By Adriana Orifici
The High Court has granted the Commonwealth Bank leave to appeal the decision of a majority of the Full Court of the Federal Court in Commonwealth Bank of Australia v Barker  FCAFC 83 (Jacobson and Lander JJ, Jessup J dissenting), which recognised that an implied term of mutual trust and confidence (the Implied Term) exists in employment contracts in Australia. In the special leave application, the issues in dispute were described as giving rise to a ‘test case’.
In Australian employment contracts, terms may be implied in fact or in law.
The Implied Term is implied in law and requires that a party to an employment contract will not, without reasonable cause, conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Continue reading
The Supreme Court of Canada, that country’s equivalent to Australia’s High Court, held a hearing this week on the interpretation of its own constituting statute, the Supreme Court Act. Or, to be more precise, some of its judges held that hearing. One of its judges, Nadon J, who was sworn in to the national court last October, did not sit – and, indeed, has never sat – because it is the legality of his appointment that his remaining colleagues must determine. One newspaper has likened the hearing to a tribal council on television’s Survivor.
The legal issue for decision is the statutory qualifications for appointment to the national court. Continue reading
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  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