By Matthew Bell, Wayne Jocic and Rami Marginean
Brookfield Case Page
The central issue in Brookfield was one which is especially important given the proliferation of multi-use, multi-storey developments around Australia’s major population centres. This was whether the builder of an apartment complex owes a duty of care in negligence to protect the Owners’ Corporation (as agent for the owners of apartments in the building) from pure economic loss arising from latent defects in the common property of that building where those defects were structural, constituted a danger to persons or property in the vicinity or made the apartments uninhabitable. The High Court found that the builder owed no such duty, reversing the decision of the NSW Court of Appeal.
This result may be surprising to lay people or those not versed in construction law. For the reasons we set out below, we think that the Court’s approach is, to a certain extent, based on flawed assumptions as to the availability of legal protection for building owners by way of contractual negotiation or legislation. That said, the decision reflects the greater trend in Australian law in the past ten years to reverse the expansion of the duty of care in negligence, and to leave the question of liability to contract or legislative schemes. Moreover, the Court’s continued backing away from tortious liability is consistent with the view expounded by the Court’s most recent appointee, Justice Nettle, in a 2004 Continue reading
Opinions on High extends our condolences to those affected by this morning’s events in Sydney, especially the bereaved. In the aftermath of this tragedy, there will undoubtedly be close scrutiny of Man Haron Monis, the man said to be the assailant in the Lindt Cafe. As part of its initial analysis, today’s Sydney Morning Herald notes Monis’s recent litigation before the High Court of Australia:
It has been Monis’ ongoing legal battle over his conviction for penning the poisonous letters to the families of dead Australian soldiers between 2007 and 2009 that has consumed him. It is understood Monday’s siege followed an unsuccessful, last-ditch attempt in the High Court on Friday, December 12, to have the conviction overturned.
This post outlines the various hearings the High Court has held relating to Monis’s argument that the federal crime he was charged with – using a postal service to cause offence – is invalid under the Constitution’s implied freedom of political communication. Continue reading
The High Court has dismissed an appeal against a decision of the Queensland Court of Appeal relating to proceeds of crime legislation. In 2002, police found nearly $600,000 cash in Henderson’s car, Continue reading
On Friday, the High Court held its last special leave hearings for 2014. The media reports that French CJ has referred a closely watched case, Cunneen v Independent Commission Against Corruption  NSWCA 421, where a majority of the NSW Court of Appeal stopped a corruption inquiry into allegations against a NSW prosecutor, to a full court hearing next year. However, various media reports have highlighted the Court’s refusal to hear appeals in three other high profile matters:
In Friday’s hearings, the Court granted special leave in just two matters:
The High Court has allowed the appeals in several related matters on duties payable on land. Following sales of various parcels of land in Melbourne’s Docklands, the Commissioner of State Revenue Continue reading
The High Court has partly allowed an appeal from the ACT Court of Appeal on whether corporate appellants have standing to bring an application under the s 5(1) of the Administrative Decisions (Judicial Review) Act 1989 (ACT). Continue reading
Today brings an end to recent speculation about the next appointment to the High Court. The Australian reports:
GEOFFREY Nettle, a “brilliant” judge of the Victorian Court of Appeal, has been named as the Abbott government’s first appointment to the High Court. Justice Nettle will replace Justice Susan Crennan, who will retire from the bench on February 3, five months ahead of schedule. Attorney-General George Brandis made the announcement this morning at Parliament House in Canberra. He walked out of the room immediately after making the announcement without taking questions.
Justice Nettle’s appointment is unsurprising in many respects: he is a Victorian (replacing another Victorian, Crennan J), a graduate of the ANU, Melbourne Law School and Oxford (see Katy Barnett’s discussion of High Court judges’ education), a sitting judge (like most recent appointments) and (in my and many others’ opinions) one of the best judges in Australia. He is also male, meaning that the High Court’s number of female judges will drop to just two out of seven, but that number may be short lived depending on who replaces Hayne J next year.
And yet, the recent speculation about Crennan J’s replacement discounted Nettle J as a possibility for just one reason: his age. Justice Nettle’s wikipedia page states that he was born in 1950 (but does not specify a birthday), meaning he will be either 64 or 65 when he first sits, easily the oldest ever appointee to the High Court. Continue reading
The High Court has unanimously allowed an appeal from a decision of the Full Federal Court on ‘increasing adjustments’ and the meaning of ‘supply’ under s 135-5 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Continue reading
A majority of the High Court has allowed an appeal against the decision of the Full Federal Court in Modena Trading Pty Ltd v Cantarella Bros Pty Ltd. Cantarella claimed that Modena had infringed its trademarks Continue reading