News: Five new special leave grants bring the yearly total to 35

The High Court granted special leave in five new cases this month, one on the papers and four at Friday’s oral hearings. That brings the total up to 35 grants for the year, the same number as in 2014, and hence equal to the lowest annual number of grants in the past decade.

The five new cases that the Court will hear in (roughly) the first third of next year are:

  • Mann v Paterson Constructions Pty Ltd [2018] VSCA 231, which concerns how to calculate damages when a building contract is repudiated partway through. Victoria’s civil tribunal found that the owners repudiated a contract for two townhouses in Blackburn, after the construction ran overtime. The Court of Appeal unanimously held that the tribunal rightly awarded damages to the builders based largely on a quantity surveyor’s findings of the actual value of the builders’ works (minus money paid under the contract), rather than the (lower) price agreed under the contract. The Court rejected arguments that these arrangements are inappropriate under either private law or the Victorian statutory provision regulating variations to domestic building contracts.
  • Parsons and Anor & Masson [2018] FamCAFC 115, a case concerning the rights of the biological parent of an artificially conceived child. A Family Court judge barred a couple with two children, aged 9 and 10, from moving to New Zealand because of the effect the move would have on oldest child’s relationship with her biological father, who was the donor to her artificial conception before (according to the Full Court) the couple began their relationship. However, the full court of the Family Court ruled that the judge wrongly held that the biological father was the child’s parent, contrary to a state law on the status of children.
  • Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150, on an exception to the rule that litigants can’t claim costs for representing themselves (other than disbursements.) After she was hired by solicitors to represent their client in a family provision matter, a barrister successfully sued the solicitors over $26,000 in unpaid fees. A majority of the NSW Court of Appeal held that the exception, which covers self-representing lawyers suing for costs, applies to barristers (not just solicitors) and that she can claim costs for her own work in pursuing the costs claim (totalling $45,000) even though she also engaged a solicitor and senior counsel when litigating the costs claim.
  • Slea Pty Ltd & Ors v Connective Services Pty Ltd & Ors [2018] VSCA 180, which is part of dispute between shareholders in a mortgage aggregation company. The company, alleging that one shareholder had offered its shares to an outsider, launched proceedings to require the shareholder to first offer the shares to the remaining shareholders under the company constitution’s pre-emptive rights provision. In this proceeding, Victoria’s Court of Appeal unanimously stopped the company from continuing those proceedings, because its actions amounted to financially assisting the purchase of its own shares by the majority shareholders, contrary to an implied prohibition in the federal corporations statute.
  • Sangare v Northern Territory of Australia [2018] NTCA 10, concerning orders for costs after unsuccessful defamation actions. After the Northern Territory Department of Infrastructure refused to support a civil engineer’s visa application, he sued the Minister’s advisers for briefing him that the engineer had made false statements in an earlier protection visa application. The High Court refused the engineer special leave to appeal the Northern Territory Court of Appeal’s ruling that the advice fell within the defence of qualified privilege, but granted special leave to the Northern Territory’s cross-appeal against (presumably) the lower court’s refusal to order costs on the basis that the engineer would be ‘most unlikely’ to be able to pay them.
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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.

4 thoughts on “News: Five new special leave grants bring the yearly total to 35

    • What’s the rationale for the rule against self-represented litigants being unable to claim costs anyway? Besides discouraging self-represented litigants, I suppose?

  1. All self represented litigants who can establish financial loss which can be quantified and assessed should be able to recover their own costs not just lawyers.

    Justice for all. Chorley exception should be expanded not rejected. Too many good cases never get to Court and too many bad people including corporation get away with their unjust actions because they know that their victims will or may not be able to afford to pay a lawyer and do not qualify for pro bono assistance.

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