News: The High Court sets a date

Posted on 4 December 2013 by Jeremy Gans

Yesterday’s hearing in the same-sex marriage case concluded with the following words (at 4:40:15 on the video) from French CJ:

The Court will reserve its decision. The Court hopes to be in a position to announce a decision on 12 December.

The first sentence means that the Court will not decide the case right away. That is typical in final hearings, although there are exceptions (see here and here.) However, the second sentence is not at all typical. In most cases, no indication is given and the judgment comes when it comes. For example, there was no indication at the May hearing that today’s decision on patents would be the Court’s slowest judgment this year. The Court makes exceptions, though, if knowledge of the timing of the judgment would make a significant difference to someone. For example, at the conclusion of the 2010 hearings on the validity of laws on electoral enrolments, French CJ announced that he hoped that the Court would be in a position to announce a decision the next day, presumably saving the Commonwealth Electoral Commission a lot of money in planning for the contingency of a judgment of invalidity after the rolls had closed.

It is easy to see why the High Court announced a (tentative (UPDATE: see second comment below)) date for judgment in Cth v ACT. As has been widely reported, the announcement immediately resolved whether or not this weekend’s planned weddings in the national capital can go ahead (subject to the distant possibility of a speedier Court decision or the less distant possibility of a Commonwealth application for an injunction.) However, the particular date the Court set is a genuine surprise Continue reading →

Bank fees back in court again

Posted on 4 December 2013 by Katy Barnett

The class action involving bank fees is back in court again. Last year, the class action against banks was uplifted to the High Court in Andrews v Australia and New Zealand Banking Group Limited [2012] HCA 3. It was remitted back down to the Federal Court for decision in light of the High Court’s decision last year and is presently being heard. The case involved the rule against penalties in contract. The essence of the rule is that parties may stipulate the amount payable for certain breaches of contract (known as ‘liquidated damages’), but if the amount payable is not a genuine pre-estimate of loss and is instead in terrorem of the other contracting party (i.e. designed to scare them into performance rather than compensate for loss) then the clause may be struck down by the law against penalties: see Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71; (2005) 224 CLR 656, affirming Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79.

There has been intense media interest in the case (see here and here) and indeed, I was contacted by a number of outlets when the case went back to the Federal Court (for example, here and here) . As noted on Monday, there is a great deal of money at stake for both the banks and the customers. The present class action involves a $57 million claim, but other planned class actions are estimated to be worth $243 million, and more may be in the pipeline, depending on the success of this claim. Continue reading →