Full Court Matters
(Other than Applications for Special
Leave to Appeal)
COMMENCING 1 MAY 2001
WONG v. THE QUEEN
(S193/2000)
LEUNG v. THE QUEEN
(S198/2000)
Court appealed from: NSW
Court of Criminal Appeal
Date of judgment: 16 December
1999
Date of grant of special leave:
4 August 2000
On 8 November 1997 the appellants were
arrested in Sydney and charged with being knowingly concerned
in the importation of a quantity of heroin in contravention
of s233B of the Customs Act 1901 (Cth) (“the Act”).
On 7 September 1998, the appellants were convicted
by a jury in the District Court and were each sentenced
to a period of twelve years imprisonment with a non‑parole
period of seven years.
The appellants appealed against their
conviction. By judgment of 15 September 1999
that appeal was dismissed by the Court of Criminal Appeal.
On 24 February 1999 the Acting Commonwealth
Director of Public Prosecutions gave notice of intention
to appeal against the sentence imposed on the appellants
on the grounds that they were manifestly inadequate.
Prior to the hearing of the appeals, the Director gave notice
that he sought a “guidelines judgment” in relation to offences
under s233B of the Act. In support of his submissions
in relation to a guideline judgment, the Director submitted
a bundle of material to the Court relating to the prevalence
of offences under s233B, approaches to sentencing adopted
in other jurisdictions, an analysis of sentences imposed
in other Australian States and Territories and an analysis
of sentences imposed for various contraventions of s233B
in New South Wales courts. The appellants challenged
the jurisdiction of the Court to issue a guideline judgment.
On 16 December 1999 the Court of Criminal
Appeal, constituted by five justices, upheld the Crown appeals,
holding that the sentences imposed by the trial judge were
manifestly inadequate. The sentences of each appellant
were quashed; in lieu thereof the Court imposed a period
of fourteen years imprisonment with a non‑parole period
of nine years.
The Court promulgated a sentencing guideline.
Simpson J expressed reservations concerning the suitability
of the cases before the Court to provide the foundation
for a guideline judgment in relation to couriers and persons
low in the hierarchy of an importing organisation, on the
basis that the two appellants could only be characterised
as major participants.
The grounds of appeal include:
·
The promulgation and application of comprehensive
quantitative guidelines for sentencing offenders under s233B(1)(d)
of the Customs Act 1901 (Cth) –
(1) was not authorised
by s5D or any other provision of the Criminal Appeal
Act 1912 (NSW); and
(2) did not constitute
an exercise of the judicial power of the Commonwealth within
Chapter III of the Constitution and was therefore beyond
the power of the Court in the exercise of federal jurisdiction;
and ss68 or 79 of the Judiciary Act
1903 did not operate to apply that provision or those provisions
of the Criminal Appeal Act 1912 (NSW) in the proceedings.
·
The law of the State purporting to confer jurisdiction
on the Court of Criminal Appeal to promulgate and apply
the comprehensive quantitative guidelines in the circumstances
of the case was inconsistent with s16A of the Crimes
Act 1914 and/or s235 of the Customs Act 1901
within the meaning of s109 of the Constitution and to that
extent invalid and would not be rendered applicable by ss68
or 79 of the Judiciary Act 1903.
ROXBOROUGH & ORS v. ROTHMANS
OF PALL MALL AUSTRALIA LIMITED
(S199/2000)
Court appealed from: Full
Court of the Federal Court of Australia
Date of judgment: 11 November
1999
Date of grant of special leave:
4 August 2000
This appeal arises out of a determination
made on 5 August 1997 in Ha v. State of New South Wales
(1997) 189 CLR 465 (“Ha’s case”) that
the Business Franchise Licences (Tobacco) Act 1987
(NSW) (“the Act”) was invalid as imposing a duty or duties
of excise. In the result, it was no longer necessary
for either wholesalers or retailers of tobacco products
to be licensees under the Act or to pay licence fees which
the Act purported to impose as part of the licensing scheme.
In 1997 each of the appellants was a
tobacco retailer licensed under the Act. The respondent
was a tobacco wholesaler licensed under the Act. The
effect of the contractual relationship between the appellants
and the respondent was that the licence fees which the respondent
was liable to pay each month were borne by the appellants.
During the period between 1 July 1997 and 5 August 1997
the respondent sold tobacco products to each appellant.
In respect of each sale the respondent issued a standard
form invoice which separately identified the sales sub total
and the tobacco licence fee. The sum of these was
identified as the net total and each appellant paid the
net total of each invoice to the respondent.
The issue in the Federal Court proceedings
was whether the appellants or the respondent should receive
the benefit of the windfall that arose in consequence of
the decision in Ha’s case. The appellants relied
on several distinct bases for recovery of the amounts paid
to the respondent as tobacco licence fee. (They now
pursue recovery of the amounts paid on four bases only.)
The proceedings were dismissed at first instance.
An appeal to the Full Federal Court was dismissed by majority.
Gyles J, dissenting, concluded that there had been a total
failure of consideration in respect of the amount paid for
tobacco licence fee and that that was sufficient to dispose
of the matter.
The grounds of appeal include:
·
The majority erred in failing to hold that it was
an express or alternatively an implied term of the contract
between each appellant and the respondent that, in consideration
of the appellant paying to the respondent the amount identified
in each invoice as “TOBACCO LICENCE FEE”. The respondent
would pay the said amount as licence fee under the Business
Franchise Licences (Tobacco) Act 1987 (NSW) (“the Act”);
and
·
The majority erred in failing to hold that each appellant
was entitled to recover from the respondent as moneys had
and received the amount identified in each invoice as “TOBACCO
LICENCE FEE” paid to the respondent by the appellant on
the basis of total failure of consideration.
CHEUNG v. THE QUEEN (S200/2000)
Court appealed from: NSW
Court of Criminal Appeal
Date of judgment: 17 December
1999
Date of grant of special leave:
4 August 2000
Following conviction, the appellant
was sentenced on 6 August 1993 to life imprisonment.
In February 1999 he filed an application for leave to appeal
against sentence. The application was some years out
of time. The appellant had filed a Notice of Appeal
within time, but the grounds did not include an application
for leave to appeal against sentence. (It was the
appellant’s belief that the original Notice of Appeal did
in fact contain an application for leave to appeal against
sentence.)
The Crown had put
its case to the jury on two bases:
(1) The evidence of an
informant against the appellant as corroborated (the more
serious factual scenario); or
(2) The corroborative and
circumstantial evidence standing alone without the evidence
of the informant (the less serious factual scenario).
The trial judge having carefully reviewed
the evidence in the trial, found, as a fact, that the Crown
had made out the first case. No request was made of
the trial judge at any time that the jury should be asked
whether it was the wider or the narrower factual basis which
sustained their verdict.
In the application for leave to appeal
against sentence, the primary ground of appeal relied on
was that the trial judge should have asked the jury whether
they found the appellant guilty on the Crown’s primary case
or the alternative. Newman J said that if such a power
does exist in relation to crimes other than manslaughter
the exercise of power is discretionary. He found that
the trial judge correctly carried out his sentencing function.
Simpson and Hidden JJ agreed, finding that it fell to the
trial judge to find the facts for the purpose of sentence
and it was open to his Honour to arrive at the conclusions
he did.
Because of the seriousness
of the matter and the appellant’s false belief as to what
was contained in the original Notice of Appeal, the Court
granted leave to appeal, but dismissed the appeal.
The grounds of appeal
are:
·
The Court erred in holding that the Judge at first
instance had correctly applied the law in not asking the
jury a question to attempt to understand which of two alternative
Crown cases had been the basis of their verdict; and
·
The Court erred in rejecting a submission that the
Judge at first instance had taken an approach to the factual
basis for sentence which failed to ensure consistency with
the verdict of the jury, and encroached upon his right to
trial by jury.
*
* * * * * * * *
Full
Court Matters
(Other
than Applications for
Special
Leave to Appeal)
COMMENCING
22 MAY 2001
CHEUNG v. THE QUEEN
(S200/2000)
Court appealed from:
NSW Court of Criminal Appeal
Date of judgment:
17 December 1999
Date of grant of special
leave: 4 August 2000
Following conviction, the appellant
was sentenced on 6 August 1993 to life imprisonment.
In February 1999 he filed an application for leave to appeal
against sentence. The application was some years out
of time. The appellant had filed a Notice of Appeal
within time, but the grounds did not include an application
for leave to appeal against sentence. (It was the
appellant’s belief that the original Notice of Appeal did
in fact contain an application for leave to appeal against
sentence.)
The Crown had put
its case to the jury on two bases:
(1) The evidence of an
informant against the appellant as corroborated (the more
serious factual scenario); or
(2) The corroborative and
circumstantial evidence standing alone without the evidence
of the informant (the less serious factual scenario).
The trial judge having carefully reviewed
the evidence in the trial, found, as a fact, that the Crown
had made out the first case. No request was made of
the trial judge at any time that the jury should be asked
whether it was the wider or the narrower factual basis which
sustained their verdict.
In the application for leave to appeal
against sentence, the primary ground of appeal relied on
was that the trial judge should have asked the jury whether
they found the appellant guilty on the Crown’s primary case
or the alternative. Newman J said that if such a power
does exist in relation to crimes other than manslaughter
the exercise of power is discretionary. He found that
the trial judge correctly carried out his sentencing function.
Simpson and Hidden JJ agreed, finding that it fell to the
trial judge to find the facts for the purpose of sentence
and it was open to his Honour to arrive at the conclusions
he did.
Because of the seriousness
of the matter and the appellant’s false belief as to what
was contained in the original Notice of Appeal, the Court
granted leave to appeal, but dismissed the appeal.
The grounds of appeal
are:
·
The Court erred in holding that the Judge at first
instance had correctly applied the law in not asking the
jury a question to attempt to understand which of two alternative
Crown cases had been the basis of their verdict; and
The Court erred in rejecting
a submission that the Judge at first instance had taken
an approach to the factual basis for sentence which failed
to ensure consistency with the verdict of the jury, and
encroached upon his right to trial by jury.
RE THE MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS;
EX PARTE LU
(M42/2000)
Order Nisi granted:
10 August 2000
The applicant (“Lu”) is a citizen of
Vietnam who arrived in Australia in 1982 with his family.
He was granted a permanent entry permit. In 1990 Lu was
involved in a number of criminal offences. In 1991
Lu and his co-offenders were sentenced in the NSW District
Court. The sentencing judge imposed a term of six
and a half years and recommended that Lu be deported.
In 1992 the NSW Court of Appeal varied Lu’s sentence by
quashing the recommendation of deportation.
The Migration Act 1958 (Cth) (“the
Act”) was amended in December 1992 by the Migration Reform
Act 1992 and then by the Migration (Offences and
Undesirable Persons) Amendment Act 1992. The commencement
date of both these Acts was ultimately fixed to be 1 September
1994. In June 1997 a delegate of the respondent (“the
Minister”) ordered that Lu be deported under s200 of the
Act. Lu sought review of the deportation order from
the Administrative Appeals Tribunal (“the AAT”).
In October 1997 Lu was released from prison on parole.
In June 1998 the AAT set aside the deportation order.
The Minister appealed to the Federal Court, but this was
later discontinued, after the Full Federal Court had delivered
judgment, on 17 July 1998, in The Minister for Immigration
and Multicultural Affairs v. Gunner (“Gunner’s case”).
The Full Court in Gunner’s case did not question
that the Minister, having ordered deportation of a permanent
resident for criminal conduct under ss200, 201 of the Act,
could thereafter cancel the permanent visa under (the former)
s501 on the AAT setting aside the initial deportation order.
On 19 October 1998 the Minister made
three decisions regarding Lu: (a) that Lu was not
of good character; (b) to cancel Lu’s visa; and (c) to include
a certificate that Lu was an “excluded person”. Lu has been
detained as an unlawful non-citizen since November 1998.
Lu sought review in the Federal Court
under Part 8 of the Act. Drummond J dismissed the
application. Lu appealed unsuccessfully to the Full
Court. Lu applied for special leave to appeal to the
High Court. He also sought prerogative relief in respect
of those decisions of the Minister. On 23 June 2000,
Hayne J directed that the application for orders nisi be
made by Notice of Motion to a Full Court, to be heard together
with the application for special leave to appeal.
On 10 August 2000 the Full Court dismissed the application
for special leave, but granted the order nisi.
The issue to be determined is whether
the decisions of the Minister are void so that a writ of
prohibition, or an injunction, should issue to prevent the
Minister acting on them or a writ of certiorari issue to
quash the decisions. Lu contends that the documents
before the Minister at the time he made his decision contained
errors, omitted relevant facts and failed to draw the Minister’s
attention to issues raised on the documents. Lu also
contends that the decision involved an unreasonable exercise
of power in a way that represented an abuse of power.
Since the order nisi was granted by the
High Court, the Full Court of the Federal Court has held
(in Singh v. Minister for Immigration and Multicultural
Affairs [2000] FCA 1426) that an excluded person certificate
decision expressed in the form of the a certificate made
by the Minister personally (in the same form as in the present
case) does not constitute a valid certificate. The Minister
contends that as a result of Singh’s case, Lu is
entitled to seek a merits review in the AAT of the Minister’s
decision to cancel his visa and that Lu should now be pursuing
that right rather than continuing the High Court proceedings.
The Minister has filed a Notice of Motion seeking that Lu’s
application be dismissed in the exercise of this Court’s
discretion.
ALLAN v. TRANSURBAN CITY
LINK LIMITED (M90/2000)
Court appealed from:
Full Federal Court
Date of judgment:
10 December 1999
Date special leave granted:
8 September 2000
In January 1996 the Development Allowance
Authority (the “DAA”) granted infrastructure borrowing certificates
to the respondent (“Transurban”) under Chapter 3 of the
Development Allowance Authority Act 1992 (Cth) (“the
DAA Act”) in respect of the Melbourne City Link project.
These certificates are in effect “tax incentives”.
City Link is a large tollway that involved the widening
and connection of the Tullamarine and South-Eastern Freeways.
Chapter 3 of the DAA Act includes s93O(2), which states
that the DAA must not issue a certificate if there is a
law in force which restricts the operation of other facilities
in competition with the project. The appellant (“Allan”)
contends that the Melbourne City Link Act 1995 (Vic)
is such a law, but this question has not yet been determined.
In January 1996 Allan and his family
lived near the Tullamarine Freeway and anticipated that
City Link would adversely affect their residential amenity.
In March 1996 Allan requested the DAA to reconsider its
decision. Following submissions from Allan and Transurban,
DAA declined the request because it concluded that Allan
was not “a person who is affected” by the decision as required
under s119(1) of the Act. Allan applied to the Administrative
Appeals Tribunal (‘the AAT”) for review. At a directions
hearing the DAA raised preliminary objections on a number
of grounds including lack of standing and that the DAA decision
was non-reviewable. Transurban sought leave to make
submissions at this point, but leave was refused by the
AAT until jurisdictional issues were resolved. Transurban
did not challenge this ruling and made no further attempt
to take part in the proceedings. The AAT accepted
it had jurisdiction to determine whether Allan had standing.
The AAT in November held that the DAA’s decision was reviewable
but that Allan lacked standing.
Meanwhile, concerned at the imminent
construction of City Link, Allan purchased a home further
from the project in September 1996, sold his own home in
November and moved in January 1997. Allan appealed
unsuccessfully to the Federal Court. He then appealed
to the Full Court, which allowed his appeal and remitted
the matter to the AAT. Transurban then wrote to the
AAT requesting to be joined as a party; Allan consented.
At the directions hearing in May 1998, Transurban raised
the fact that Allan had moved house and sought that his
application be dismissed for want of standing because of
this. At the hearing of the preliminary issues, Transurban
and DAA then argued that Allan lacked standing because he
could not gain anything personally by winning. The
AAT dismissed the application for lack of standing.
Allan appealed to the Federal Court.
Merkel J allowed the appeal, holding that Allan’s change
of address was irrelevant because standing was to be determined
at the time Allan requested DAA to reconsider its decision.
Transurban appealed to the Full Court,
which allowed the appeal. The Full Court found that
the interest which Allan claimed was too remote.
The grounds of appeal include:
The Full Court erred by:
·
holding that the appellant would not have standing
at common law unless he could show that he would gain something
personally by a successful review of the decision he wishes
to challenge;
·
holding that the appellant would not have standing
under the Administrative Appeals Tribunal Act 1975
(Cth) and/or the Development Allowance Authority Act
1992 (Cth) unless he could show that he would
gain something personally by a successful review of
the decision he wishes to challenge; and
·
holding that the appellant’s interest in the threat
to his local environment and his residential amenity occasioned
by the Melbourne City Link project was too remote from the
decision he wishes to review.
SMITH v. THE QUEEN
(S233/2000 and S234/2000)
Court appealed from:
Supreme Court of NSW, Court of Criminal Appeal
Date of judgment:
21 October 1999
Date of grant of special
leave: 8 September 2000
The issue raised by this appeal
is whether evidence should be permitted to be given by people
who were not witnesses to an offence, of their identification
of people depicted in photographs taken at the time of the
offence.
The appellant was tried before a judge
and jury in the District Court on a charge of robbery in
company. He was convicted and given a custodial sentence.
The Crown case was that at about 12.25
pm on 26 June 1997, four males entered the National Australia
Bank at Caringbah and took the sum of $16,600, the property
of the National Australia Bank. Still pictures were
developed and enlarged from the bank’s security camera film.
Photographs depicted a male standing near the door dressed
in a hooded jacket. Police officers viewed some of
the photographs and identified the appellant as the person
near the door. Police later showed bank employees
and other witnesses of the robbery a video compilation of
male faces, including the appellant, but none identified
the appellant.
An application was made at the trial
that the probative value of the identification evidence
was weakened by its prejudicial effect. Further, the
appellant relied upon s76 of the Evidence Act 1995
(“the Act”), submitting that the police officers concerned
were really giving lay opinion evidence and that s78 of
the Act did not render it admissible. The trial judge
was not persuaded that the prejudicial effect of the identification
evidence outweighed its probative value and proceeded on
an assumption that even if the evidence of recognition could
be classified as opinion evidence, it fell within the exception
provided by s78.
The Court of Criminal Appeal held that
the evidence given by police officers was not evidence of
an opinion. The Court further held that it was well
open to the trial judge to conclude that the probative value
of the police evidence about the photographs outweighed
the danger of unfair prejudice to the applicant.
The ground of appeal is:
·
The Court of Criminal Appeal of New South Wales erred
in determining that evidence of identity could be presented
to the jury by persons who claimed to know the appellant
examining photographs of the offence.
FROST & ORS v. WARNER
(S195/2000)
Court appealed from:
Supreme Court of NSW, Court of Appeal
Date of judgment:
24 November 1999
Date of grant of special
leave: 4 August 2000
On 8 January 1990 forty-nine people boarded
the 36 foot motor boat, “N’Gluka”, at the Soldier’s Point
Marina. Dennis Warner, the respondent’s husband, was
in control of the boat at all material times. The
respondent was the holder of the certificate of registration
of the vessel under Regulation 11 of the Water Traffic
Regulations (NSW) as then in force. The weather
was fine and the sea was calm. The vessel cruised
on Port Stephens to a restaurant. The people on the
boat disembarked, had lunch, and reboarded the vessel to
return to the Marina. It was on that voyage that the
vessel lost stability and sank. Five children in a
forward cabin were unable to get out and drowned.
The appellants sued the respondent and
Mr Warner for damages. At trial, the judge found that
the vessel would have righted itself, but for the fact that
it was grossly and dangerously overloaded with the result
that it had a very poor reserve of stability. His
Honour found that Mr Warner was negligent. His Honour
further found that the respondent, as the holder of the
certificate of registration in respect of a motor vessel
which sank in consequence of the negligence of Mr Warner,
was vicariously liable for his negligence and that she was
liable for personal negligence. The findings against
the respondent were based on her being the registered controller
of the vessel.
The respondent appealed against the findings
of the trial judge that she was liable for the negligent
acts of her husband and that she was negligent as a result
of her own acts or omissions. (The finding that Mr
Warner was negligent was not appealed.) The Court
of Appeal found that the respondent’s being the holder of
the certificate of registration did not give rise to a personal
duty of care any more than it made her liable for the negligence
of Mr Warner.
The grounds of appeal are:
·
The Court of Appeal erred in holding that the respondent
was not responsible, by virtue of her position as holder
of the Certificate of Registration of the vessel, “N’Gluka”,
under the Water Traffic Regulations (NSW) as being
in force, for the negligence of Dennis Warner; and
·
The Court of Appeal erred in holding that the respondent
did not hold a duty of care to the appellants which included
a duty to prevent the vessel from sailing while it was dangerously
overloaded.
VELEVSKI v. THE QUEEN
(S197/2000)
Court appealed from:
New South Wales Court of Criminal Appeal
Date of judgment:
10 May 1999
Date of grant of special
leave: 4 August 2000
The bodies of the appellant’s wife Snezana,
his daughter aged six and his twin daughters aged three
and a half months were found by the police in the afternoon
of 20 June 1994 at the appellant’s residence in a suburb
of Wollongong. All had had their throats cut.
A knife was found which was capable of inflicting the wounds
and being the relevant weapon.
The appellant was charged with their
murder. There was no doubt that whoever killed the appellant’s
wife also murdered his children. A prominent issue
at the trial was whether the Crown had excluded any possibility
that Snezana had killed the children and then committed
suicide. (No-one contended, as obviously it could
not be, that the three children were other than victims
of murder.)
The Crown case at the trial fell into
two parts: the circumstantial case; and, the medical case.
It was common ground that the medical evidence was not sufficient
to convict the appellant. (The trial judge so instructed
the jury.) Each of the forensic pathologists who testified,
even those who believed that Snezana had been murdered,
acknowledged the possibility that she may have committed
suicide. The Crown identified a number of circumstances
said to be incriminating. When added to the medical
evidence they were enough, so it was said, to exclude any
reasonable hypothesis other than guilt.
After a trial extending almost
two months, the appellant was convicted on four counts of
murder.
The principal ground of appeal relied
on was that the verdict was unsafe and unsatisfactory.
The appeal was dismissed by majority. David Kirby
J, dissenting, would have set aside the jury’s verdict on
the grounds that it was unreasonable. His Honour found
that a miscarriage of justice was caused by the imbalance
in the medical evidence adduced in the prosecution case.
His Honour said “[t]he jury ought to have had a reasonable
doubt as to the guilt of the accused”.
The grounds of appeal are:
·
The majority of the Court of Criminal Appeal erred
in holding that no miscarriage of justice was caused by
the failure of the Crown to call as witnesses Professors
Hilton and Botterill and Drs Lawrence and Duflou.
·
The majority of the Court of Criminal Appeal erred
in failing to hold that a miscarriage of justice was caused
by the admission of inadmissible evidence from the medical
witnesses called by the prosecution;
·
The Court of Criminal Appeal erred in holding that
the trial judge did not err in his directions to the jury
on lies; and
·
The majority of the Court of Criminal Appeal erred
in holding that the verdicts of the jury were not unreasonable.
FLANAGAN v. HANDCOCK
(S258/2000)
Court appealed from:
Full Court of the Family Court
Date of judgment:
17 November 1999
Date of grant of special
leave: 13 October 2000
This appeal involves two issues:
the jurisdiction of the Family Court under the provisions
of the Child Support (Assessment) Act 1989 (Cth);
and, whether the paramountcy of the best interests of the
child principle applies in respect of injunctions sought
under s68B(1) of the Family Law Act 1975 (Cth)
after the 1995 amendments to that Act.
The appellant (Mr Flanagan) and the respondent
(Mrs Handcock) are the parents of twin daughters born 18
April 1996. They lived in a de facto relationship
from mid 1992 to mid 1996. The children have lived
with Mrs Handcock since the parents separated, but
have had contact with Mr Flanagan.
Shortly after separation, Mrs Handcock
applied for and obtained an administrative assessment for
child support to be payable by Mr Flanagan. There
has been a significant amount of litigation about that original,
and subsequently issued, child support assessments.
On 30 November 1998, Judicial Registrar
Johnston heard child support proceedings between Mr Flanagan
and Mrs Handcock. He delivered his decision on 29
January 1999.
Mr Flanagan filed
an application on 8 February 1999 seeking to review the
orders of Johnston JR and he also filed an application on
15 March 1999 seeking to injunct Mrs Handcock from using
the surname “Handcock” for the children.
The applications came before Rose J on
12 May 1999. The outcome of the proceedings was that
his Honour made some adjustments to the figures arrived
at by Johnston JR, but otherwise dismissed the review application
and the application for an injunction.
Mr Flanagan sought leave to appeal the
orders made in relation to child support by Rose J and appealed
against the order made by Rose J on the same date dismissing
his application for an injunction. On 2 March 2000
the Full Court dismissed the application for leave to appeal
and the appeal. In relation to the leave to appeal,
the Full Court (by majority) found that there was no error
of principle nor any substantial injustice to Mr Flanagan
demonstrated. Finn J, dissenting, would have granted
leave to appeal and would have allowed the appeal in relation
to the order which applied to the years 1998/1999 and 1999/2000.
In relation to the appeal from the order of
Rose J dismissing Mr Flanagan’s
application for an injunction, the Court noted that the
decision of Rose J was an exercise of judicial discretion
and appellate courts will only interfere with such an exercise
within certain well defined limits.
The grounds of appeal include:
Part A “The Application for Review”
·
Kay and Holden JJ were mistaken as to the law in
their separate Reasons for Judgment because:
(1) Kay and Holden JJ erred
by failing to consider that the only application before
the trial judge, Rose J, was for a decrease. (Johnson
and Johnson (1998) 24 Fam LR.); and
(2) Kay and Holden JJ erred
by failing to consider that the trial judge had
failed to inform the applicant
that he was reviewing any other years
other than the 1997 and 1998
Child Support Years. (Johnson and
Johnson
(1998) 24 Fam LR.);
·
Finn and Kay and Holden JJ erred in their respective
Reasons for Judgment, by failing to consider that:
(1) The trial judge had erred
by failing to correct arithmetic errors made by Judicial
Registrar Johnston in the Reasons for Decision dated 29
January 1999.
(2)
The trial judge had erred by accepting as evidence from
the respondent, Exhibit 1 “Weekly Costs – A… and C…”, during
the course of the proceedings and without adequate substantiation.
Part B “The Application for Injunction”
·
Finn J was mistaken as to the law in her separate
reasons for judgment. Her Honour erred in coming to the
conclusion that decisions, prior to the decision of B
and B: Family Law Reform Act 1995 (1997) FLC 92-755
and prior to the substantial rewriting of Part VII of the
Act, must carry little authority in determining an application
for an injunction in relation to the use of a particular
name for a child;
·
Kay and Holden JJ were also mistaken in considering
that the discretion of the trial judge had not miscarried
and that the trial judge was not mistaken as to the law
by considering that:
(1) The paramountcy principle
although relevant was not decisive in
determining an application for an injunction in relation
to the use of a
particular name for a child; and
(2)
The decision of the trial judge was only an exercise in
discretion in an application for an injunction in relation
to the use of a particular name for a child.
The respondent has filed a notice of
motion seeking a revocation of the grant of special leave
or, in the alternative, the revocation of part of the grant
of special leave. The respondent contends that the
grant should have been limited to the issue of the injunction.
*
* * * * * * * *
