Malcolm Turnbull joins a select group: lawyers who have argued before Australia’s national court and then gone on to lead the nation. In 1988, the future Prime Minister capped his greatest success in his career as a barrister by successfully defending his lower court victories in the Spycatcher case in the High Court. The case famously concerned the UK government’s attempts to block the publication of a book by a former MI5 agent, Peter Wright. Having succeeded at trial in arguing that the book’s supposedly confidential contents was mostly already public overseas, Turnbull secured a majority ruling in the NSW Court of Appeal (consisting of two future High Court judges, Kirby P and McHugh JA) and then a unanimous victory in the High Court, which ruled that Australian courts applying the law of confidentiality ought not protect the security interests of an overseas government. Turnbull also succeeded as a junior barrister in an earlier case before the national court, when he defended Noel Chrichton-Browne in the Court of Disputed Returns.
A previous Prime Minister with a much more impressive record before the High Court is Robert Menzies, Australia’s longest serving leader. Continue reading
Last Friday, the High Court granted special leave in four cases. One is especially newsworthy: the return of the long-running dispute about the validity of various bank fees to the High Court. As Katy Barnett outlines here, the Court in 2012 held hat such fees are subject to the rule against contractual ‘penalties’ despite being expressed as contractual obligations, (rejecting a preliminary ruling by the trial judge in favour of the banks.) This year, the Full Court of the Federal Court nevertheless ruled that none of the fees were penalties. As Katy Barnett predicted, that ruling will now be considered by the High Court. But not all of the Court: the trial judge (who wrongly ruled that the fees weren’t subject to the rule, but also held that late credit card payment fees were penalties) was Gordon J, who has since joined the national court. That almost certainly means that she won’t participate in the High Court’s new consideration of the case.
The other three cases granted special leave include one from the Tasmanian courts, ending a six year drought of Tasmanian cases in the national court. The three cases are: Continue reading
The High Court has unanimously dismissed a cause removed from the New South Wales Court of Appeal challenging the newly inserted pt 13 in sch 4 of the Independent Commission against Corruption Act 1988 (NSW), which purports to validate ICAC’s decisions regarding corrupt conduct following the High Court’s decision earlier Continue reading
The High Court has unanimously dismissed an appeal from a decision of the Full Federal Court relating to novelty and the inventive step in s 7 of the Patents Act 1990 (Cth). Astrazeneca holds the patent relating to a method of treating high blood cholesterol using a compound called rosuvastatin, marketed under the drug name Crestor. The respondent drug companies produce and sell Continue reading
The High Court has unanimously allowed an appeal from a decision of the New South Wales Court of Appeal relating to the tort of negligence and inferential fact-finding. Fuller-Lyons, a cognitively-impaired minor, was severely injured after he fell from a train moving at about 100kph. The primary judge found that it was likely Continue reading
By Paul Collins
Korda Case Page
In a famous literary allusion, du Parcq LJ in Re Schebsman  Ch 83 noted that an intention to create a trust can possibly be created by unguarded language, as in Molière’s Monsieur Jourdain who talked prose without knowing it, although he qualified this by saying that ‘unless an intention to create a trust is clearly to be collected from the language used and the circumstances of the case, I think that the court ought not to be astute to discover indications of such an intention’. In Jessup v Queensland Housing Commission  QCA 312, McPherson JA added at  that if the purpose of the settlor was to inspire the poetry of trusts, it was odd that it chose to express itself in common law prose.
This very controversy often arises in the rather prosaic event of insolvency where a party contends that certain assets are not available to creditors because beneficial ownership is vested in a party other than the debtor by reason of a trust. Thus in Korda v Australian Executor Trustees (SA) Ltd  HCA 6, the High Court of Australia examined the question whether a trust could be inferred from a contractual relationship. Continue reading
In his decision yesterday rejecting an application to recuse himself from the Trade Union Royal Commission on the grounds of apprehended bias, Commissioner Dyson Heydon considered whether a reasonable bystander would think (contrary to Heydon’s own assertion) that Heydon would read all of his email attachments (including one describing the nature of the function he had agreed to speak at.) The ACTU’s counsel, Robert Newlinds SC, argued:
People don’t get appointed to the High Court of Australia unless they are considered truly brilliant lawyers, and what the truly brilliant lawyers have over and above truly ordinary lawyers, they have that special ability to absorb incredibly quickly and distil facts, and an ability to retain facts so absorbed and distilled, so as to fit them into the wider picture of the particular legal problem at hand…. So, the reasonable hypothetical bystander is going to think you’ve read this email.
But the Commissioner countered that the reasonable bystander would have a quite different view of former High Court judges’ reading habits: Continue reading