News: Three new grants of special leave at year’s end

In its final scheduled sitting day for the year, the High Court granted a modest three applications for special leave to appeal lower court decisions involving the dismissal of a senior bank manager, the wrongful disclosure of a compelled examination and a lover’s promise about a burnt-down cottage:

  • Commonwealth Bank of Australia v Barker [2013] FCAFC 83 involves a dispute about what can be implied into an employment contract. Pursuant to the written contract of a senior bank manager, the bank dismissed the manager with four week’s notice after his position became redundant. The manager’s claim that his employers policies on redundancy ¬†were incorporated into his contract was dismissed. However, the trial judge and a majority of the Full Court of the Federal Court accepted an alternative argument that the contract contained an implied term of mutual trust and confidence, which the bank had breached by failing to take positive steps to redeploy the manager. The Full Court upheld the trial judge’s award of $317,000 for the lost opportunity of redeployment within the bank.
  • Lee Do Young v Regina; Lee Seong Won v Regina [2013] NSWCCA 68 is an appeal against convictions by two defendants, one of whom recently failed in a High Court challenge two months ago to an order requiring him to answer the NSW Crime Commissioner’s questions while a money laundering charge was pending. In this case, the defendants challenged their earlier convictions for firearms and drug offences on the ground that a transcript of earlier compelled questioning was given to their prosecutor contrary to a non-disclosure order by the Supreme Court. The NSW Court of Criminal Appeal held that the disclosure did not prejudice the fairness of their trial and also dismissed arguments criticising the judge’s directions to the jury about the evidence against them.
  • Van Dyke v Sidhu [2013] NSWCA 198 concerns the afterrmath of an affair between one of the joint owners of a cottage on a large homestead and one of the cottage’s joint tenants (who became the sole tenant after the affair was discovered.) After the cottage burnt down and the affair ended, the tenant claimed that she had an equitable interest in the cottage’s land and insurance proceeds as a result of an earlier promise made by her lover that he would subdivide the homestead and transfer the cottage to her, a promise she said she relied upon when deciding not to seek alternative accommodation, full-time employment or a property settlement with her ex-husband. The NSW Court of Appeal held that it was objectively reasonable for her to rely on the promise (despite the precondition of a subdivision, which never eventuated), that she did rely on it (despite equivocal answers she gave in court about whether she would have remained on the property for reasons of love, regardless of any promise) and that it was unconscionable for her former lover to repudiate his promise when the affair ended.
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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.