About Katy Barnett

Katy Barnett is an Associate Professor at Melbourne Law School. She was awarded her PhD in 2010, and it was published in 2012 by Hart Publishing as a monograph entitled Accounting for Profit for Breach of Contract: Theory and Practice. In 2013 she was a visiting scholar with Brasenose College, Oxford as part of the Melbourne-Oxford Faculty Exchange.

Thorn in the Side of Prenuptial Agreements? Thorne v Kennedy

By Katy Barnett

Thorne v Kennedy Case Page

In Thorne v Kennedy, the High Court unanimously struck down both a prenuptial and a postnuptial agreement (the plurality on the basis of undue influence and unconscionable conduct, and Nettle J and Gordon J on the basis of unconscionable conduct alone). The agreements had been entered into by a impoverished 36-year-old woman from overseas (known by the pseudonym ‘Ms Thorne’) who married a 67-year-old wealthy Australian property developer (known by the pseudonym ‘Mr Kennedy’). Prior to and after the wedding, Ms Thorne agreed that she would have very little claim on Mr Kennedy’s assets (worth between $18 million and $24 million) if her relationship with her husband broke down because he wanted his money to be kept for his three children from his first marriage. Ms Thorne’s English was poor; she had no assets; she was desperate to have a child; her Australian visa was about to expire, and she would not be able to get a new visa without her marriage; and Mr Kennedy asked her to sign the prenuptial agreement four days before the wedding, when all her family had come to Australia from her home country to attend. She was told that if she did not sign the wedding would not go ahead and the relationship would end, and so she signed the agreement. This was despite the fact that the independent solicitor whom Mr Kennedy arranged to advise Ms Thorne implored her not to sign it and pronounced it the worst agreement she had ever seen. Pursuant to the prenuptial agreement, Ms Thorne was obliged to sign a postnuptial agreement in the same terms, which she did, although the independent solicitor again advised her not to. Ms Thorne and Mr Kennedy divorced just under four years later.

Some have argued that this signals the death-knell to ‘binding financial agreements’ under pt VIIIA of the Family Law Act 1975 (Cth) (eg, here) because there will almost never be equality between partners, whereas others (eg, here and here) argue that binding financial agreements will still be viable, but care must be taken with the circumstances of entry into such agreements. Continue reading

News: Historic Old High Court building in Melbourne

Melbourne-based readers of the blog may be interested to know that the Victorian Supreme Court will be opening the Melbourne Old High Court building on 30 July from 10am to 4pm as part of the Open House Melbourne Festival. In addition from 2 – 2:30pm, there will be a talk on the architecture and history of the building by Robin Grow, an expert in Art Deco architecture, and Joanne Boyd, the Supreme Court Archives and Records Manager. This post outlines some of the significance of the building, with a quick dip into significant constitutional cases for those who have an interest in such matters. [Update: for a fascinating personal insight into his role in ensuring the Supreme Court made use of the Old High Court and the decision-making process with regard to the crossover between the Supreme Court and the Old High Court see Hon. Philip Mandie’s comment on the post.]

Image taken by Heather Turk

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News: Rectification of buildings and the High Court

The High Court has handed down two important cases on rectification of building works, each of which suggest that the court places a high value on rectification. However, as discussed below, I could not have guessed that the High Court’s passion with regard to building rectification may have stemmed from its own experience. [Post corrected below]

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News: New High Court Robes

During Kiefel CJ’s ceremonial sitting to mark her investiture as Chief Justice (recorded here), it is noted that she had particular involvement with the design of the new High Court robes. She was also apparently pivotal in designing the Federal Court robes, and commissioned theatre designer Bill Haycock to design them. Haycock was subsequently also asked to redesign the High Court robes.

I confess to having a crafty streak, although I am no weaver – drawing, writing and knitting are more my cup of tea.

I was delighted by this blog post, by Kay Faulkner, the weaver responsible for the sleeves for the new High Court robes. Please do read it all in detail if you want to know about the process of creating the robes. The material is handwoven, and exquisite. The pattern of the sleeves were designed to resemble the ripples left by waves on sand. It is fascinating to look at the way in which the various parties worked together and created these beautiful robes. Delightfully, everyone took a turn at weaving the final thread on the fabric.

After reading this post, I watched the video of Kiefel CJ’s investiture with a different understanding of the care which had been taken to make those robes.

News: Congratulations James Edelman, new High Court Judge

I was particularly delighted to hear of James Edelman’s recent appointment to the High Court of Australia, as he is a friend and former academic colleague. Indeed, his book based on his PhD thesis, Gain-Based Damages: Contract, Tort, Equity and Intellectual Property was the inspiration for my own PhD thesis.

Edelman J’s list of achievements are impressive: degrees in law, economics and commerce, a Rhodes Scholarship, a BCL and a DPhil from Oxford, a Professorship at Keble College, Oxford, followed by an appointment to the Supreme Court of Western Australia in 2011 and an appointment to the Federal Court in Queensland in 2015. He has numerous publications in the area of private law, and a keen interest in theoretical scholarship.

We extend our warmest congratulations to him and to our new Chief Justice, Susan Kiefel.

News: Bell Group case led to Attorney-General and Solicitor-General rift

It is no secret that relations between Attorney-General George Brandis and Solicitor-General Justin Gleeson were “irretrievably broken” when Gleeson resigned as Solicitor-General in October this year. However, it has now been revealed that there may have been a High Court connection to the rift: it has been reported today that the ever-sprawling, never-ending Bell Group case may have led to the difficulties between the pair.

As I noted earlier this year, the Bell Group case looked to have settled in 2013, but the Western Australian government’s attempt to distribute the settlement funds via a statutory scheme was struck down by the High Court in May in Bell Group N.V. (in liquidation) v Western Australia [2016] HCA 21. The ATO was a major creditor who would have lost out had the Western Australian legislation been held to be valid.

The West Australian reports that Brandis had apparently made a deal with the Western Australian government that the legislation would not be challenged, and that Brandis instructed Gleeson not to run a particular argument in the May case. It was reportedly Gleeson’s refusal to comply with this which led to the rift. Continue reading

News: Vale James Merralls AM QC

We were deeply saddened at Opinions on High to read of the death of Mr James Merralls, AM QC, editor of the Commonwealth Law Reports for the last forty seven years. The High Court issued a press release celebrating the considerable achievements of Mr Merralls:

Mr Merralls was the editor of the Commonwealth Law Reports, the authorised reports of the decisions of the High Court of Australia, for 47 years commencing in 1969. His unsurpassed period as editor was one of great public service to the Court, the profession and to the administration of justice in Australia. The high standard of his work as editor has been publicly acknowledged by two former Chief Justices of the Court, Sir Anthony Mason and Chief Justice Murray Gleeson. Mr Merralls, who served as an associate to another Chief Justice of this Court Sir Owen Dixon, rose to become a leading member of the Victorian Bar with a national reputation. He will be greatly missed.

I first came to know Mr Merralls after I sat next to him at a conference lunch about four years ago, although I had already known of him by reputation while in practice and when working at the Victorian Supreme Court. He was a polite and humble man who always stopped to say hello when he saw me; a gentleman. To my delight, it became evident that he was a reader of this blog, and he would engage me in debate about posts.

Mr Merralls’ humility did not stop others from recognising his considerable skills, and in 2013, he was awarded an Honorary Doctorate in Laws by the University of Melbourne. Then, in 2014, a Visiting Fellowship in Law was established at Melbourne Law School in Mr Merralls’ honour.

We extend our deepest condolences to Mr Merralls’ wife and children.

Coralling the penalties horse: Paciocco v Australia and New Zealand Banking Group Ltd

Paciocco v ANZ Case Page

It’s said that you can’t shut the stable door after the horse has bolted, but this presumes that there is only one door. If there is a gate on the field around the stable, then the horse can be successfully corralled by shutting the second door, even if the first door is left wide open. And in Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28, the High Court effectively shut a ‘second door’ to prevent the penalties doctrine from escaping. The ‘doors’ are the two questions a court must ask when establishing whether a clause is a penalty and thus void or unenforceable:

  1. Is this a clause to which penalties doctrine applies?
  2. On the facts, is this clause a penalty?

The first door had been left ajar in Andrews v Australia and New Zealand Banking Group Ltd [2012] HCA 30, potentially allowing the penalties doctrine to invalidate (at least partially) a wider range of clauses. This post will focus on the penalties doctrine rather than on the statutory claims of the appellants. It is suggested that after Paciocco there will only be a very small number of cases where plaintiffs can successfully challenge contractual clauses as void or unenforceable penalties. The Court’s findings regarding the question of whether a specific clause was a penalty indicate that the second door has been closed so that only the tiniest crack remains. This will be a relief for organisations such as banks and utility companies as they will have greater latitude to charge late payment fees. And it will provide particular relief for construction contractors, who were concerned that abatement provisions (often used in PPP or Public Private Partnerships) and time bar provisions would be penalties pursuant to Andrews. Continue reading

News: Bell Group litigation – harder to kill than a Hydra

In September 2013, it appeared that the Hydra had finally been slain: the long-running, complex and expensive Bell Group litigation had settled just before the hearing of an appeal to the High Court. However, just like the Hydra of myth, it appears that where one head of litigation is cut off, at least one other will grow. The High Court has just ruled in Bell Group N.V. (in liquidation) v Western Australia [2016] HCA 21 that the Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 (WA) (‘Bell Act’), under which the $1.7B settlement sum was sought to be distributed, is constitutionally invalid. The legislation was rushed through the Western Australian parliament last year, but last-minute amendments made in April this year were insufficient to save it. It seems likely that the Bell litigation will continue, as litigation had previously been both threatened and commenced after settlement and prior to the enactment of the Bell Act.

Attribution: Wolfgang Sauber

Attribution: Wolfgang Sauber

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News: High Court grants injunction staying asylum seeker’s abortion

In breaking news, ABC News reports that the High Court has issued an urgent injunction restraining an asylum seeker from having an abortion. (The Commonwealth later clarified that she was in fact a refugee to whom a temporary protection visa has been granted). The woman, who is held on Nauru, had requested the abortion in Australia. However, she was flown out to Papua New Guinea yesterday to undergo the procedure, without any notice. She has sought a stay of the procedure because of doubts as to the legality of the procedure in Papua New Guinea.

In what follows below, I outline the law with regard to abortion in Papua New Guinea, and the test for an interlocutory injunction.

UPDATE: The transcript of the application before Keane J is now available. Continue reading

News: Bell Group – the litigation that just won’t die

In September 2013, I reported that long-running and complex Bell Group litigation had settled immediately before an appeal to the High Court was to be heard. The litigation began in 1995, and related to loans given to Alan Bond’s Bell Group of companies. However, it seems that the litigation just won’t die.

As I noted just before settlement, the question of how the settlement sum was to be distributed was potentially controversial. The litigation had been funded by the WA State Government-owned Insurance Commission of Western Australia (ICWA). Western Australian motorists had to pay an annual levy of $50 on third party insurance from 1993 to 1996 to assist ICWA, known as the WA Inc levy. That promise of controversy has now been realised. Continue reading

News: High Court circuit hearings reduced by budget cuts?

As the Canberra Times reports, the High Court has just released its Annual Report for 2014 – 2015, which contains an alarming warning about circuit hearings around the country in light of budget cuts imposed by government imposed ‘efficiency dividends’. In French CJ’s Overview, he says at page 16:

In the 2014-2015 year, income received by the High Court including from its principal source, namely parliamentary appropriations, was $16.336 million. Operating expenses including unfunded depreciation charges of $4.802 million amounted to a total of $21.167 million. The underlying deficit after taking out unfunded depreciation allowances was $29,334.

The High Court has a small administration. Its total staff comprises (not including Justices) 99 persons. Thirty-seven are full-time and part-time ongoing staff, 36 are full-time and part-time non-ongoing staff and 26 are casual staff. The Court operates nationally with extended logistical requirements and large fixed costs. Its level of funding is low compared with the Parliament and many parts of the Executive Government. Historically its appropriated revenues have not kept pace with unavoidable cost increases particularly in building related expenditure. Many of the Court’s administrative costs are fixed, for example, statutory charges for electricity to operate the building. Government imposed efficiency dividends affect core elements of the Court’s operations such as Registry and Library staffing. The Court has undertaken comprehensive reviews of its Registry and administrative processes and structures since 2008. The position continues to be that there is no material scope to reduce the Court’s administrative costs without cutting significant elements of its operations including circuit visits which it undertakes from time to time to Perth, Adelaide and Brisbane dependent upon the workload in those capitals.

[emphasis added]

It would not be positive if the High Court were no longer able to go on circuit to some capital cities (or, as the Canberra Times suggests, any other capital cities other than Canberra). The High Court is a court for all of Australia, and as such, it is important that it has a presence in all States and Territories of Australia.

Back in the days when I was a State judge’s associate, I became enraged by a government questionnaire which described the court as a “business unit.” Courts are not “business units”. They do not produce profits. While courts certainly should not waste money, and should have an efficient administration, it sounds like the High Court has already achieved this. Fundamentally, the High Court is an essential arm of government whose role it is to adjudicate disputes. What price justice?

News: Special leave to appeal revoked in Fernando v Commonwealth

Fernando v Commonwealth purportedly raised the issue of what measure of damages were appropriate for a case of wrongful immigration detention where the plaintiff could have been lawfully detained in any event. However, the High Court has now revoked special leave on the basis that the appellant’s argument did not adequately raise that question.

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News: US anti-abortion activist fails in High Court bid to fight deportation

US anti-abortion activist Troy Newman has failed in his last minute High Court bid to challenge the revocation of his Australian visa. His visa was revoked days before he was due to tour Australia. Newman has espoused controversial views regarding abortion, suggesting in a co-authored book that persons who seek abortions and doctors who perform them should be executed for murder. Minister for Immigration Peter Dutton cancelled his visa pursuant to s 128 of the Migration Act 1958 (Cth). Section 128 allows the Minister to cancel a visa before the non-citizen holder enters Australia on the basis of the considerations set out in s 116. The relevant consideration in this case was s 116(e)(i): namely, that the presence of the visa holder in Australia might pose a risk to the health, safety or good order of the Australian community or a segment of the Australian community. Continue reading

News: Epilogue to the Beckett malicious prosecution case

In 2013, the High Court held that there was no requirement to prove innocence in malicious prosecution in the case of Beckett v New South Wales [2013] HCA 17. I wrote an opinion on the case here. Ms Beckett’s malicious prosecution case was then remitted back to the New South Wales Supreme Court for decision. Readers may be interested to hear that the New South Wales Supreme Court has now determined that case. Continue reading

News: Sitting in Memory of the Late Honourable John Leslie Toohey AC

The High Court holds ceremonial sittings to mark significant events: welcomes to judges, farewells to judges, appointments of Queen’s Counsel and Senior Counsel, first and final sittings of judges in particular cities, and final sittings in particular buildings. Such sittings are also held in memoriam for late judges.

On 10 August 2015, the High Court held a Sitting in Memory of the Late Honourable John Leslie Toohey AC in Perth. The transcript is now available here. The Court notes that Justice Toohey’s Western Australian predecessor, Sir Ronald Wilson, was similiarly honoured with a ceremonial sitting some ten years ago, at which Justice Toohey was present. A ceremonial sitting has also been held for the Late Honourable Sir Harry Gibbs in 2005. Presumably a ceremony will be held for Justice Jacobs, who also passed away this year.

Edelman J’s obituary for Justice Toohey was posted on the blog here.

News: Vale Sir Kenneth Jacobs

Sir Kenneth Jacobs, former Justice on the High Court from 1974 to 1979, has passed away aged 97. The High Court noted his passing and his contributions to the court in a media release:

The Court notes with sadness the recent passing, in the United Kingdom, of Sir Kenneth Jacobs KBE, who served as a Justice of the Court from 1974 to 1979. Sir Kenneth, who was born in Sydney in 1917, graduated from Sydney University with a Bachelor of Arts in 1938, served with the Australian Imperial Forces during the Second World War and on his return to Australia graduated in 1947 with a Bachelor of Laws with First Class Honours and the University Medal. He practised as a barrister in New South Wales and was made Queen’s Counsel in 1958. He served as a Judge of the Supreme Court of New South Wales form 1960 to 1974, including eight years on the Court of Appeal culminating in his service as its President from 1972 to 1974. He was appointed to the High Court in 1974 and retired on 6 April 1979. His judgments in the Court, which are still quoted, made an important and lasting contribution to the development of a number of areas of public and private law.

Fuller biographical details are available via the Court’s website here.

An obituary in The Australian provides further details about the circumstances of his retirement from the Court in 1979 and his later life:

Sir Kenneth Jacobs, a self-described liberal who resigned from the High Court in 1979 after being misdiagnosed with stomach cancer, has died aged 97….  Then chief justice Garfield Barwick didn’t want Jacobs to resign, but Jacobs, then aged 61, felt the prognosis was so dire that he would be a drain on the court and left on April 6, 1979. When he did not suffer the predicted downturn in his health, Jacobs consulted another specialist who told him that he had only suffered a painful condition called diverticulitis.

Jacobs considered suing his first doctor, but decided against it and left Australia for England in the early 80s with his British-born wife Eleanor. He settled in Wiltshire and took up bookbinding — and later printing — as he settled into village life .After Lady Eleanor died in 2002, he went back to school and completed a Masters in Classics at London University.

Wikipedia lists the date of his death as 24 May 2015. Our condolences to his family.

Thanks Melissa Castan (@MsCastan) for alerting us.

News: French CJ gives Harold Ford Memorial Lecture on Trusts and Statute

Melbourne Law School was honoured to hear French CJ give the 2015 Harold Ford Memorial Lecture. This year’s topic was “Trusts and Statute”, a fitting nod to the late Professor Ford and his expertise in both trusts law and corporate law. Chief Justice French discussed the history of trusts and the way in which statute intertwined with trust law from a very early stage. He also discussed the impact of legislation on trust law in various different areas, including charities law, tax law and corporate law. His comments on the need for coherence, and on the difficulties and advantages of statutory intervention were of particular interest.

His Honour’s presentation was videoed and is available for viewing here.

A Statutory Exception to Immediate Indefeasibility Explained: Cassegrain v Gerard Cassegrain & Co Pty Ltd

Cassegrain case page

Tolstoy famously starts Anna Karenina with the line: “All happy families are alike; each unhappy family is unhappy in its own way.” There is nothing quite so unhappy as a dispute between family members which ends up in court. In Cassegrain v Gerard Cassegrain & Co Pty Ltd, the dispute was between siblings who all had interests in the family company, Gerard Cassegrain & Co. The dispute before the High Court was the latest in a long line which began when the family patriarch, Gerard Cassegrain, died in 1993. Gerard and his wife had six children. Gerard’s second child, Claude, was the appellant in this case. The dispute involved certain land which Claude had registered in his and his wife’s name, and then solely in his wife’s name.

In Australia, we have Torrens title. Torrens title is often said to have the benefit of indefeasibility, which means that when a person becomes the registered proprietor of land, that title is not subject to any unregistered interests which may have existed before registration. This means that a person who becomes the registered proprietor of a Torrens interest can be secure about their transaction; they will not be subject to any unknown pre-existing interests. However, it may operate unfairly to those who have pre-existing interests in the land. Consequently, there are a number of limited exceptions to indefeasibility, including the fraud exception. This was the exception which was considered in Cassegrain. Continue reading

News: Bank fees back to High Court

In December 2013, I predicted that the now long-running case involving bank fees would end up again before the High Court. That prediction appears to be about to come true.

In February 2014, after the High Court’s earlier decision in Andrews v Australia and New Zealand Banking Group Limited [2012] HCA 30, Federal Court judge Gordon J decided that most of the disputed fees were not penalties, apart from late credit card payment fees (as I posted here). Yesterday, in a resounding victory for the banks, the Full Federal Court in Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50 held that none of the fees were penalties, including the late payment fees. Moreover, none of the fees were unconscionable or unfair.

The Full Federal Court overturned her Honour’s judgment with regard to the late payment fees on the basis that she incorrectly looked at whether the fees paid by Mr Paciocco and his company were ex post (after the event) exorbitant and extravagant, rather than looking at the greatest ex ante (predictable) loss which could have flowed from the breach and assessing the reasonableness of the fees in that light (see [51]-[52] of Allsop CJ’s judgment, with which Besanko J and Middleton J agreed in separate judgments). In light of yesterday’s decision, the plaintiffs have indicated that they intend to appeal to the High Court. The Age reports today:

After ANZ’s appeal was allowed on Wednesday, Maurice Blackburn’s national head of class actions, Andrew Watson, who is representing customers, said he would appeal against the Federal Court’s ruling in the High Court:”Obviously we’re still digesting the details of what’s a very large decision, but based on what we’ve read, we think there are grounds for appeal and we will be making an application for special leave to appeal to the High Court,” he said.

“It is perhaps appropriate that Australia’s largest consumer class action will ultimately be determined by Australia’s highest court, and as a result of today’s decision, that’s where we’re headed…”

Meanwhile, the banks are hoping that their latest win will signal the end of the litigation. I predict that there’s scant chance of that.

News: Furore over AHRC President

Recently, Australian Human Rights Commission President Gillian Triggs has been under intense criticism, particularly by The Australian newspaper for her handling of an AHRC report involving a West Papuan man called John Basikbasik.Two points should be made at the outset. First, Triggs is not a judge, and accordingly her decision was not binding. The report contained recommendations which could be rejected by the Minister. Secondly, the Minister did in fact reject President Triggs’ recommendations in May 2014. Mr Basikbasik remains detained and will not receive the recommended compensation.

As these two recent articles in The Australian indicate, the criticisms are being made in the context of a wider furore about the timing of Triggs’ AHRC report into children in detention. Indeed, Richard Ackland has claimed that The Australian newspaper is focusing on the Basikbasik case for this reason. Academic opinion about the Basikbasik case has generally been on Triggs’ side, as prominent Australian international law scholars and others have written to express their support of Triggs’ determination in the Basikbasik case. Professor Mirko Bagaric of Deakin University was a rare exception, and expressed the view that the determination was in error because it took into account the International Covenant on Civil and Political Rights (‘ICCPR’). On Friday last week, The Australian published an article by Professor Ben Saul of Sydney University which was strongly in favour of Triggs. As Professor Saul points out, the definition of the “human rights” under s 3 of the Australian Human Rights Commission Act 1986 (Cth) expressly mentions the ICCPR as a source of such rights.

There is a High Court link to the furore, as the Basikbasik case came before the High Court in 2013, although he was called SZOQQ. Continue reading

News: Thoughts on new judges for the High Court

This morning, George Williams has a piece in the Sydney Morning Herald, noting that Crennan J and Hayne J will soon retire, and that Crennan J intends to step down from the Court on 2 February 2015. It is natural to predict who will replace the outgoing judges, although as Williams notes:

Every High Court appointment leads pundits to forecast who will be selected. Doing so can be fraught. The most worthy candidates often miss the cut, while others prove a surprise. As I have said elsewhere, predicting the next High Court justice is like trying to pick the winner of the Melbourne Cup, but without knowing who is in the field.

Williams notes that diversity, gender, ethnicity and geography are often taken into account in making new appointments. There has to be a balance between the judges from different States of Australia, and as the two outgoing judges are Victorian, it seems that at least one of the replacements is likely to be Victorian. Consequently Williams concludes:

If you were wanting to place a bet on Australia’s next High Court judge, the smart money would be on a serving judge from Victoria, aged 60 or under, with impeccable legal credentials. The person would also be favourably regarded in conservative circles and would not have a background of supporting the states. Beyond that, it’s anyone’s guess.

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News: Reflections on Tampa and CPCF at the Constitutional Reform Unit

We recently came across this excellent post at the University of Sydney’s Constitutional Critique blog on the upcoming case, CPFC v Minister for Immigration and Border Protection:

First came the victory, when in Pape it was held to authorise laws governing stimulus payments during the GFC. Then came the defeat, when in Williams (No 1) it was denied the capacity to authorise funding for chaplains in schools. Now non-statutory executive power (NSEP) is poised to make a comeback, in its most controversial and politically-charged instalment yet, CPCF v Minister for Border Protection and the Commonwealth. But whereas in previous cases the stakes were measured in dollar terms, this time the consequences of the alleged exercise of NSEP have a human face.

It will be very interesting to see whether the High Court takes the opportunity to consider the scope of non-statutory executive power (NSEP), or whether the unresolved issues in the Tampa case with regard to the Commonwealth’s NSEP will remain in that state.

News: Supreme Court blog and Harold Ford Memorial Lecture

First, last year, we mentioned the possibility that the Victorian Supreme Court was going to start a blog. The blog has come to fruition and has just published its first substantive post, ‘The many challenges of modern common law litigation’ by Forrest J. The post appears to be further the court’s ambition of ‘creating greater community understanding’ about the law, as it is clear, (relatively) non-technical, conversational, and offers plenty of context about the issues discussed.

Secondly, for those interested in corporate law and securities regulation, Hayne J gave this year’s Harold Ford Memorial Lecture hosted by the Centre for Corporate Law and Securities Regulation. His lecture was entitled Directors’ Duties and a Company’s Creditors. The video is available on the CCLSR’s website here and on the University’s youtube channel. Hayne J’s paper has been accepted for publication in volume 38(2) of the Melbourne University Law Review which will be published before the end of 2014.

News: New Zealand Supreme Court follows High Court on political charities

A charity or a trust with a ‘political purpose’ has traditionally been held not to have charitable status (sometimes called the Bowman principle). In Bowman v Secular Society [1917] AC 406, Lord Parker said at 442:

a trust for the attainment of political objects has always been held invalid, not because it is illegal, for every one is at liberty to advocate or promote by any lawful means a change in the law, but because the Court has no means of judging whether a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure the change is a charitable gift.

This has been subsequently upheld in English case law in cases such as McGovern v Attorney-General [1982] Ch 321 and Hanchett-Stamford v Attorney-General [2009] Ch 173. The latter case held that while a new Charities Act had been enacted in 2006, this did not change the fundamental principle that charities with political purposes were not charitable.

By contrast, in 2010, a majority of the High Court of Australia declined to follow the English case law in Aid/Watch Incorporated v Commissioner for Taxation [2010] HCA 42. At [45]–[46], French CJ, Gummow, Hayne, Crennan and Bell JJ noted that agitation of political and public debate could be a societal good, and that the court did not have to decide on whether the political purposes furthered by the charity were legitimate.

Now, in In re Greenpeace [2014] NZSC 105, a majority of the New Zealand Supreme Court has decided to follow the High Court’s lead. Following the decision of the New Zealand Court of Appeal in Molloy v Commissioner of Inland Revenue [1981] 1 NZLR 688, the Charities Commission in New Zealand had refused to register Greenpeace as a charity on the basis that two of its purposes were political, namely the promotion of disarmament and peace and the agitation of change to government policy and legislation. The Australian approach was an important influence on the Supreme Court’s decision to overturn the political purpose exemption (see [66]–[71] of In re Greenpeace). As with the High Court decision, the New Zealand Supreme Court was not unanimous and there were two dissenting judges. As the majority noted, there is still a possibility that Greenpeace will not qualify as a charity in light of arguments that it furthers illegal purposes by endorsing trespass and other such activities when advocating “non-violent direct action.” Now the question of Greenpeace’s status as a charitable entity has been remitted back to the Charities Commission for reconsideration in light of the New Zealand Supreme Court decision.

Sir Anthony Mason Reflects on Judging in Australia and Hong Kong, Precedent and Judgment Writing

On 18 July 2014, I was able to interview Sir Anthony Mason as we were both attending Obligations VII Conference in Hong Kong.

Sir Anthony was a judge of the High Court of Australia from 1972 to 1987, and Chief Justice of the High Court of Australia from 1987 to 1995. He then became a non-permanent judge of the Hong Kong Court of Final Appeal, a position which he still holds.

We spoke about his roles as a judge in Australia and Hong Kong, significant judgments during his time as a High Court judge, the role of dissenting judgments, the use of academic commentary and overseas judgments, the doctrine of precedent and Farah v Say-Dee, and judgment writing styles.

KB: Thanks so much for agreeing to speak to me today.

AM: It’s a pleasure, Katy.

KB: The first thing I’d like to ask is: how would you view your time on the High Court?

AM: I enjoyed it very much. I suppose I can say I enjoyed being a judge.

KB: Yes.

AM: In one sense I regarded it as great fun. It was of course at times onerous, but I always enjoyed it. The questions were interesting and it was interesting endeavouring to answer the questions.

KB: And on that note, obviously you haven’t still given up being a judge. What about your time on the Hong Kong Court of Final Appeal? (See also The Hon Sir Anthony Mason, ‘The Hong Kong Court of Final Appeal’ (2001) 2 Melbourne Journal of International Law 216.)

AM: Likewise, I’ve enjoyed that very much. There are two different, or two aspects of that that are different from sitting in the High Court. First of all I am sitting on the CFA as a part-time judge. It’s more enjoyable being a part-time judge than a full-time one. Of course you don’t feel that sense of grind which you feel at times if you’re a permanent judge sitting on a court over a long period of time. But the second feature of sitting on the CFA is that I began sitting on that Court at the time when courts began to interpret the provisions of the Basic Law of Hong Kong’s Constitution. And it’s very different interpreting the provisions of a new Constitution at the very beginning from interpreting the provisions of an old Constitution after a lot of, as it were, work has already been done on it. You feel at times in the medium of the High Court that you’ve got to contend with a lot of overburden. You never have that feeling in Hong Kong. And the great thing about it is that it instils in you a sense of history and appreciation of the work done by those great judges who were the first High Court judges. I mean, they were remarkably good judges. They quickly established a reputation for the High Court as one of the leading courts in the world, and what’s more, they stood up to the Privy Council, and in their first big confrontation with the Privy Council they won out, and you should never forget their contribution to the development of Australian democracy and to the Australian Constitution. (See Deakin v Webb [1904] HCA 57.) Continue reading

News: High Court is Australia’s most trusted institution

A recent Essential Poll records that Australia’s most trusted institution is the High Court of Australia. 20% of the 1835 people surveyed said that they placed “a lot of trust” in the High Court” and 37% said that they placed “some trust” in the High Court. The High Court outstripped all other institutions, but was closely followed by the ABC. The High Court also had the lowest level of distrust, with only 12% of respondents saying that they had “no trust” in the High Court. Political parties scored the lowest in the 2014 poll, with only 2% of people saying that they placed “a lot of trust” in political parties and 11% of people saying that they placed “some trust” in political parties. 50% of people said that they had “no trust” in political parties. Continue reading

News: Media round-up on Chaplain Case

Sometimes High Court judgments excite a lot of interest not only from lawyers, but from the general public. Williams v Commonwealth [2014] HCA 23 (‘Williams [No 2]’) is one such decision.

The immediate response from the Prime Minister was that the government would try to continue its support of chaplaincy in State schools despite the High Court’s decision. In a comment which was later roundly criticised by many, Coalition backbencher Andrew Laming said that an out-of-touch “alliance of Greens, gays and atheists” had mounted a campaign against chaplaincy culminating in the result of the latest case.

Some saw the case as a ‘Trojan Horse’ for a resurgence of States’ Rights activism, whereas others argued that it was a victory for LGBTIQ youth. Some were concerned about what was going to happen with regard to the funding for chaplains which had already been paid over.

The IPA opined that Williams [No 2] was a win for parliamentary democracy because it reiterated that decisions over how public money should be spent should be made by parliament, not the executive, and that the separation of powers was upheld. With respect, this is overstating the result of Williams [No 2]. Williams [No1] decided that the Commonwealth executive had no power to enter into the funding agreements for chaplaincy with Scripture Union Queensland. The High Court did not decide Williams [No 2] on the basis of parliamentary sovereignty, and as Professor Cheryl Saunders notes, the case ‘does not add a great deal of substance to the conclusions about the ambit of the executive power of the Commonwealth reached in Williams [No 1].’ The judgment did not mention separation of powers. It decided the case on the narrower ground of whether there was any particular head of power which supported the funding in the specific instance of chaplains (it was found that there was no head of power which did support it). As Professor Simon Evans explains here, it hinged around whether there was a ‘benefit to students’. Williams [No 2] simply represents a tightening of our understanding of the legislative heads of power.

Other media commentators were interested in what other programs could be affected by the ruling. Indeed, a perusal of the programs which are covered by Schedule 1AA of the Financial Management and Accountability Regulations 1997 (Cth) makes for interesting reading.

 

Estopped from Denying the ‘Love Shack’: Sidhu v Van Dyke

By Dr Katy Barnett

Sidhu v Van Dyke Case Page

Napoleon Bonaparte said ‘the best way to keep one’s word is not to give it’. Perhaps the defendant in Sidhu v Van Dyke [2014] HCA 19 should have heeded those words, although the case came down not to the fact that Sidhu made and broke a promise, but to the fact that that the plaintiff, Van Dyke, relied upon the promise to her detriment (see the joint judgment at [58]).

Van Dyke had rented a cottage from Sidhu and his wife, who lived 100 metres away in the main homestead on the property. The property was jointly owned by Sidhu and his wife. Van Dyke and Sidhu commenced a sexual relationship which led to the breakdown of Van Dyke’s marriage. Sidhu told Van Dyke not to worry about getting a property settlement in the divorce, as he would subdivide the land belonging to him and his wife, and give the cottage to Van Dyke. However, when his relationship with Van Dyke ended some eight years later, Sidhu repudiated his earlier promises and Sidhu’s wife refused to consent to a subdivision. The High Court clarified that Australian law did not recognise Lord Denning’s ‘presumption of reliance’ in Greasley v Cooke [1980] 1 WLR 1306. In other words, Australian law does not presume reliance on the part of a representee (in this instance Van Dyke), and a representee is still required to make out detrimental reliance. Moreover, the burden of proof to establish detrimental reliance is always on the representee.

The Court unanimously concluded that Van Dyke had made out detrimental reliance and found that Sidhu was estopped from denying his promise to Van Dyke. But as the cottage had burned down and the subdivision had never taken place, Van Dyke was awarded equitable compensation reflecting the value of what she had lost. Continue reading

News: The Higher the Court, the More Formal the Dress

A recent article in Slate reported that female lawyers who dress too “sexily” are said to be a “huge problem” in US courtroom. Some courts have instituted “dress codes” and some universities have instructed their students on what appropriate dress should be. The dress codes and instructions have included instructions for men, but have concentrated on female clothing. When I posted this on Facebook it started off a discussion. A number of male lawyer friends made the point that men were subject to dress codes too, and that men who didn’t wear ties or who wore short sleeves would be likely to contravene the dress code. This is true. However, I think that women have to navigate a vastly more complex situation. Continue reading

Protecting the Plaintiff’s Expectations: Clark v Macourt

By Dr Katy Barnett

Clark v Macourt Case Page

Clark v Macourt [2013] HCA 56 is a case where the damages awarded far outstripped the cost of the original contract. The contract concerned the sale of an IVF business for close to $387,000, but a majority of the High Court affirmed the decision of the trial judge that the purchaser of the business was entitled to damages of over $1.2 million for a breach of warranty, as a substantial amount of the sperm included as an asset of the business did not comply with the warranty. This award was made notwithstanding the fact that the purchaser passed the cost of purchasing substitute sperm onto patients. This post will concentrate on the High Court’s recognition of the plaintiff’s interest in performance of the contract and the way in which damages are measured. Continue reading

News: Customers appeal in bank fees case

In February, I noted that Gordon J had handed down her decision in Paciocco v Australian and New Zealand Banking Group Limited [2014] FCA 52, the bank fees case. The ABC reports that the bank customers lodged an appeal yesterday. The Bank is still considering its position, and has three weeks to make a decision, but I would not be surprised if it also appealed. Nor would I be surprised if this case ends up before the High Court again.

Update: it’s always nice to have one’s predictions confirmed. As pointed out in comments below, the Sydney Morning Herald reports that the Bank filed an appeal today.

News: Most bank fees not illegal penalties

I noted in December last year that the issue of bank fees was back before Gordon J in the Federal Court. Today, Gordon J has handed down her decision in Paciocco v Australian and New Zealand Banking Group Limited [2014] FCA 52. Her original decision on the matter, Andrews v Australian and New Zealand Banking Group [2011] FCA 1376, was appealed to to the High Court in Andrews v Australia and New Zealand Banking Group Limited [2012] HCA 30. The case was remitted back to Gordon J. Somewhat confusingly, Paciocco is another representative plaintiff but the action is still the same. Interestingly, the outcome of Paciocco is very similar to the trial decision in Andrews. In the trial decision in Andrews, Gordon J held that only late payment fees were illegal penalties, whereas honour fees, dishonour fees, overlimit fees and non-payment fees were not illegal penalties. Despite the High Court’s extension of the doctrine of penalties in 2012, the outcome of Paciocco was identical: only late payment fees were penalties. This must be a relief to the bank and to other commercial entities, but a disappointment to the consumers. Continue reading

News: Spry on High

I recently had cause to consult the new ninth edition of ICF Spry’s Equitable Remedies, a tome which I have found very helpful and learned on the topics of specific performance and injunctions in particular. After finding what I needed, I idly browsed through the Preface, as I have difficulty writing Prefaces and I like to see how other authors manage it. However, I do not think I will be taking my Preface-writing tips from Dr Spry. At xi – xii, he criticises the High Court and certain of its judges.

His observations appear to be coloured by the High Court’s decision in Kennon v Spry [2008] HCA 56, where it was decided that Dr Spry would have to pay his ex-wife $2.2 million, and that trust assets were part of the matrimonial property. Indeed, when talking of “eccentric judgments” by the High Court, in footnote 3 on page xi, Dr Spry refers to a judgment of Justice Strickland made in 2005 where he held ‘obviously incorrectly, both that a multilateral release under seal is able to be disregarded unilaterally by the releasor and, moreover, that assets controlled by the releasor in his fiduciary capacity as trustee are to be treated as his personal property.’ Although he does not note it, this was the first instance judgment made in relation to Dr Spry’s family trust which the High Court later upheld. Notoriously, Dr Spry wrote a series of letters to the High Court protesting the decision, letters which he acknowledged had been widely read in the legal profession. Continue reading

Bank fees back in court again

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

News: Go Star is No Go

On 11 September 2013, leave to appeal was granted in The Go Star v Daebo International Shipping Co Ltd, as noted on our case page. The case involved the charter of a ship, and an allegation that the new charterer had committed the tort of procuring a breach of contract. The appeal to the High Court sought to ascertain what was the lex loci delicti (in other words, the law of the place where the tort was committed). The appellants sought to argue that the relevant law was Chinese law.

However, the High Court has just revoked special leave to appeal on the basis that the case ‘was not a suitable vehicle’ to determine what the lex loci delicti was for the tort of procuring breach of contract. Continue reading

News: Supreme Court of Victoria to have blog by retired judge

In the wake of the High Court’s video debut last week, Chief Justice Warren of the Supreme Court of Victoria delivered the Redmond Barry Lecture earlier this week, and spoke about a concern that justice is not as transparent and open because of the decline of traditional print media and specialist court reporting. Accordingly, she said that the court would engage with the public through a number of alternative media. The Supreme Court already has a Twitter feed, and has started streaming sentencing remarks. It is also looking to stream criminal trials.

Most interestingly, the court plans to have a blog written by a retired judge ‘to create greater community understanding around controversial issues.’ Continue reading

Trident v McNiece twenty five years on

The seminal third party contract case Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44 was decided twenty five years ago. It continues to be relevant to legal practice and legal education. It has had a lasting and important impact on insurance contracts, as it decided that the doctrine of privity did not apply to those contract. Typically the doctrine of privity means that only the parties to a contract are bound by it, and a person who is not a party to a contract (a ‘third party’) cannot enforce it. For example, suppose that Alphonse makes a contract with Bertha to the effect that Bertha will give Clarence an annuity after Alphonse dies. If Alphonse dies, and Bertha refuses to pay the annuity to Clarence, Clarence can’t force Bertha to keep to the contract because he is not a party to it.

The case also remains a reminder that the High Court will, when presented with the right circumstances, rework the law to achieve a just and fair outcome. In this post I will explore how the decision on the doctrine of privity has become entrenched; and discuss the impact on the decision, in particular the judgment of Deane J on our understanding of the law of express trusts.

What happened in Trident? Continue reading

News: Bell Group case may settle

The High Court recently granted leave to appeal on the Bell Group case, which, as the case page notes, is part of the infamous, long-running Bell litigation, involving twenty applicant banks and thirty respondent companies and liquidators. There have been rumours of settlement since July, and recent reports suggest that the case has been adjourned for six months and withdrawn from the High Court list in preparation for a settlement. If settlement occurs, this may be good news for Western Australians, as the litigation has been funded by the WA State Government-owned Insurance Commission of Western Australia (ICWA). Western Australian motorists had to pay an annual levy of $50 on third party insurance from 1993 to 1996 to assist ICWA, known as the WA Inc levy. Continue reading

News: Alcoholic drink branding, trademarks and passing off

One must wonder whether sometimes actions in passing off or trademark infringement are used in an oppressive way. A group of English parents whose children attended a school called Belleville Primary set up a micro-brewery called Belleville which produces Belleville pale ale. They now face legal action from US drinks manufacturer Anheuser-Busch, the makers of Budweiser. Anheuser-Busch claims that there is a chance that Belleville pale ale may be confused with its product, Belle-Vue, a fruit flavoured beer. Continue reading

No Requirement to Prove Innocence in Malicious Prosecution: Beckett v New South Wales

By Dr Katy Barnett

Beckett v New South Wales Case Page

In Beckett v New South Wales [2013] HCA 17, the High Court overruled its own previous authority outlining the circumstances in which a person can sue for the tort of malicious prosecution. The tort of malicious prosecution allows a plaintiff who was the subject of malicious and unreasonable court proceedings to seek a civil claim for damages against the prosecuting party. The malicious and unreasonable proceedings are generally (but not always) criminal in nature. In order to make out the tort, a plaintiff must prove (among other things) that the prosecution ultimately terminated proceedings in her favour. In this case, the Director of Public Prosecutions had decided to discontinue criminal proceedings against the plaintiff after a retrial had been ordered by the New South Wales Court of Criminal Appeal. The question for the Court in this case was whether the action of the DPP constituted termination of proceedings in the plaintiff’s favour, or whether it was necessary for her to go further and prove her innocence. Continue reading