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Reviews of judgments

Every Issue

Cite as: (2003) 77(10) LIJ, p.72

High Court Judgments

Cite as: (2003) 77(10) LIJ, p.72

By Thomas Hurley

Appeal and new trial – findings by primary judge creating version of events not advanced by either party – powers of Appellate Court.

  • Suvaal v Cessnock City Council [2003] HCA 41 (6 August 2003).

S sued the nominal defendant and relevant municipal council for damages for injuries asserting a motor vehicle forced him and his bicycle onto a part of the road which was potholed. The Master determined that S left the road following a momentary lapse of concentration. This theory was not advanced by any party in the trial. The Court of Appeal reversed the judgment for S and his appeal to the High Court was dismissed by majority: Gleeson CJ with Haydon J; Callinan J; contra McHugh, Kirby JJ. Consideration of how and when Appellate Courts can review findings of fact. Appeal dismissed.

Criminal law – burglary – offence committed while on another’s place without that person’s consent – proof – whether prosecution required to negative consent.

  • King v Q [2003] HCA 42 (6 August 2003).

K was convicted of aggravated burglary contrary to s401(2) of the Criminal Code (WA). He committed acts of violence on his estranged wife after obtaining entry to her premises by a trick and in an apparent breach of a violence restraining order made under the Restraining Orders Act 1997 (WA). By s62 of this Act it was a defence to a prosecution under it to establish the protected person consented to the entry. The Court of Criminal Appeal in WA accepted that the trial judge erred in observing that it was for the accused to prove he was on the premises with consent. All members of the High Court agreed that the appeal be dismissed on the basis that the onus remained at all times on the prosecution to prove all elements of the charge, including negativing consent, and this had been properly explained to the jury and occurred [10], [50]. Appeal dismissed.

Criminal law – evidence – identification – whether need for caution where reliability of evidence not in dispute.

  • Dhanhoa v Q [2003] HCA 40 (5 August 2003).

The High Court by majority (Gleeson CJ with Hayne J; McHugh J with Gummow J; contra Callinan J) dismissed an appeal where an appellant asserted his conviction involved a miscarriage of justice because the trial judge failed to accept s116 of the Evidence Act 1995 (NSW) provided a mandatory requirement to warn a jury in relation to identification evidence even where the point was not taken at trial. Appeal dismissed.

Industrial law – constitutional law – power to authorise industrial award extending to employers not in Australia – offshore employers of crews of vessel in Australian waters.

  • Re Maritime Union of Australia & Ors; Ex parte CSL Pacific Shipping Inc [2003] HCA 43 (7 August 2003).

Following changes brought by the ANL (Conversion into Public Company) Act 1988 (Cth) two ships operated by ANL on the coast of Australia came to be acquired in 2000 by a company (CSL Pacific) incorporated in Barbados which together with an Australian corporation was ultimately owned by a Canadian corporation. The two ships variously operated in Australian waters under licences granted under the Navigation Act 1912 (Cth). By sub-s5(3)(b) the Workplace Relations Act 1996 (Cth) defined “industrial issue” to include matters relating to the relationship between employers and maritime employees relating to trade or commerce within Australia and between Australia and other places. In January 2002 a group of unions (the prosecutors) applied to the AIRC to vary certain awards to add any persons who from time to time employed the crew of the ships as subject to the award. A Full Bench of the AIRC found in September 2002 that an industrial issue existed and it had jurisdiction to consider whether to vary the award. A single justice of the High Court granted an order nisi for constitutional writs. The High Court discharged the order nisi in a joint judgment given by all seven members. The court concluded the provisions of the WR Act and the Navigation Act were not “at odds” [29] and that the provisions of the WR Act were not to be read down to exclude authoring awards where an employer has no “presence” in Australia [39]. The court rejected submissions that the proposed award would affect international laws concerning “innocent passage” [48] and customary international law [54]. The court finally concluded the proceedings in the AIRC had been properly served and in any event jurisdiction arose by reference to the objectively established relationship in employment in Australia. Order nisi discharged.

Insurance – contracts – public liability cover of operator of marine pleasure craft used for commercial paraflying – whether insurance a contract to which Marine Insurance Act 1909 (Cth) applied.

  • Gibbs v Mercantile Mutual Insurance (Aust) Ltd [2003] HCA 39 (5 August 2003).

From 1986 the appellant operated a marine pleasure craft on the Swan River in Perth for paraflying. He insured the vessel with the respondent against liability to third parties. In 1989 a woman sued the appellant after receiving injuries while paraflying. The respondent denied indemnity contending the insurance policy was a contract under the Marine Insurance Act 1909 (Cth) and that therefore the failure of the appellant/insured to give notice of the occurrence could not be relieved under the provision under the Insurance Contracts Act. This was rejected by the primary judge but accepted by the Full Court of the Supreme Court of WA and on appeal, by a majority of the High Court: Gleeson CJ; Hayne, Callinan JJ; contra McHugh J; Kirby J. The majority observed providing indemnity against liability to third parties was a form of marine insurance and the activity of paraflying took place in estuarine waters to which the Marine Insurance Act applied. (Subsequently the Insurance Contract Act was amended to provide the Marine Insurance Act does not apply to contracts of insurance in respect of pleasure craft). Consideration of the relationship between marine and general insurance. Appeal dismissed.

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

Federal Court Judgements

Cite as: (2003) 77(10) LIJ, p.74

By Thomas Hurley

Bankruptcy – whether execution of judgment an “action” for Limitations of Actions Act.

  • Dennehy v Reasonable Endeavours Pty Ltd [2003] FCAFC 158 (1 August 2003).

A Full Court concluded that s5(4) of the Limitations of Actions Act 1958 (Vic) did not prevent steps being taken in the enforcement of a judgment.

Courts – discovery – release from implied undertaking as to use of discovered documents.

  • ASIC v Marshall Bell Hawkins Ltd [2003] FCA 833 (8 August 2003).

Merkel J considered whether special circumstances justified a party being released in the interests of the administration of justice or in the public interest from the implied undertaking not to use discovered documents other than for the proper conduct of the proceeding in which they were discovered.

Courts – taxation of costs – review of decision of taxing officer.

  • Cachia v Westpac Financial Services Ltd [2003] FCA 817 (8 August 2003).

Hely J considered whether the review by a judicial officer of a decision of the taxing officer must be a review de novo.

Industrial law – certified agreements – prohibition a2ibition limited to matter covered by agreement or all aspects of employment relationship.

  • AIG v AFMEPKIU [2003] FCAFC 183 (15 August 2003).

A Full Court concluded the prohibition imposed by s170MN of the Workplace Relations Act 1996 should be construed in a limited way to preserve flexibility and the prohibition against industrial action referred to should be limited to matters covered by the agreement.

Industrial law – determination by AIRC that employment termination not harsh etc. – subsequent proceeding to interpret industrial instrument.

  • Miller v University of NSW [2003] FCAFC 180 (14 August 2003).

A Full Court concluded a decision by the AIRC that a person’s dismissal was not harsh etc. did not create an estoppel as it was a decision by a body of limited jurisdiction and not a Court [83].

Industrial law – registered organisation – amendment of rules – role of Full Bench of AIRC on appeal.

  • CFMEU v AIRC [2003] FCAFC 196 (22 August 2003).

A Full Court considered the role of a Full Bench reviewing a decision by a presidential member to consent to alterations in the eligibility rules of a union and when fresh evidence can be called.

Migration – natural justice – finding by RRT that documents potentially corroborating the appellant’s were forged without notice to appellant.

  • WACO v MIMIA [2003] FCAFC 171 (15 August 2003).

A Full Court concluded a decision of the RRT was affected by jurisdictional error where the RRT concluded the documents which potentially corroborated a critical aspect of the appellant’s claims were not genuine without giving notice of this to the appellant [58].

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: (2003) 77(10) LIJ, p.76

By Greg Reinhardt

Award of statutory interest for past loss of earnings

  • McLennan v Radford [2003] VSCA 114 (unreported, 22 August 2003, No 5409/2001, Phillips and Eames JJA and Warren AJA).

This appeal raised the question of the proper approach to be taken in relation to statutory interest for past loss of earnings where a jury returns a lump sum verdict for pecuniary loss. Section 93(15) of the Transport Accident Act 1986 (Vic) provides:

“A court must not, in relation to an award of damages in accordance with this section, order the payment of interest, and no interest shall be payable, on an amount of damages, other than damages referable to loss actually suffered before the date of the award, in respect of the period from the date of the death of or injury to the person in respect of whom the award is made to the date of the award.”

A County Court jury had returned a verdict for the plaintiff of $135,000 for pain and suffering and $190,000 for pecuniary loss in a proceeding by the respondent/plaintiff for personal injuries arising out of a motor vehicle accident. The trial judge had allowed interest on $118,423.56 of the sum awarded by the jury for pecuniary loss said to represent the plaintiff’s past loss of earnings. This was said to be arrived at on the basis of what would have been earned by a comparable employee during the period to the date of trial.

It was argued for the appellant/defendant that to allow interest on the sum of $118,423.56 demonstrated a lack of proportionality, namely, to accord to the jury’s verdict a relatively small award for future loss of earnings.

The Court of Appeal was of the view that it was wrong for the trial judge to have approached the matter on the basis that the respondent’s hypothetical earnings should be assessed as on a par with a “comparable employee”. There was no evidence on which it could be concluded that the respondent would have attained the status of the comparable employee. Moreover, the calculation for past earnings took no account of what the respondent had earned in other employment since the accident, nor any payments made to her under s49 of the Transport Accident Act 1986 (Vic).

On appeal, counsel for the appellant expressed the view that $60,000 should be allowed for past economic loss and this was accepted by the Court of Appeal. It remained for the Court of Appeal to determine how interest should be determined. Reference was made to the judgment of Kirby P in Otis Elevators Pty Ltd (1986) 5 NSWLR 171, 175 where his Honour approved the statement of Reynolds JA in Vardanega v Concrete & Terrazzo Pty Ltd (unreported, NSW Court of Appeal, 22 October 1979):

“The submission, extended to the full, would deprive a judge of the power to award any interest in a case where no dissection of the jury’s verdict had been sought and obtained. This proposition cannot be accepted. It is true that a judge should not speculate as to the probable or possible combination of figures which go to make up a lump sum verdict, but there is no reason why a judge, having heard the evidence and the verdict, could not in proper cases draw sound inferences as to the minimum amount which was awarded for past losses and act accordingly.”

It followed that interest should be allowed on the sum of $60,000 after deduction of payments made under s49 of the Transport Accident Act.

Importantly, the Court of Appeal noted:

“The task of determining how much a jury should be taken as having allowed for past loss, though by no means new, is obviously one of some difficulty where the verdict does not differentiate between past and future. In earlier days it was a task frequently undertaken by counsel, for the purpose of calculating interest, when juries returned a general verdict and it was necessary to distinguish, first between the amount allowed for past pain and suffering as distinct from pain and suffering in the future and then as between past economic loss and future economic loss. Commonly, as I understand it, counsel were able to reach agreement and, if I may say so, I think that that is how the matter should have been approached on this occasion. It should be unnecessary to invite the judge to embark upon the exercise when, with a bit of goodwill and commonsense, counsel could probably reach agreement without much difficulty once a verdict has been obtained. That not only the judge in the County Court but now also three judges of this Court have been occupied by the question agitated on this appeal is altogether out of proportion to the issue involved and in future counsel should do their best to reach agreement before embarking upon the course followed here. As the High Court said of the calculation of interest on damages in Fire & All Risks Ins, ‘the process should not be permitted to assume an importance incommensurate with its relative effect’.” [endnotes omitted]

No doubt this is something to be taken on board by practitioners.

The appeal was allowed and the judgment of the trial judge set aside with the substitution of a judgment consistent with the reasons given by the Court of Appeal.

Service of proceedings outside Australia in respect of a statutory claim

  • Victorian WorkCover Authority & Anor v Orientstar Shipping Corporation [2003] VSC 311 (unreported, 26 August 2003, No 8172/2002, Balmford J).

The first plaintiff had issued proceedings against the defendant, a Philippines company seeking indemnity under s138 of the Accident Compensation Act 1986 (Vic).

Service was effected on the defendant in the Philippines in accordance with the Victorian law for personal service. It was argued for the defendant that, as service had not been effected in accordance with the law of the place of service, the Philippines, service was void: cf. r7.03 of Chapter I of the Rules of the Supreme Court of Victoria 1996. Balmford J followed the decision of Giles J of the NSW Supreme Court in Williams v Lips-Heerlen Bv (unreported, 1 November 1991). Service under the law of the foreign country is an alternative to personal service under the law of Victoria.

However, a claim for a statutory indemnity is not a claim which falls within r7.01(1)(j). Her Honour relied on the decision of the Full Court in Australian Mutual Provident Society v GEC Diesels Australia Ltd [1989] VR 407, 410, a case concerning s23B of the Wrongs Act 1958 (Vic). See also Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213, 218 and Van Win Pty Ltd v Eleventh Mirontron Pty Ltd [1986] VR 484, 490.

Service on the defendant in the Philippines was ineffective and there should be an order that service be set aside in the absence of an order of the court authorising service.

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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