Productive court takes on two new appeals

This past fortnight, the Court heard two constitutional challenges (to NSW’s consorting offence and a Queensland indefinite detention statute) and two potential landmark appeals (on the admissibility of expert evidence and tort liability for defective building), and also published five judgments (including rulings on the validity of the PNG solution, the chaplaincy program and the cap on protection visas). As well, the Court made some quieter rulings, revoking special leave in a technical case about refugee appeals and allowing a criminal appeal about DNA transfer.┬áTo cap off its busy fortnight, the Court also took on two new private law appeals from the following decisions of the NSW Court of Appeal:

Gerard Cassegrain & Co Pty Limited v Felicity Cassegrain [2013] NSWCA 453 is one of a series of decisions in a dispute amongst six siblings concerning family companies, including a winery. Before his death in 1993, Gerard Cassegrain received a settlement in a dispute with CSIRO and placed $4.25 million of the proceeds in a loan account for his second-eldest child, Claude, as part of a tax arrangement. In a separate ruling (from which the High Court yesterday refused leave to appeal), the NSW Court of Appeal held that Claude breached his duty to the family company when he used the account for personal purposes, including to purchase a dairy farm, since transferred to his wife. The High Court will now hear an appeal from the Court of Appeal’s ruling that the company could now seek to recover the dairy farm from Claude’s wife, Felicity (despite the usual rule that registered property titles are ‘indefeasible’) on the basis that either her agency or joint tenant relationship with Claude meant that the title could be defeated by Claude’s ‘fraud’ and that Felicity could not revisit findings made in 1998 by the federal court against Claude in earlier proceedings.

McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 concerns tragic events 10 years ago. On 20 July 2004, William Pettrigrove was compulsorily detained at the Manning Base Hospital in Taree after his friend Stephen Rose became concerned about his mental state. The next day, following a psychiatric assessment, Pettigrove was released into Rose’s care, so that he could be driven to Pettigrove’s mother in Victoria. However, Pettigrove strangled Rose en route and later suicided. In this decision, the NSW Court of Appeal held that Rose’s mother and sister could sue the hospital for damages for psychiatric injury resulting from these events, ruling that the hospital had a duty of care to Rose, that the hospital was negligent in releasing Pettigrove, and that the action was not prevented by provisions in NSW’s Civil Liability Act on professional negligence, breach of statutory duty and causation.

This entry was posted in News, Opinions by Jeremy Gans. Bookmark the permalink.

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.