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:
- CGU Insurance Ltd v Blakeley & Ors  VSCA 153, a decision on whether a court hearing a civil proceeding can force the defendant’s insurer to become a party to the proceeding. The defendants, who were being sued for $22M for allegedly incurring debts for an insolvent road construction company they were managing, went bankrupt after being told by their insurer that they were not covered for those proceedings. Victoria’s Court of Appeal upheld the request of the plaintiff (the insolvent company’s liquidator) to join that insurer to the proceeding so that the insurance issue could be resolved alongside issues about the defendants’ liability (even though the defendants had no intention of launching a claim against their insurer.)
- Stewart, Vickery and Stewart v Ackland  ACTCA 1, a decision on whether a plaintiff engaged in a recreational activity can recoverer damages for another’s negligence. The plaintiff was a UNE Arts/Law student on a social trip who became a tetraplegic after attempting a backflip on a jumping pillow. The ACT Court of Appeal unanimously upheld the trial judge’s ruling that the owners of the pillow should pay over $4M to the student for failing to warn him not to attempt a backflip. A majority agreed with the trial judge that, although the backflip was a dangerous recreational activity for the purposes of NSW’s Civil Liability Act, the claim was outside of the Act’s ban on claims for negligence by people engaged in that activity, because the risk of serious injury was not ‘obvious’.
- West Coast Council v Coverdale (No 2)  TASFC 1, where Tasmania’s Supreme Court split on the meaning of ‘land’. West Coast Council argued that the defendant, Tasmania’s Valuer-General, should issue a valuation for eight portions of Macquarie Harbour that are the subject of marine leases, so that the Council could levy rates. The Chief Justice (at trial) and one appeal judge held that Tasmania’s local government statute did not cover seabeds, but the remaining two appeal judges held that the Harbour fell within the broader definition of land set out in other statutes, including the state’s Acts Interpretation Act, and hence could be subject to council rates.