Monthly Archives: November 2019

Glencore International AG v Commissioner of Taxation

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The High Court unanimously allowed a demurrer and dismissed a proceeding by the plaintiffs whereby the plaintiffs, Glencore International AG (‘Glencore’) sought to invoke the Court’s jurisdiction under s 75(iii) of the Constitution to compel the defendants, the Australian Taxation Office (‘ATO’) to return certain documents (the ‘Glencore documents’) to them and to restrain the defendants’ further use of them.

The Glencore documents were created for the sole or dominant purpose of legal advice to Glencore with respect to the corporate restructure of Australian entities within the Glencore group. The advice was provided by Appleby (Bermuda) Limited (“Appleby”), an incorporated law practice in Bermuda. The Managing Partner of Appleby said that the Glencore documents were amongst documents colloquially described as the “Paradise Papers” which were stolen from Appleby’s electronic file management systems and provided to the International Consortium of Investigative Journalists. Glencore said that the ATO had obtained copies of the Paradise Papers, asserted that the Glencore documents are subject to legal professional privilege and sought an injunction requiring the ATO to return them and to provide an undertaking that they would not be referred to or relied upon. The ATO did not accede to those requests. Instead it argued that there was no cause of action entitling Glencore to relief, or that they were required to retain and use the documents for the purposes of s 166 of the Income Tax Assessment Act 1936 (Cth) (‘ITAA36’), which provides that the Commissioner must make an assessment of the taxpayer’s returns from the taxpayer’s returns “and from any other information in the Commissioner’s possession.”

The High Court held at [5] that it was clear that the Glencore documents were the subject of legal professional privilege, and that documents which were subject to legal professional privilege were exempt from production by court process or statutory compulsion. However, a declaration to this effect would not assist Glencore, because once the documents were in the ATO’s possession, they could be used in connection with the statutory powers under the ITAA36. Glencore would have to identify a juridical basis for an injunction to restrain the ATO’s use.

Continue reading →

Mann v Paterson Constructions Pty Ltd

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Wayne Jocic, ‘A tale of two townhouses and quantum meruit: Mann v Paterson Constructions Pty Ltd’ (16 October 2018)

A majority of the High Court has allowed an appeal from the Victorian Court of Appeal, holding that a builder was entitled to sue for restitution upon a quantum meruit in relation to a terminated building contract insofar as that stage of the contract was not completed, but otherwise, a quantum meruit could not be claimed where the stage of the contract was completed or where it was an oral variation governed by statutory notice requirements.

Facts

The appellants, the Manns, engaged the respondents, Paterson Constructions Pty Ltd (‘Paterson’) to construct two double-storey townhouses in Blackburn, Victoria and executed a contract which was expressed to be prepared in accordance with the Domestic Building Contracts Act 1995 (Vic). The contract provided for progress payments to be made at certain intervals specified in the Appendix of the contract. The Manns orally requested 42 variations to the townhouses during the period of construction (11 to Unit One and 31 in relation to Unit Two). Paterson carried out the variations and did not give written notice according to the process under the contract and s 38 of the Domestic Building Contracts Act for owner-initiated variations. At the time that Unit One was handed over, Paterson told the Manns that there was around $48,000 to be paid for the oral variations, and the Manns refused to pay.  Paterson then refused to continue carrying out construction until the variation amount was paid. In the event, the Manns alleged that Paterson had repudiated the contract, and said that they accepted the repudiation. Paterson denied that it repudiated the contract, but said that the Manns’ conduct was in itself repudiatory, and that it accepted the repudiation.

Paterson then commenced proceedings in the Victorian Civil and Administrative Tribunal (‘VCAT’) to recover damages for breach of contract or restitution on the basis of a quantum meruit. VCAT awarded a quantum meruit reflecting the fair value of the work conferred on the Manns. The Manns appealed to the Supreme Court of Victoria, which held that the builder was entitled to obtain a quantum meruit. A further appeal by the Manns to the Victorian Court of Appeal was dismissed. Continue reading →

Opinion: The academy and the courts – Speech by Kiefel CJ

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On 31 October 2019, Kiefel CJ gave a speech concerning academics and the court. As an academic who has recently conducted a small study of who was cited by the High Court between 2015 and 2017, I welcome Kiefel CJ’s speech warmly. In her introduction she said that academic writing which is directed to judges, to the profession and to the public is a ‘valuable resource for judges’, and then continued, ‘[a]cademic lawyers are well placed to provide commentary both in terms of their focus on particular topics and the time available to them. Judges are under special constraints and therefore appreciate academic literature which is on point and useful.’

I was also very heartened by the Chief Justice’s comments on judges who use academic material without acknowledging it. She said, ‘I would like to think that this is a practice of the past and that these days acknowledgement is given where it is due’. I hope that her recommendation is taken under advisement. I also agree with Her Honour that it is more complex when a work has been generally (but not specifically) helpful, or confirmed an opposite view. Moreover, it is important to note that the role of the courts is not to recognise academic work, and that in fact, there is no need to cite academic work at all for a judgment to be authoritative. As the Chief Justice says, the main role of a judgment is to give reasons for the resolution of a dispute between parties: no less, no more. If academic work helps with the resolution of that dispute, then it should be acknowledged, but if it does not, there is no need to divert into it. And it is certainly not the role of judges to elucidate legal theories unless they are relevant to the case at hand. Continue reading →

News: The Court refers Pell to a larger bench

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This week, one of the most-watched criminal cases in the nation’s history reached the apex court, albeit in a somewhat confusing way. As reported by journalists on Monday and confirmed on the Court’s webpage late on Tuesday, George Pell’s application for special leave to appeal from the Victorian Court of Appeal’s dismissal of his appeal against a jury’s verdict was listed for orders on Wednesday morning. In line with the Court’s current practice of determining most special leave applications ‘on the papers’, there was no oral hearing. However, while the other twenty or so matters listed for orders that morning had their applications dismissed without comment, Gordon J made the following statement in relation to Pell:

In this application, Justice Edelman and I order that the application for special leave to appeal to this Court from the judgment and orders of the Court of Appeal of the Supreme Court of Victoria given and made on 21 August 2019 be referred to a Full Court of this Court for argument as on an appeal. The parties will be made aware of the directions necessary for undertaking that hearing.

The media (understandably, in my view) initially reported that the High Court had agreed to hear Pell’s appeal. It was only when the transcript was published online that it became clear that something different had happened.

Justice Gordon and Edelman’s order was to have Pell’s application for special leave heard before an appeal-sized bench (either five or seven justices), rather than the usual special-leave-application-sized bench (two or three justices.) Continue reading →

News: The Court proposes new rules about Aboriginal societies

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An exception to the Court’s generally speedy resolution of cases before it in recent years is Daniel Love’s and Brendan Thoms’s challenges to their proposed deportations to Papua New Guinea and New Zealand. The pair, who are not Australian citizens but who each have an Australian parent, had their visas cancelled after they were convicted of (separate) harmful assaults in 2018. They argue that, because each identifies and is recognised as ‘an Aboriginal man’ (respectively of the Kamilaroi and Gunggari people), they fall outside of the federal parliament’s power to make laws ‘with respect to naturalisation and aliens’ and, accordingly, the scope of a federal statute requiring their removal from Australia. After commencing their actions respectively in September and December last year, they had cases ‘stated’ before the Court in January and March this year and were the subject of a joint Full Court hearing in May. But, six months later, the Court is yet to rule on their cases and instead has scheduled a further hearing in December. Until last Friday, all the public knew was that, three weeks ago, Love and Thoms issued fresh notices as required by federal law to alert Australia’s Attorneys-General of a ‘constitutional matter’.

Last Friday, we learnt that the Court wrote to the parties a month ago asking for submissions on a series of propositions that, if correct, would prevent deportation of, not only Love and Thoms, but anyone else who ‘an Aboriginal society has determined to be one of its members’. Continue reading →