The High Court spent three days in the past week (including two in Perth) sorting through applications to bring appeals before it. The Court turned down some high profile cases (including The Age’s battle to resist revealing its sources for its reporting on MP Joel Fitzgibbon and businesswoman Helen Liu and Hancock Prospecting’s attempt to retain a stake in a Pilbara iron ore venture), while agreeing to hear appeals from six judgments:
- Brown (on behalf of the Ngarla People) v State of Western Australia  FCAFC 154 examines whether the native title rights of the Ngarla people, including non-exclusive rights to camp on land, hunt and fish, engage in rituals and care for particular sites, were extinguished by mining leases and activities associated with an iron ore venture at Mt Goldsworthy. The Full Court of the Federal Court held that, while the exercise of those rights were inconsistent with the rights granted to the mining companies, they nevertheless continued to exist and could be exercised by the Ngarla people once the mining lease-holders ceased to exercise their own rights.
- Daebo Shipping Co Ltd v The Ship Go Star  FCAFC 156 involves the charter and sub-charter of the Go Star (a ship) through multiple companies, including Breakbulk Marine Services and Daebo Shipping. When Breakbulk defaulted on a payment to the owners, the owners withdrew the ship and urged a company that was about to sub-charter the ship from Daebo to withdraw from the charter (allowing the owner to charter the ship elsewhere.) The result was that Daebo was left with an unpaid invoice for ‘bunkers’ (fuel oil) loaded on to the Go Star and sued the owners. The Full Court of the Federal Court rejected claims for conversion and detinue (as ownership of the bunkers had already passed to the sub-charterer when the owners withdrew the ship), but, after holding that the multi-national dispute was governed by Australian law, upheld a claim that the owners induced the sub-charterer to breach its contract with Daebo.
- Electric Generation Corporation t/a Verve Energy v Woodside Energy Ltd  WASCA 36 concerns a contract for the supply of gas from producers in northwest Western Australia to the supplier of last resort in southwest Western Australia (including Perth), during periods when supply was disrupted by the explosion of gas facilities on Varanus Island and technical problems at a plant in Karratha. The Western Australian Court of Appeal held that the producers breached their contractual obligation to use reasonable endeavours to continue to supply the gas but held that further agreements negotiated during the disruptions (lifting the agreed price for gas) could not be undone, even though they were the result of economic duress.
- Honourable Brendan O’Connor v Adamas  FCAFC 14 examines a judge’s ruling quashing a 2010 decision of the then Minister for Home Affairs to surrender an allegedly corrupt bank official for extradition to Indonesia. The Full Court of the Federal Court upheld the judge’s ruling that the Minister failed to fully consider whether the official’s in absentia conviction by an Indonesian court was ‘unjust’ under Australian standards of criminal justice.
- Smith v Western Australia  WASCA 7 concerns the jury room discovery of a half-finished note to a judge, alleging that the author was ‘physically coerced’ into joining the ‘majority vote’, one day after a jury found the defendant guilty of indecent dealing with a child. Despite observations that the delivery of the verdict was accompanied by a visibly upset juror, a foreman who was a ‘little slow’ in affirming that the verdict was of the whole jury and an ‘unusually noisy’ departure of the jury, the Western Australian Court of Appeal held that a common law rule protecting the secrecy of jury deliberations meant that it could not inquire into any possible irregularity in the verdict. However, the Chief Justice, observing that some aspects of the secrecy rule might decrease public confidence in the justice system, pointedly observed that ‘any significant modification to the rule should be undertaken by the legislature or the ultimate appellate court’.
- Taylor v Owners — Strata Plan No 11564  NSWCA 55 examines a widow’s claim for damages under the Compensation for Relatives Act 1897 (NSW) for lost earnings after her husband was killed by the collapse of a shop awning. The NSW Court of Appeal ruled that the 19th Century statute which allowed survivors of a victim of negligence to sue for damages was subject to a 21st Century one responding to concerns about excessive tort claims, the Civil Liability Act 2002 (NSW), which places a cap on damages for economic loss.