News: Major commercial implications in latest leave grants

After rejecting twentyseven special leave applications on the papers in recent weeks, the High Court granted over half of the applications in today’s oral hearings. Several of the cases raise major points of principle with significant commercial implications: compensation for loss of life, arrangements for near bankrupt companies, compensation for native title and the tax valuation of mining companies. In some instances at least, these are balanced by human elements. Notably, in one sad matter – involving the question of compensation for a shortened life expectancy – the transcript reveals that the defendant volunteered to pay the plaintiff’s High Court costs (on both appeal and cross-appeal) and that that the High Court offered to hear the matter speedily this April in light of the plaintiff’s deteriorating condition.

The six new matters that will proceed to the High Court’s appellate jurisdiction are:

  • Amaca Pty Ltd v Latz [2017] SASCFC 145, on whether a person whose life is shortened by another’s negligence should be compensated for the loss of defined benefit pensions. A trial judge ordered a manufacturer of asbestos fencing to pay $1M to the plaintiff, a career public servant, who contracted fatal mesothelioma forty years after installing that fencing at his house. A divided Court of Appeal held that the trial judge rightly included approximately $650,000 compensation for the loss of the approximately 16 years’ worth of government and public service pensions he would have received had he lived to his full life expectancy, but also held that the trial judge should have deducted approximately $420,000 for the extra survivor’s pension that his spouse would now receive as a result of her spouse’s premature death.
  • Mighty River International Ltd v Hughes [2017] WASCA 152, on whether a company in administration can enter into a deal with its creditors that delays its winding up without protecting the creditors. A mining company, Mesa Minerals, went into voluntary administration, but three months later its creditors and the administrator agreed to a deed of company arrangement that ended the administration, but did not provide creditors with any security or income. After a minority shareholder sued the administrator, the Western Australian Court of Appeal held that provisions of corporations law that provide for administering a company so as to maximise its potential to exist and its return to creditors permit such so-called ‘holding’ deeds.
  • Northern Territory of Australia v Griffiths [2017] FCAFC 106, on how to compensate  for the loss of native title. The claimants established that the Northern Territory illegally intruded on their title in and near Timber Creek (midway between Katherine and Kununurra) through public works and grants of freehold between 1980 and 1996. The Federal Court, in its first ever litigated compensation ruling on native title, granted the claimants $3.3M in compensation (comprising about $500,000 in lost economic value – 80% of the land’s freehold value, $1.5M in interest and $1.3M in non-economic loss.) The Full Court upheld the claim for non-economic loss, but held that the trial judge should have only awarded 65% of the freehold value for economic loss (in part because the native title rights were lawfully reduced in the nineteenth century and because loss of spiritual connection shouldn’t be counted as an economic loss), should not have awarded interest after some of the native title was restored and did not adequately justify additional compensation awarded for three ‘future’ (i.e. post-Mabo) interferences in native title.
  • Placer Dome Inc v Commissioner of State Revenue [2017] WASCA 165, on when stamp duty is payable for purchase of a mining company. After the world’s second-biggest gold mining company acquired the world’s fifth-biggest, it was made to ordered to pay Western Australia $54M in stamp duty on the approximately $1B of WA land it acquired through the purchase. The Western Australian Court of Appeal overturned the finding that over 60% of the purchased company’s value was its lad, holding that it failed to consider the company’s goodwill.
  • R v Johnson [2015] SASCFC 170, yet another South Australian case involving repeated child sexual abuse. The defendant, aged 61, was convicted of five counts of child sexual abuse and rape of his sister between four and five decades earlier. Although the Court of Criminal Appeal held that the jury should have acquitted on the earliest count (on the basis that the then 10-year-old defendant may not have understood that the abuse was wrong) and a count of persistent exploitation (because the alleged abuse was so routine that the jury could not have agreed on the required two identifiable acts of abuse), it upheld the other three convictions, ruling that the five counts were properly tried together, the trial judge’s directions were adequate and those three verdicts were reasonable.
  • SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055, on the possible impact of an incorrect non-disclosure certificate on a refugee decision. The Federal Court held that the applicant’s claim that he faced a risk of harm if he was returned to Bangladesh was reasonably rejected by the Minister and the Administrative Appeals Tribunal on the basis of the applicant’s lack of credibility (despite his mental illness.) However, the Court still set aside the Tribunal’s finding because the Minister had issued a certificate to the Tribunal appearing to bar the disclosure of some internal working documents that had already been released to the applicant.
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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

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