Full Court Matters
(Other
than Applications for
Special Leave to Appeal)
COMMENCING 7 AUGUST 2001
McGARRY v.
THE QUEEN (P61/2000)
Court Appealed
from: Court of Criminal Appeal of the Supreme
Court of Western Australia
Date of Judgment:
6 December 1999
Date special leave
granted: 4 August 2000.
The appellant pleaded guilty on 30 October 1998 to one count of indecent dealing
of a child under the age of 13 years, contrary to s320(4)
of the Criminal Code 1913 (WA).
The charges arose out of the following
events: On 18 December 1997, the appellant noticed
the complainant’s photograph in a local newspaper.
He used the telephone directory to locate her home address,
attended at that address, attracted the complainant’s attention
by tapping on the window and performed an indecent act.
On three subsequent occasions the appellant telephoned the
complainant’s residence stating that he was a “Sergeant
Phillips” of the Fremantle Police Station and that he wished
to discuss the incident.
In sentencing, three
pending charges of personating a member of the police force
were taken into account pursuant to s32 of the Sentencing
Act 1995.
The sentencing Judge found that the offence
was at the level of 7 years’ imprisonment to which a credit
of 2 years was allowed because of a “fast track” plea.
The sentencing Judge found that there was no eligibility
for parole. He also found that the appellant had a
constant history of sex offending against younger females
and that previous detention for similar offences had not
dissuaded the appellant. He came to a conclusion that
pursuant to s98 of the Sentencing Act 1995 (WA),
the appellant would be a danger to a part of society and
that there was a clear risk that he would commit other indictable
offences. As such, the sentencing Judge made a declaration
of indefinite imprisonment.
On appeal to the Court of Criminal Appeal,
the Court unanimously allowed his appeal with respect to
the length of sentence, reducing it from 5 years to 3 years.
That part of the appeal relating to parole eligibility was
unanimously dismissed. With respect to the imposition
of an indefinite sentence, a majority of 2:1 found that
the trial Judge had properly used his discretion in imposing
an indefinite sentence. Section 98(2) of the Sentencing
Act 1995, states that indefinite imprisonment must not
be ordered unless the Court is satisfied, on the balance
of probabilities, that when the offender would otherwise
be released from custody in respect of a nominal sentence,
he or she would be a danger to society or part of it.
The subsection enumerates 4 factors upon which the sentencing
Judge can make an order of indefinite imprisonment including
the exceptional seriousness of the offence, the risk that
the offender will commit other indictable offences, the
character of the offender and any other exceptional circumstances.
The majority of the Court of Appeal noted that the trial
Judge had referred to the exceptional seriousness of the
offence, the risk of recidivism, the predatory nature of
the offences and the history of offending of this type.
Since the grant of special leave to appeal,
the appellant has filed a notice of a constitutional matter
and a notice of motion seeking leave to amend the notice
of appeal. The constitutional issue said to arise
is:
·
Whether s98 of the Sentencing
Act 1995 (WA) and s25 of the Sentence Administration
Act 1995 (WA) are invalid because the power invested
in the Supreme Court of Western Australia and the District
Court of Western Australia under those provisions are:
(a)
repugnant to or incompatible
with the exercise of federal judicial power of the Commonwealth
and with the role and function of the Supreme Court and
the District Court;
(b)
have the tendency to undermine
public confidence in the integrity, independence and impartiality
of the Supreme Court and District Court; and
(c)
are in violation of the
Chapter 3 of the Commonwealth Constitution.
The ground of appeal
is:
·
Whether the learned sentencing
Judge erred in law in failing to satisfy himself that the
appellant would be a danger to society or part of it at
the time the appellant would be released from custody in
that he failed to give express consideration to all the
relevant factors specified in s98(2) of the Sentencing
Act 1995 (WA).
REGIE NATIONAL DES USINES RENAULT SA & ANOR v. ZHANG
(S9/2001)
Court appealed
from: New South Wales Court of Appeal
Date of Judgment:
27 July 2000
Date of grant
of special leave: 15 December 2000
The respondent came to Australia from
China in 1986. He was advised that he would be granted
permanent residency in Australia if he left the country
to make application for such residency from outside Australia.
He travelled to New Caledonia for this purpose. While
in Noumea he hired a Renault motor vehicle from a car rental
company. He suffered serious injuries when he lost
control of the car. He brought an action framed in
product liability in the Supreme Court of New South Wales
against the appellants. The appellants (who have no
presence in New South Wales or Australia) sought a stay
of the proceedings.
The issue before the primary judge was
whether the Supreme Court of New South Wales was an appropriate
forum to try the respondent’s action. The primary
judge found that the practical considerations tended to
favour New South Wales, but that the case had a close connection
with France and New Caledonia. “The substantive law
to be applied is French law. On any reasonable view
the tort alleged, whether negligent design or negligent
manufacture, is French.” His Honour exercised his
discretion and granted a stay on conditions.
The respondent
sought leave to appeal, relying on nine grounds of appeal.
The Court of Appeal found that the discretion
miscarried and it was appropriate to re-exercise it.
“[The primary judge] should have held that the opponents
had not discharged the onus of showing that New South Wales
was a clearly inappropriate forum and refused the stay.”
Leave to appeal was granted and the appeal allowed with
costs.
The respondent has filed a notice of
contention raising multiple grounds. The primary submission
of the respondent relates to the failure of the appellants
to discharge before the primary judge either the positive
or the negative aspect of the onus they bore under the Australian
test to show that New South Wales is a clearly inappropriate
forum.
The grounds
of appeal are:
·
The Court of Appeal
erred in finding that the trial judge erred in holding that
French law would govern the respondent’s claim were the
matter to be litigated in New South Wales, and then proceeding
to re-exercise the discretion which had been exercised by
the trial judge in the appellants’ favour and in favour
of a stay of proceedings.
·
The Court of Appeal
erred in finding that the trial judge’s holding that French
law would govern the respondent’s claim was premature in
circumstances where it was accepted (and the Court of Appeal
held) that any tortious conduct occurred in France.
·
The Court of Appeal
erred in holding that arguably New South Wales law would
govern the respondent’s claim.
·
The Court of Appeal
erred in interfering with the trial judge’s careful exercise
of discretion on the basis of its finding (which itself
constituted an error of law) that the trial judge erred
in holding that French law would govern the respondent’s
claim.
GERLACH
v. CLIFTON BRICKS PTY LIMITED
(S43/2001)
Court appealed
from: New South Wales Court of Appeal
Date of Judgment:
28 April 2000
Date of grant
of special leave: 16 February 2001
The appellant commenced proceedings in
the Supreme Court in July 1989, seeking damages against
the respondent for injuries for an industrial accident.
Years later the proceedings were remitted to the District
Court. At the appropriate stage, while the action
was pending in the Supreme Court, the appellant had requisitioned
for trial by jury. It was accepted that this requisition
remained effective after the transfer of the proceedings
to the District Court so as to require the action to be
tried with a jury unless it was dispensed with.
On the second last working day before
the trial the appellant obtained an order to dispense with
the jury. The respondent opposed the making of such
order. Christie DCJ exercised the discretion conferred
by Section 79A of the District Court Act 1973 which
provides: “In any action the court may order, despite
sections 77, 78 and 79, that all or any questions of fact
be tried without a jury”. In the exercise of his discretion,
Christie DCJ considered the number of witnesses who would
have to be called from different parts of the country and
said that the appellant would be put to significant financial
burden in calling an expert witness in addition to providing
accommodation for the lay witnesses while they waited to
be called before the jury.
The hearing of the appellant’s case proceeded
before Morrison ADCJ. The appellant was awarded $390,000
damages.
The respondent
appealed, challenging not only the trial judge’s decision
on liability and damages, but also challenging the interlocutory
order of Christie DCJ.
The Court of Appeal held that the respondent
could challenge the interlocutory order to dispense with
the jury on an appeal against the final judgment. The
Court held that the cost of witnesses was not a relevant
consideration in the exercise of the judge’s discretion
and therefore that the order to dispense with the jury should
not have been made. The Court further held that the
respondent was entitled to a retrial.
The appellant
has filed a notice of motion seeking leave to amend the
grounds of appeal.
The proposed
amended grounds of appeal include:
·
The Court of Appeal
was wrong in setting aside the decision of the District
Court under s79A of the District Court Act 1973 to
dispense with the jury previously requisitioned in the proceedings;
·
The Court of Appeal
erred in applying a restriction upon the discretion vested
in the District Court by s79A as propounded by the Court
of Appeal in Pambula Public Hospital v. Herriman
(1988) 14 NSWLR 387 and applied in subsequent decisions;
·
The Court of Appeal
ought not to have followed its earlier decision in Pambula,
it being wrongly decided, and the discretion of s79A being
general and unfettered; and
·
The Court of Appeal
failed to apply the decision and reasoning of the High Court
in Patton v. Buchanan Borehole Collieries Pty Limited
(1993) 178 CLR 14 in relation to the discretion conferred
by s79A.
*
* * * * * *
Full Court Matters
(Other than Applications for
Special Leave to Appeal)
ADELAIDE CIRCUIT SITTINGS
COMMENCING MONDAY, 13 AUGUST 2001
RE
SWINBANK & ORS; EX PARTE ELDERS LIMITED & ORS ( A23/2000)
Date of order directing application be made by notice of motion: 28 November
2000
The applicants seek prerogative relief in respect of the same
decision of the Full Federal Court which is the subject
of the appeal contained in A43/00.
The appellants seek certiorari to quash the decision
of the Full Court.
They also seek mandamus directed to the Full Court
directing them to consider and determine the matters that
were before them on the grounds that the Full Court did
have jurisdiction to hear the appeal and to decide the matters.
The grounds of the application for prerogative relief and the
appellants’ arguments are the same as those in their appeal.
The appellants submit that if the appeal succeeds
there is no need for this Court to grant prerogative relief.
On 10 August 2000, a single Justice had directed that the application
for prerogative relief be made to the same Full Court hearing
the special leave application.
On 28 November 2000 the Court directed that
the application be made by way of Notice of Motion.
The judges of the Federal Court named as respondents to the
prerogative relief application submit to the jurisdiction
of the Court. The
other respondents, who are the respondents to the appeal,
do not intend to make any submissions except on the questions
of costs.
ELDERS
LIMITED & ORS v. SWINBANK & ORS (A43/2000)
Court appealed from:
Full Federal Court of Australia
Date of judgment:
4 February 2000
Date special leave granted: 28 November 2000
The appellants paid for, and received, professional indemnity
insurance cover from the respondents by way of an insurance
policy (the “PI policy”).
As a consequence of proceedings in the Supreme Court
of the Northern Territory, the appellants incurred liability
under a Deed of Settlement as well as certain other costs
in respect of which they contend they are entitled to be
indemnified under the PI policy.
Despite demand being made, the respondents have refused
to provide the indemnity sought by the appellants under
the policy.
In 1997 the appellants commenced proceedings in the Federal
Court, in reliance upon the Jurisdiction
of Courts (Cross-Vesting) Act 1987
(SA), to enforce
the PI policy.
Orders were made by consent in 1998 by Mansfield
J for the separate determination of certain issues.
On 16 June 1999 Mansfield J delivered judgment on
those issues. On
17 June 1999 the High Court delivered its decision in Re
Wakim (1999) 73 ALJR 839.
The respondents sought leave to appeal against the
judgment of Mansfield J and to raise the question of jurisdiction.
The appellants sought leave to amend their claim
to plead explicitly damages for breach of late payment of
sound claim and reliance on s57 of the Insurance Contracts Act 1984 (Cth) (the “ICA”) (for interest payable
for late payment of sound claim).
The Full Federal Court heard argument on the jurisdictional
issue and the amendment issue at the same time.
The appellants submitted that even without the amendment
sought to the statement of claim, their entitlement to interest
under the ICA was raised as an issue in the action from
the outset, in a way sufficient to require the Court to
make a determination on it, quite apart from the cross-vesting
legislation. Because
the claim to interest arises under a law of the Parliament,
it thus is within the Court’s original jurisdiction under
s39B(1A)(c) of the Judiciary
Act 1903 (Cth).
The appellants contended that it is not necessary
to make explicit reference in the pleadings to the statutory
source of law and that it is sufficient if the material
facts are pleaded on proof of which the statutory (federal)
liability is established.
Alternatively it was submitted that the Court would
have had jurisdiction had the appellants been given the
opportunity to amend the Statement of Claim as contemplated.
The Full Court determined that the proceedings should
be stayed because the Full Court had no jurisdiction, following
the decision in Re
Wakim. On
that ground also the application to amend the Statement
of Claim was refused.
The grounds of appeal include:
·
The Court below erred in not considering that s57 Insurance
Contracts Act 1984 (Cth) (the ICA) is the sole remedy
for late payment of a sound insurance claim, to the exclusion
of –
(a)
Section 30C Supreme Court Act 1935 (SA) and equivalent statutory provisions for
pre-judgment interest in other States; and
(b)
common law damages for breach of contract, including
but not limited to, damages in accordance with the principle
in Hungerfords v Walker
(1990) 171 CLR 125.
·
The Court below erred in not considering that there is a “matter
arising under a law of the Parliament” sufficient to attract
the jurisdiction of the Federal Court where from the commencement
of a proceeding in the Federal Court, or subsequently, facts
are pleaded which, if proved, would entitle the applicant
to relief as follows:
(a)
to a remedy (statutory interest) provided by a law
of the Parliament (s57 ICA), although no explicit reference
is made in the pleading to that statutory remedy;
(b)
by reason of a legislative amendment coming into
effect after the
commencement of the proceedings, to an exclusive
federal statutory remedy, although no explicit reference
is made in the pleading to that exclusive statutory remedy;
(c)
as in (a) and (b) above respectively, but in each
case an application is made subsequently to amend the pleadings
by adding an explicit reference to the federal statutory
remedy; and
(d)
to the statutory protection afforded by s41 ICA in
circumstances where explicit reference is made in the pleadings
to that statutory provision and its operation put in issue
by a denial contained in the respondents’ pleaded Defence.
The respondents’ submissions in the appeal are confined to
questions of costs.
The Commonwealth, South Australia and Western Australia will
be intervening.
The appellants have also made application for prerogative relief
in respect of the decision of the Full Court, in matter
A23 of 2000. The
grounds for prerogative relief are the same as those in
the appeal.
MINISTER
FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v. SINGH (A11/2001)
Court appealed from:
Full Federal Court of Australia
Date of judgment:
15 August 2000
Date special leave granted: 16 February 2001
The respondent (Singh) is an Indian citizen of Sikh ethnicity.
After his family was killed by a Hindu mob in 1984,
Singh joined the Khalistan Liberation Force (the “KLF”).
He remained an active member until he left India
for Australia in 1996.
He knowingly participated in the unlawful killing
of a police officer and other acts of violence.
He did so by providing information to other members
of the KLF and also in some cases providing weapons.
Singh’s application for a protection visa was refused
on the grounds that he had committed crimes against peace.
The Refugee Review Tribunal (the “RRT”) held that
his participation in the murder of the police officer was
a non-political crime on the basis that there could be no
nexus or proportionality or close or direct link between
the revenge murder of the particular police officer and
the alleged political objectives of the KLF.
The RRT also held that Singh’s involvement in the
other violent crimes constituted an involvement in non‑political
crimes.
Mansfield J dismissed an application for review.
His Honour held that the RRT had erred in finding
that a crime motivated by revenge was necessarily incapable
of being a political crime.
However he did not consider that the RRT had erred
in the way it dealt with the other crimes committed by Singh
and therefore did not uphold the challenge.
Singh appealed to the Full Court.
The Full Court upheld Singh’s contention that the RRT was required
to make a finding, on the material before it, as to the
nature of the crimes in which the weapons were likely to
have been used. The
Court said that without such a finding, it was not possible
to determine whether they were political or non-political
crimes. On
the appellant’s “cross-appeal”, the Full Court accepted
that there were crimes that of their nature were incapable
of being characterised as political crimes.
However the Full Court considered that there may
be circumstances in which murdering a particular police
officer for revenge could be characterised as a political
crime. The
Court held that the RRT ought to have considered whether
the crime occurred in the midst of a political struggle
and then determined whether, notwithstanding such a struggle,
the crime cannot be characterised as political.
The grounds of appeal include:
·
The Full Court erred in holding that the Tribunal was required
to look at the circumstances of the crime so as to determine
whether it is an incident of a political struggle before
considering whether there are other characteristics of the
crime which make it a “non-political crime” within Article
1F of the Refugee Convention and Protocol, notwithstanding
the existence of any political struggle.
The Full Court should have held that it is not an
error of law for the Tribunal to find that a particular
crime is so atrocious that it can bear no sufficient proportionality
to political objectives for it to be capable of characterisation
as a “political crime” irrespective of the existence of
a political struggle.
SULLIVAN
v. MOODY & ORS
(A21/2001)
Court appealed from:
Full Court Supreme Court of SA
Date of judgment:
17 October 2000
Date special leave granted: 1 June 2001
The appellant sued the respondents in negligence.
His case was that there had been an allegation that
he had sexually abused one of his children; that the child
was questioned and examined by a medical practitioner who
investigated the allegation and formed the opinion that
the appellant had sexually abused his child; that this opinion
was negligently reached; that two social workers were also
involved in that investigation and they also formed the
same opinion; that the social workers had done so negligently.
These opinions were then communicated to officers
of the Department for Community Welfare (the “Department”),
the police and to other respondents; that officers of the
Department were negligent in dealing with the investigation
and in their response to the allegations; that as a result
the appellant was separated from his child and suffered
shock, anguish and distress.
The respondents are the doctor, the social workers
and the officers of the Department; the two hospitals alleged
to be the employers of some of the individual respondents;
and the State of South Australia as the employer of some
respondents and the entity liable for the negligence of
the officers of the Department.
Upon the application of the respondents, a Master had struck
out the statement of claim as not disclosing a cause of
action. Before
the Master, the appellant conceded that the decision of
the Full Court of the Supreme Court of South Australia in
Hillman v. Black
governed his case and could not be distinguished.
After the Master had made his decision, the Full
Court in CLT v. Connon & Ors considered a challenge to the correctness
of Hillman v. Black.
That Full Court (Doyle CJ, Duggan & Gray JJ)
held that causes of action, indistinguishable from those
advanced in Hillman
v. Black could not succeed as a matter of law.
When this matter came before the Full Court, the
appellant conceded that there was no material distinction
between the case as pleaded by the appellant and the case
pleaded in CLT v. Connon & Ors. The
Full Court (Doyle CJ, Williams & Wicks JJ) dismissed
the appellant’s appeal.
The ground of appeal is:
·
That the Full Court of the Supreme Court of South Australia
erred in deciding that it was not arguable that the Statement
of Claim filed in the Supreme Court of South Australia by
the appellant disclosed a cause of action and that it was
capable of being amended to show a cause of action against
the respondents to this appeal.
The matter of CLT v.
Connon & Ors had been granted special leave to appeal.
In the High Court that appeal is known as Thompson
v. Connon & Ors.
The ground of appeal in this appeal is the same as
that raised in Thompson
v. Connon &
Ors (A23/2001).
THOMPSON
v. CONNON & ORS
(A23/2001)
Court appealed from:
Full Court, Supreme Court of SA
Date of judgment:
6 July 2000
Date special leave granted: 1June 2001
The appellant had been charged with criminal offences alleging
sexual abuse of his three children.
The charges followed medical examinations of the
children and subsequent reports to the Department of Community
Welfare (the “Department”) concerning alleged sexual abuse
by the appellant.
In time all charges were either discontinued or the
subject of nolle prosequi. It is asserted that as a result the appellant’s relationship
with his children has been significantly impaired, if not
ruined.
He sued, claiming damages alleging a breach of common law duty
of care. The
respondents are the two medical practitioners who examined
the children and made a report to the Department; the Hospital
which provided the Sexual Assault Referral Centre where
the children were examined; and the State of South Australia
whose Department had responsibility regarding the welfare
of allegedly abused children.
The respondents applied to strike out the statement of claim
as disclosing no cause of action.
In the appellant’s path stood the decision of the
Full Court of the Supreme Court of South Australia in Hillman
v. Black. The
facts in Hillman v. Black were similar to the present case.
The Full Court in Hillman v. Black had found that there was no duty of care.
The Master concluded that he was bound by the decision
in Hillman v. Black
and struck out the action.
The appellant appealed to the Full Court, arguing
that a number of recent High Court judgments on the issue
of proximity should lead to a reconsideration by the South
Australian Full Court of the decision in Hillman v. Black. The
Full Court (Doyle CJ, Duggan & Gray JJ) agreed that
it should reconsider Hillman
v. Black and the issue of whether there was a duty of
care. Although
the reasoning of Doyle CJ differed from that of Duggan &
Gray JJ they all concluded that there was no duty of care
and dismissed the appeal.
The ground of appeal is:
·
That the Full Court of the Supreme Court of South Australia
erred in holding that it was not arguable that the Statement
of Claim disclosed a cause of action against the respondents.
The ground of appeal in this matter is the same as that raised
in Sullivan v. Moody
& Ors (A21/2001).
ERMOGENOUS
v. GREEK ORTHODOX COMMUNITY OF SA INC. (A22/2001)
Court appealed from:
Full Court Supreme Court of SA
Date of judgment:
5 October 2000
Date special leave granted: 1 June 2001
In late 1969 and in early 1970 the respondent and other communities
invited the appellant to visit Australia from America for
discussions relating to his possible appointment as archbishop.
The appellant arrived in Adelaide and had some discussions
with the respondent.
In April 1970 a meeting of the Federation of Greek
Orthodox Communities in Australia took place in Melbourne
and following that meeting the appellant was formally installed
as an Archbishop of the Autocephalous Church in Adelaide.
He remained as Archbishop until December 1993.
He then brought proceedings in the Industrial Relations
Court of SA against the respondent.
His claim was for a pro rata payment in lieu
of accumulated annual leave and also for a pro rata
payment for accumulated long service leave .
The principal issue before the Industrial Magistrate,
and on the appeals which followed, was whether the appellant
was an employee of the respondent at common law.
The Industrial Magistrate who heard the claim held
that he was. A
single judge of the Industrial Relations Court dismissed
an appeal from that decision.
The Full Court of the Industrial Relations Court
dismissed an appeal from the single judge.
The respondent then appealed to the Full Court of the Supreme
Court of South Australia.
There was a preliminary issue of whether the respondent
had an appeal as of right, or required leave.
Bleby J was of the view that there was an appeal
as of right, but in any event would have granted leave if
that were necessary.
Doyle CJ and Mullighan J were of the view that it
was an appropriate case in which to grant leave.
After reviewing all the evidence which was before
the Industrial Magistrate, the majority (Doyle CJ and Bleby
J) found that on the evidence it was not the intention of
the parties to enter into legal relations. The majority
was of the view that in the case of a minister of religion
an intention to enter into contractual relations in respect
of an alleged contract of employment cannot be presumed
but has to be proved.
The appeal was allowed.
The grounds of appeal are:
·
Whether the Full Court erred in holding that there had in this
case been no intention to create legal relations;
·
Whether it was open to the Full Court to make the findings
of fact it did, or alternatively, whether it erred in making
the findings of fact it did:
(a)
in an appeal under s191 of the Industrial
and Employee Relations Act 1994 (SA); and
(b) to the contrary of findings of fact below.
* * * * * * * * *
