken the view that the amount awarded for all of her claims would be significantly less than $100,000”. [14]

It followed that the appellant was not entitled to any special costs order.

Moreover, in view of the trial judge’s adverse findings in relation to the appellant, her party and party costs should be reduced by 25 per cent. As a successful appellant, the appellant should be entitled to her costs of the appeal on a party and party basis.

The Court of Appeal went on to consider the interest to which the appellant was entitled in relation to the judgment obtained, based on the provisions of the Supreme Court Act 1986 (Vic).

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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