The High Court has unanimously dismissed an appeal against the Supreme Court of the Australian Capital Territory, holding that the appellant, Mr Lewis, was not entitled to substantial damages for wrongful imprisonment because, while the decision to return him to imprisonment by the ACT’s Sentencing Administration Board had been invalid, he would otherwise have been lawfully returned to imprisonment in any case.

Facts

Mr Lewis was sentenced to a term of 12 months’ imprisonment for recklessly or intentionally inflicting actual bodily harm on another by smashing a glass into the face of another man during a fight.

He was sentenced to periodic detention on weekends. He failed on four times to attend periodic detention, and was notified by the Sentence Administration Board of an inquiry, but he did not read any of the letters he was sent in regard to it, and chose not to attend it. The Board cancelled Mr Lewis’ periodic detention, as it was required to do. There was no discretion, and the cancellation was mandatory once an offender had failed twice to attend periodic detention. (The legislation, the Crimes (Sentence Administration) Act 2005 (ACT), is described in detail at [7] – [12] of Kiefel CJ and Keane J’s judgment and [53] – [58] of Gordon J’s judgment). Once periodic detention had been cancelled the offender was obliged to serve out the remainder of his sentence by way of full-time detention. The Board then decided it had been inquorate during the first inquiry, and invited Mr Lewis to make submissions at a second inquiry. Again, Mr Lewis failed to attend.

Mr Lewis was then arrested and imprisoned for 82 days. In separate proceedings, Mr Lewis successfully challenged the cancellation of his periodic detention on the basis that he had been denied procedural fairness by the Board, and thus the decision of the Board was invalid. The trial judge found that the Board had attempted to inform Mr Lewis of the hearings, but he could not be entirely sure, and consequently, procedural fairness had not been accorded (this decision was described by the Court of Appeal of the Australian Capital Territory as “illogical”).

Prior to his challenge to the Board’s determination, Mr Lewis was granted bail pending the hearing of that challenge and was never required to serve his initial sentence of periodic detention. Mr Lewis sought damages from the Australian Capital Territory for false imprisonment for the 82 days of imprisonment that he had served before being granted bail.

The trial judge assessed damages for a false imprisonment of this nature at $100,000, but awarded only nominal damages because, even if Mr Lewis had not been denied procedural fairness, the periodic detention order would have been cancelled and Mr Lewis would have been imprisoned full-time. The Full Court of the Supreme Court of the Australian Capital Territory upheld the trial judge’s decision. Mr Lewis appealed to the High Court of Australia.

Mr Lewis attempted to argue that he was entitled to substantial damages from the Australian Capital Territory on three bases:

1. That he was entitled to damages for infringement of his right to liberty because the tort of false imprisonment had been committed;
2. That he was entitled to “vindicatory damages” to reflect the infringement of his human right to liberty; and
3. That he was entitled to compensatory damages for the non-pecuniary losses he sustained during the 82 days.

He failed on all counts. Kiefel CJ and Keane J delivered a joint judgment, and Gageler, Gordon and Edelman JJ all delivered separate judgments.

As Edelman J notes at [137], Mr Lewis’s arguments with regard to damages for infringement of the right to liberty and with regard to “vindicatory damages” were functionally identical, because they both sought substantial damages for infringement of the right to liberty.

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The High Court has unanimously allowed an appeal against part of a judgment of the Full Federal Court of Australia, holding that in a case where a defendant had terminated an agreement by deceptive means, the balance of probabilities showed that the defendant would not have used lawful means. The burden of proof thus shifted to the defendant to show that it would in fact have used lawful means, which it failed to establish.

Facts

The case involved Securency Pty Ltd (now called CCL Secure Ltd), a company incorporated as part of a 50-50 joint venture between the Reserve Bank of Australia and Innovia Films Ltd, which produced polymer banknotes. They sought to expand the market for polymer banknotes to other countries. They entered into an agreement with Dr Benoy Berry to assist them in their efforts to bring polymer banknotes to Nigeria. Dr Berry and his company GSC entered into an agreement to act as Securency’s agent in negotiations with the Nigerian government. A term of that agency agreement was that Dr Berry and GSC would be entitled to a 15% commission on the net invoiced sales of opacified polymer to the Nigerian government. The agency agreement was to be automatically renewed every two years, unless terminated in accordance with the agreement. Continue reading →

The High Court of Australia unanimously allowed an appeal from the New South Wales Court of Appeal, holding that damages for disappointment and distress for breach of a holiday cruise tour contract were not precluded as damages for “personal injury” by s 16(1) of the Civil Liability Act 2002 (NSW) (‘CLA’).

Facts

Mr Moore and his wife booked a cruise of grand waterways of Europe with Scenic Tours Pty Ltd (‘Scenic’). The cruise was to be on a luxury ship called the Scenic Jewel, and suited the Moores because Mr Moore had undergone spinal surgery and needed to spend significant time sitting down. He chose this tour because he did not want to have to keep packing and unpacking. He gave evidence that he booked the tour 12 months in advance, and used his ‘life’s savings’ to pay for it. The tour commenced in Paris on 31 May 2013, but the river cruise portion along the Rhine, Main and Danube Rivers was scheduled to depart from Amsterdam on 3 June 2013, and to conclude two weeks later in Budapest. However, the Rhine and Main rivers flooded, and the Moores only had three days of cruising. They spent ten days on a bus, and had to change ship at least twice. The cruise fell far short of the Moores’ expectations.

The Moores were lead plaintiffs in representative proceedings for approximately 1,500 disappointed plaintiffs who had booked cruises with Scenic that had been scheduled to depart between 19 May 2013 and 12 June 2013, and had been affected by flooding. Continue reading →

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.

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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 →

The High Court unanimously dismissed an appeal from the Victorian Court of Appeal in relation whether the assets of an insolvent corporate trustee should be distributed to employees or trade creditors. It held that the priority regime contained in s 433 of the Corporations Act 2001 (Cth) applied to the trustee of a trading trust, and thus employees had priority.

Facts and history

Amerind Pty Ltd (“Amerind”) was the trustee for a trading trust, the Panel Veneer Processes Trading Trust, and traded solely in that capacity. The Bendigo and Adelaide Bank (“the Bank”) appointed receivers (“the Receivers”) after Amerind defaulted on bank facilities on the same day that the sole director of Amerind appointed Administrators. The Bank were the holders of a “circulating security interest” registered under the Personal Property Securities Act.

After the creditors resolved that Amerind be wound up in insolvency, the Administrators were appointed as joint and several liquidators of Amerind. By this time, the Receivers had realised most of Amerind’s assets and were in a position to retire. After all of the Bank’s secured debt had been discharged, the Receivers had a receivership surplus of $1,619,018. Two competing parties sought to access that surplus before the High Court:

1. Carter Holt Harvey Woodproducts Australia Pty Ltd (“Carter Holt”), a trade creditor; and
2. The Commonwealth of Australia (in the shoes of employees).

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The High Court unanimously allowed an appeal from the Full Court of the Federal Court of Australia, holding that the appellant was the legal parent of a child conceived via artificial insemination. In so doing, they found that s 79(1) of the Judiciary Act 1903 (Cth) did not pick up and apply a State Act which ruled that the appellant was “presumed” not to be a parent, when the relevant Federal Act made no provision as to the appellant’s status as a parent and evinced an intention not to limit the categories in which someone could be found to be a parent in the context of artificial insemination. To the extent that various State Acts were inconsistent, they were inoperative by reason of s 109 of the Constitution (Cth).

Facts

All parties are identified by pseudonyms. The appellant, Mr Masson had been friends with Susan Parsons for many years. In 2006 Susan Parsons conceived a child by artificially inseminating herself using Mr Masson’s donor sperm. At the time of conception, Mr Masson believed that he was fathering the child, and that he would care for and support the child. When Susan Parsons gave birth to a daughter, Mr Masson was listed on the birth certificate as the father. The child lived with Susan and her partner Margaret Parsons (who later married in New Zealand) but had a close relationship with Mr Masson and saw him frequently. He had a continuing role in the child’s financial support, health, education and general welfare.

In 2015 the Parsons decided to move to New Zealand, as Susan was originally from New Zealand and wanted to be closer to family. Mr Masson filed for a parenting order pursuant to Part VII of the Family Law Act 1975 (Cth), in which he sought shared responsibility for the child between himself and Susan Parsons, a restriction upon the Parsons from moving to New Zealand, a provision for certain rights in terms of access, and the placing of certain conditions on overseas travel and communication. The question was whether Mr Masson qualified as the legal parent of the child for the purposes of the Family Law Act. Continue reading →