Monthly Archives: October 2013
Comcare v PVYW
Diehm v DPP (Nauru)
Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd
Google Searches and Misleading Conduct: Google Inc v Australian Competition and Consumer Commission
By Sarah Mulcahy and Jeannie Marie Paterson
In Google Inc v Australian Competition and Consumer Commission [2013] HCA 1 the High Court held that Google had not engaged in misleading or deceptive conduct contrary to s 52 Trade Practices Act 1974 (Cth) (TPA) (now s 18 of the Australian Consumer Law (ACL)) in publishing ‘sponsored links’ in response to web page searches. The Australian Competition and Consumer Commission (ACCC) argued that Google engaged in misleading and deceptive conduct because its program allowed advertisers to enter the names of competitors as keywords so that a ‘sponsored link’ to the advertiser’s company would arise when the competitor’s name was entered into the search engine. Although the ‘sponsored links’ by the advertisers were misleading or deceptive, Google was held not to be responsible for the misleading or deceptive conduct because it did not author the ‘sponsored links’, nor did it endorse the misleading representations of the advertisers.
However, the decision does not relieve those who control or administer internet sites of liability for misleading or deceptive information posted on those sites. In this case, the links were generated by a computer algorithm over which Google had limited control. But in other situations where an administrator has greater control, it is possible that the administrator may still be liable for the misleading or deceptive conduct of posters or advertisers. Continue reading
News: The ACT Signals It May Dispute the Commonwealth’s Claims about Marriage
Last Friday saw the first ‘directions hearing’ in the Commonwealth’s High Court challenge to the ACT’s recently enacted marriage equality law. While the media focused on French CJ’s indication that the final court hearing — not, as some media suggested, the judgment — may occur in early December, the directions hearing also revealed that the Court may need to resolve some disputes about the role of Australian law in giving effect to the social institution of marriage.
The Commonwealth’s attack on the ACT marriage law centres on its argument that one object of the federal Marriage Act is to ‘address’ a ‘public interest’ in the ‘uniformity of marriage law throughout Australia’. In its statement of claim, it offered six propositions in support of that argument: Continue reading
News: Sex, No Specified Sex, and Same Sex: The ACT’s ‘Marriage Equality Laws’ and Norrie’s Case
In all the excitement within segments of the community over the passage of the ACT’s Marriage Equality (Same Sex) Act 2013 (ACT) there has been little critical consideration of the implications of the final changes made to the Bill that were introduced purportedly in order to further protect the laws against a High Court challenge by the Commonwealth government. The implications of those changes will be brought into view when the High Court decides whether to grant leave to appeal Norrie’s case (reported about here) on 8 November 2013. Continue reading
News: Commonwealth’s Same-Sex Marriage Challenge Submissions Now Online
Several media outlets have reported this morning that the Commonwealth yesterday lodged its writ of summons to challenge the validity of the Marriage Equality (Same Sex) Act 2013 (ACT) (ACT Marriage Act), which was passed by the ACT Parliament on Tuesday. The Act as passed is not yet available on the ACT Legislation Registry, but the text of the Bill as originally introduced can be accessed here). The full text of the writ and the Commonwealth’s submissions and related documents for the first directions hearing — which is reportedly scheduled for tomorrow — can be accessed here.
The Commonwealth seeks a declaration by the High Court that the ACT Marriage Act is invalid or, in the alternative, is void. At the first directions hearing, the Commonwealth will submit that the matter should not be remitted to a lower court on the basis that it is a matter of public importance. At a later directions hearing, the Commonwealth will seek a hearing before the Full Court at the earliest possible date. 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
News: Qld Premier: ‘New laws may be overturned by the High Court. It doesn’t matter.’
Last week saw the introduction and speedy passing of some extraordinary Bills in the Queensland parliament. A trio of laws targeting criminal associations follow a widely reported brawl between two bikie gangs outside a Broadbeach restaurant in late September, while a further law targeting sex offenders comes as the Attorney-General appeals against a ruling that same day permitting the release into the community of Robert Fardon, the first man detained as a dangerous sex offender following the expiry of his sentence. Foreshadowing the new bikie gang laws last week, Premier Campbell Newman reportedly told the media:
“We know that some of these things will be challenged… We know that some may be overturned. It doesn’t matter. We are going to continue to try again. There are many mechanisms that we are going to use.”
Indeed, High Court judgments both past and future loom over each law. 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: The High Court’s video debut
A month ago, the High Court announced that it would enter the video-publishing business, uploading videos of its Canberra hearings (other than special leave hearings) to its website. On Monday, the Court uploaded its first four videos to a new ‘recent AV recordings‘ entry under its webpage‘s ‘cases’ menu. The Court’s prediction that the recordings’ availability would be ‘initially likely to be a few business days after hearings’ was too ambitious; it took eight business days for video for the first eligible hearing (BCM v R, including the bonus issuing of judgments in Bugmy and Munda) to be uploaded. However, the most recent hearing of the session (Karpany v Dietman) took just three business days, confirming its prediction that ‘[t]his delay is likely to be reduced as Court experience grows.’
Interestingly, the new page sets out, for the first time, the Court’s ‘terms of use’, which indicate that none of its videos will be going viral anytime soon: Continue reading
Freedom to Preach in Rundle Mall: Attorney-General (SA) v Corporation of the City of Adelaide (‘Corneloup’s Case’)
By Professor Adrienne Stone
Attorney-General (SA) v Corporation of the City of Adelaide Case Page
Two weeks ago, the Federal Court dismissed a challenge by members of Occupy Melbourne against the enforcement of bans on camping and advertising in inner Melbourne’s squares and gardens. Justice North relied in large part on a High Court ruling from March, concerning Samuel Corneloup and his brother Caleb, members of a street church that regularly engaged in preaching on the Rundle Mall in Adelaide. Their noisy preaching gave rise to one of two important freedom of political communication cases in the High Court this year: Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3 (‘Corneloup’s Case’). (The other, Monis v The Queen [2013] HCA 4, is discussed here.)
Adelaide’s preaching ban
Preaching on the Adelaide mall (like other ‘roads’) is subject to Council By-Law No 4 which (subject to exceptions for election campaigning) provides that ‘[n]o person shall without permission on any road
2.3 preach, canvass, harangue, tout for business or conduct any survey or opinion poll …
2.8 give out or distribute to any bystander or passer-by any handbill, book, notice, or other printed matter.
Disputes arose between the Corneloup brothers and the Adelaide City Council over the Corneloups’ preaching that resulted, first, in the conviction of Samuel Corneloup in the Magistrates Court of South Australia in 2010 and, second, in separate proceedings brought by the Council to restrain the Corneloups and others from preaching on the Rundle Mall. Continue reading
News: Latest special leave grants favour the Top End
At hearings in Sydney and Canberra today, the High Court granted special leave to four new cases (in contrast to six new cases at each its previous two sessions.) Two of the cases – both particularly interesting ones, in my view – are appeals from the Northern Territory Supreme Court. It’s been over three-and-a-half years since the High Court last granted leave to a Northern Territory case. The Court typically averages a little under one case a year from that jurisdiction.
The four special leave grants are for appeals from the following decisions: Continue reading
Magaming v The Queen
Lee v New South Wales Crime Commission
News: Initial reactions to Bugmy
The High Court today released its highly-anticipated judgment in Bugmy v The Queen,[2013] HCA 37, previewed here, examining the so-called Fernando principles concerning the sentencing of indigenous Australians. The defendant, William David Bugmy, succeeded in his appeal. However, as is often the case with High Court judgments, the true significance of the case is harder to parse.The Court didn’t restore Bugmy’s original (lower) sentence, but rather told the NSW Court of Criminal Appeal to reconsider the Crown’s criticism of that sentence afresh. More importantly, the Court rejected both the Court of Criminal Appeal’s interpretation of the Fernando principles and a number of suggested refinements of those principles proposed by Bugmy.
The case has generated interest online, captured in discussions on social media. Immediate reactions on Twitter fell into two camps. Continue reading
Munda v Western Australia
Justice Gummow Reflects on His Time on the High Court
By Martin Clark
On Friday 13 September 2013 I was lucky enough to spend an hour interviewing Professor William Gummow AC about his time on the High Court of Australia (1995–2012).
Professor William Gummow AC retired in October 2012 from the High Court after 17 years on the bench. Prior to that he sat on the Federal Court for ten years, and before that had been an influential and highly-regarded member of the Sydney Bar, a partner at Allen Allen and Hemsley, and also lectured part-time at the Sydney Law School from 1965 until 1995. He is now Professor of Law at the Sydney Law School and the Australian National University.
In this extensive interview, Professor Gummow discusses a wide range of topics, including the similarities and differences between the judges and processes of the High Court of Australia and other apex courts around the world, his views on advocacy before the High Court, and changes in the legal profession. He also offers his thoughts on the enduring importance of several great Australian judges, including Sir Owen Dixon, Sir Victor Windeyer, Sir Garfield Barwick and Sir Nigel Bowen. Continue reading
Bugmy v The Queen
News: Negligence, public misfeasance and the conduct of PrimeSafe
Over the weekend ABC’s Landline broadcast a story about the circumstances leading to the closure of a rural Victorian abattoir, in particular the role of the State authority PrimeSafe and the economic harm caused by the closure to small agribusinesses in the surrounding district. The premise for closing the abattoir was that animals were being treated cruelly. However, cruelty was never proven against the business. I was asked to offer a view about the potential causes of action that the Giles family that owned the abattoir might have against PrimeSafe to recover losses arising from their lost business.
I note (at about 40 minutes) that there are two possible causes of action available to the owners of the abattoir business: negligence and public misfeasance. Continue reading