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.The charter contract was made outside Australia between Korean companies, and was subject to English law, not Australian law. The communications alleged to have comprised the procurement of breach of contract occurred in Greece and Singapore. The only connection with China was that the ship was in Chinese waters when the alleged tort of procuring breach of contract occurred. In judgment, Hayne J said for the Court: ‘The appellant’s submissions, as developed in writing and orally, reveal insufficient prospects of demonstrating that the law which governed Daebo’s claim for damages for procuring breach of contract was the law of the People’s Republic of China as warrant the grant of special leave to appeal.’
Interesting – how often does the High Court revoke leave to appeal, I wonder? I’ve never heard of it happening before.
Probably the most important High Court precedent on the uniform evidence law is a ‘rescinded’ special leave application: Ellis v The Queen [2004] HCATrans 488. The issue was whether the common law on similar fact evidence applies under the new legislation. After special leave was granted from the major NSW decision to date, a bench of seven judges held an all day hearing. But, at the end, Gleeson CJ announced that special leave was rescinded (because of a technical deficiency in the appeal grounds, but that was accompanied by a refusal to permit new grounds to be added, based on substantive grounds.) Crucially, in a throwaway line at the end of Gleeson CJ’s announcement, he said: “We would add that we agree with the decision of Chief Justice Spigelman on the construction of the Evidence Act 1995 (NSW).” And that settled the matter.
It’s more common for a doubtful leave application to be referred to the full court, which will sometimes then refuse special leave after a full hearing. An example this year is Aristocrat Gambling, which is another similar fact evidence case.