Glencore International AG v Commissioner of Taxation

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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Mann v Paterson Constructions Pty Ltd

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

Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth

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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Masson v Parsons

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

Australian Securities and Investments Commission v Kobelt

A majority of the High Court has dismissed an appeal from the Full Court of the Federal Court of Australia, rejecting the proposition that the respondent’s provision of “book-up” credit to a remote Indigenous community was unconscionable conduct in connection with financial services pursuant to s12CB(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (‘ASIC Act‘).

The “book-up” credit system

The respondent, Mr Kobelt, operated a general store in Mintabie, South Australia, called “Nobby’s Mintabie General Store”. The store sold second-hand cars, food, groceries and fuel. From 2008 onwards, Mr Kobelt supplied a form of credit to customers who were predominantly Indigenous Aṉangu people, most of whom lived in two remote communities, Mimili and Indulkana, within the Aṉangu Pitjantjatjara Yankunytjatjara Lands (‘APY Lands’). The customers were poor and had low levels of literacy and numeracy.

The credit system was called a “book-up” system. Payment for goods was deferred in whole or in part, subject to the customer supplying Mr Kobelt with the keycard and the PIN linked to the bank account into which the customer’s wages or Centrelink payments were credited. Very few transactions were documented carefully or at all. Mr Kobelt had no way of knowing what the balance of the customer’s account was. On the days when the customer had told him moneys were coming in, he would withdraw money in increments  until there were no funds left. He usually retained possession of the keycard until the debt was repaid. However, if the customer left APY lands, they were temporarily allowed to take their keycard on the condition that they would return it when they returned to APY lands. Most of the “book-up” credit was supplied in relation to the purchase of second-hand cars. Because the balance of their accounts was immediately removed when it came into the account, the customers could not buy groceries, but Mr Kobelt would let customers use a portion of what he had withdrawn during that particular pay period (up to 50%) to purchase groceries. Customers were therefore tied to using his store or other stores in Mintabie.  Continue reading

Rozenblit v Vainer & Anor

The High Court has allowed an appeal from the Victorian Court of Appeal with regard to an order for costs arising from litigation between former business partners about a transfer of shares in a tyre recycling company, VR Tek Global Pty Ltd. The case concerned a stay of proceedings where the appellant was impecunious and his action would effectively be terminated by a stay.

Mr Rozenblit brought proceedings in the Supreme Court of Victoria in which he alleged that the first respondent, Michael Vainer, had fraudulently, and without his knowledge or consent, transferred shares owned by him to the second respondent, Alexander Vainer (the first respondent’s father) and that the now-liquidated company’s assets were subject to a trust in his favour. After pleadings had closed, Mr Rozenblit sought leave to amend his statement of claim in three separate summonses. While leave to amend pursuant to the third summons was granted, the judge stayed Mr Rozenblit’s claim pursuant to r 63.03(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) until the interlocutory costs orders with regard to the first and second (unsuccessful) summonses were paid. Rule 63.03(3) provided:

“Where the Court makes an interlocutory order for costs, the Court may then or thereafter order that if the party liable to pay the costs fails to do so—

(a) if that party is the plaintiff, the proceeding shall be stayed or dismissed;

(b) if that party is a defendant, the defendant’s defence shall be struck out.”

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Collins v The Queen

The High Court has allowed an appeal by a man convicted of four counts of sexual offences, including rape, alleged to have been committed in January 2000. The complainant, then aged 19, answered a newspaper ad for a nanny to accompany the accused, then aged 61, his partner and child on a sailing trip, After an initial interview, the complainant returned for a further interview a week later. According to the complainant, at around 11pm on the yacht, she had a shower and was then shaved and raped by the accused. The prosecution case included comments she made the next morning to a friend and her mother the next morning, and the results of a police search warrant on the yacht two weeks later that found a razor with her DNA on it. At the trial, the accused formally admitted that he and the complainant had had sex on the yacht that evening.

At the trial in 2014, the complainant’s mother testified that, on the morning after the alleged rape, the complainant ‘phoned me to tell me that she had been raped’. In cross-examination, she was given a transcript of evidence that she she gave at the accused’s committal in 2007, where she had said that the complainant had told her that morning that ‘I think I have been raped’ and that ‘I had some wine and I felt funny and I don’t remember every – anything after a certain time’. Asked if she agreed that she gave that evidence, she said that she did. This part of the cross-examination concluded:

When you gave evidence back on the 21st of September 2007, was better than it is now? Yes. I would say so, yes.
And when you gave that evidence, that was the best recollection you could give to the court of what she said to you? Yes. I would say so, yes.

The trial judge directed the jury on this exchange as follows:

That inconsistency between what the mother told the committal court seven years ago and what she told today, depending upon your view of it, impacts, potentially upon the mother’s credibility and reliability. But what the mother said to the committal court seven years ago is not evidence of the fact that the complainant said those things to her. It’s not evidence of the truth of the contents of the statement if you can follow that logic. It impacts upon the particular witness’s credibility who’s giving the evidence.

On appeal, the Queensland Court of Appeal accepted that the trial judge’s direction was incorrect, but dismissed the appeal on the ground that the misdirection caused no substantial miscarriage of justice to the accused.

The High Court (Kiefel CJ & Bell, Keane & Gordon JJ, Edelman J concurring) first considered whether or not the trial judge misdirected the jury. Continue reading

Clone Pty Ltd v Players Pty Ltd (in liq, recs and mgrs apptd)

The High Court unanimously allowed an appeal from a decision of the Full Court of the South Australian Supreme Court regarding the power of a court to set aside one of its own perfected judgments on the basis of misconduct falling short of fraud. It was held that for the equitable power to set aside a judgment required actual fraud by the party who succeeded at trial, and such fraud had not been adequately proven or pleaded in this case. However, it was not necessary for the party seeking to set aside the judgment to exercise reasonable diligence to discover the fraud. Continue reading

BRF038 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on when discrimination amounts to persecution and procedural fairness guarantees under Nauruan refugee law. The appellant, a Sunni Muslim, fled Somalia in 2006, then stayed in Yemen, and finally arrived by boat at Christmas Island in September 2013. Australian authorities transferred him to the Republic of Nauru, where he sought refugee status. During his processing, he claimed that he fled Somalia due to war, trouble, hunger and starvation, and later fled Yemen due to racism and a lack of security (see details at [10]–[15]). The Nauruan Secretary refused his application for refugee status on the basis of scepticism about parts of his account (see [16]), and the Nauruan Refugee Status Review Tribunal and Nauruan Supreme Court both upheld that determination. On appeal to the High Court, the appellant contended that the Tribunal failed to accord him procedural fairness in reviewing the Secretary’s determination.

The Court (Keane, Nettle and Edelman JJ) allowed the appeal, ordering that the Tribunal’s decision be quashed and the matter remitted Continue reading