Noticeboard: High Court Notes and Federal Court Notes: November 2004

From Advocatespedia, ASSN: 27077
Jump to navigation Jump to search

NOTICEBOARD High Court Notes: November 2004 Prepared for the Law Council of Australia and its Constituents by Thomas Hurley, Barrister, Vic., NSW, ACT(Editor, Victorian Administrative Reports) Constitutional law - Defence power - Service offences - Alleged offence committed while member on recreational leave in foreign country In Re ColonelAird; ex pAlpert ([2004] HCA44; 9.09.2004) by s9 the Defence Force Discipline Act 1982 (Cth) applied the other provisions of the Act by both in and outside Australia. By s61(1)(c) of the DFDA applied the criminal law applicable in the Jervis Bay Territory as a part of Australian military criminal law. McHugh J observed that following recent decisions of the High Court in Tracey, Nolan and Tyler it was now accepted that the propertest for military jurisdiction under Constitution s51(vi) was whether the Military Tribunal received jurisdiction by reason ofthe “service connection” ratherthan the “service status” of the accused [37]. The prosecutor was a member of the Australian Army stationed in Malaysia. He was alleged to have raped a woman while on leave in Thailand. He was charged under s61 of the DFDA with rape. His application for a Constitutional Writ to prevent the prosecution contending he had not committed an offence over which the DFDA had jurisdiction was rejected by the High Court by majority: Gleeson CJ; McHugh J; Gummow J; Hayne J; contra Kirby J; Callinan with Heydon JJ. Questions answered accordingly. Constitutional law - Aliens - Child born in Australia to non-citizen parents In Singh v Commonwealth ofAustralia ([2004] HCA43; 9.09.2004) the High Court considered whether a child born in Australia in 1997 to non-citizen parents and who had never leftAustralia was an “alien” within Constitution s51(xix). The majority of the Court concluded that the plaintiff was an “alien”: Gleeson CJ; Gummow, Hayne, Heydon JJ jointly; contra McHugh; Callinan JJ. The majority rejected a submission on behalfof the child that because she would not have been considered an “alien” at common law at the time of Federation she was beyond the “aliens power”. Gleeson CJ [29]; McHugh J [127], [130]; Gummow, Hayne, Heydon JJ [199]; Kirby J [248]; Callinan J [321], The Court considered the role of the Convention Debates and the meaning of terms at Federation in construing the Constitution. Questions answered accordingly. Evidence - Discovery - Privilege against selfincrimination - Proceedings by ASIC for declarations under s1317E Corporations Act In Rich vASIC ([2004] HCA42; 9.09.2004) by S1317E the Corporations Act 2001 (Cth) enabled ASIC to commence a proceeding seeking a declaration that the appellant had as a company director failed to discharge duties with due care and diligence contrary to s180(1) of that Act. The primary Judge in the proceeding ordered the appellant make discovery. This orderwas upheld by a majority of the NSW Court ofAppeal. In the High Court the appellant contended he should not be ordered to make discovery as the proceedings exposed him to a penalty. This submission was accepted by the majority of the High Court: Gleeson CJ; Gummow, Hayne, Callinan, Heydon JJ; sim McHugh J; contra Kirby J. Constitutional law - Parliament - Elections - Validity of provisions requiring registration of political parties In Mulholland vAustralian Electoral Commission ([2004] HCA 41; 8.09.2004) the High Court dismissed proceedings seeking declarations that provisions ofthe Commonwealth ElectoralAct 1918 (Cth) concerning the registration of political parties were invalid. The Court concluded provisions that required a political party have 500 members to become and remain registered, and provided that one person could not be counted as a member of two parties, were valid and did not burden freedom of political communication. Appeal dismissed. Industrial law-Whether industrial action “protected action” - Bargaining agent’s fee In Electrolux Home Products Pty vAustralian Workers’ Union ([2004] HCA 40; 2.09.2004) the High Court concluded that parts of a proposed certified agreement requiring future employees to pay to a union an “agent’s fee” did not contain a matter pertaining to the relationship between employer and employee. The Court concluded that action in support ofthe agreement was not “protected action” within s170ML of the Workplace Relations Act 1996 (Cth): Gleeson CJ; McHugh J; Gummow, Hayne, Heydon JJ; Callinan J; contra Kirby J. Appeal against contrary view of Full Court of Federal Court allowed. Summary offences - Vagrancy - “threatening and insulting words” - Implied freedom of speech - Whether statement to police officerthat he is corrupt is insulting In Coleman v Power ([2004] HCA 39; 1.09.2004) by s7(1) the Vagrants, Gaming and Other Offences Act 1931 (Q) made it an offence fora person to use threatening, abusive or insulting words. The appellant distributed pamphlets in Townsville alleging a police officer was corrupt. The police officer approached the appellant who said loudly in a public place that the police officer was referred to in the pamphlet and corrupt. A Magistrate convicted the appellant of using insulting words. His appeal to the Court of Appeal (Q) failed. His appeal to the High Court was allowed by majority: McHugh J; Gummow, Hayne JJ; Kirby J; contra Gleeson CJ; Callinan J; Heydon J. The appellant contended that the provision should be construed so it did not interfere with his implied Constitutional right to discuss matters of public importance. This construction was accepted by the majority (McHugh J [110]; Gummow, Hayne JJ [200]; Kirby J [257]). Appeal allowed. Convictions set aside. Federal Court Notes: November 2004 Prepared for the Law Council of Australia and it Constituents by Thomas Hurley, Barrister, Vic., NSW, ACT(Editor, Victorian Administrative Reports) Native title - Application for determination of native title - Procedure - Amendment to legislation In Briggs v Minister for Lands NSW ([2004] FCA 1056; 18.08.2004) Moore J concluded an application for a Page 25 — September 2004 J NOTICEBOARD determination of native title lodged before the commencement ofthe Native Title AmendmentAct 1998 (Cth) and amended afterthatAct must comply with ss61, 62 of the Native Title Act 1993 (Cth) as amended by the 1998 Act. Migration - Cancellation of student visa - Delayed notice of breach In Liu vMIMIA ([2004] FCA1058; 17.08.2004) Cooper J concluded that delays in providing notice ofalleged breach of condition ofstudent visa did not constitute jurisdictional error. Bankruptcy - Claim by trustee in bankruptcy to equity in partner’s loan account In Trecomax P/L v Prentice ([2004] FCA 1057; 17.08.2004) Sackville J considered a claim by a trustee in bankruptcy to an amount standing in the credit of a bankrupt legal practitioner’s loan account with the service trust forthe partnership. Migration - Visas - Conditions - Validity and effect of condition prohibiting further application for a visa In El Ess v MIMIA ([2004] FCA 1038; 13.08.2004) Gray J considered the validity of an 8503 condition purporting to prohibit further applications for visas whilst in Australia. Trade practices - Representations by prescribed information provider - Olympic affiliations In Seven Network Ltd v News Interactive P/L ([21004] FCA 1047; 12.08.2004) Tamberlin J dismissed an application alleging representations on a website of a “prescribed information provider” falsely represented that this person had rights in relation to the Olympic Games. Patents - Payment of continuation fee after due date In GS Technology P/L v Commissioner of Patents ([2004] FCA 1017; 9.08.2004) Spender J set aside a decision of the AAT which affirmed a decision to refuse an extension of time to a patent holder to pay a continuation fee consequent on erroneous advice from a patent attorney. Corporations - Authorisation for applicant to apply for examination summons In Woolf v ASIC ([2004] FCA 1020; 6.08.2004) R D Nicholson J dismissed an application seeking a review of a decision of the respondent to authorise an eligible applicant to apply for an examination summons. Native title - Non-extinguishment principle - When application is made In Rubidi Community vWA ([2004] FCA 1019; 6.08.2004) Merkel J considered when “the application is made” within s47(1)(b), 47A(1)(b), 47B(1)(b) ofthe Native TitleAct 1993 (Cth) so that the non-extinguishment principle operated. Admiralty law - Carriage of goods by sea - Value of cargo - Whether individual posters and prints separate ‘packages or units” In El Greco (Aust) P/L v Mediterranean Shipping Co SA ([2004] FCAFC 202; 10.08.2004) a Full Court (Black CJ, Beaumont, Allsop JJ) considered when individual posters and prints constituted separate “packages or units” for the purposes ofthe Carriage of Goods by Sea Act 1991 (Cth) and how the “normal value” of goods at destination was to be determined. Trademarks - Chinese script In Melvin Chinese Press P/L v Australian Chinese j} Page 26 — September 2004 Newspapers P/L ([2004] FCAFC 201; 10.08.2004) a Full Court (Wilcox, Kiefel & Bennett JJ) considered whether a trademark consisting ofthe respondent’s title in Chinese script had been infringed. Discrimination - Disability discrimination - Whether reasonable condition imposed In Catholic Education Office vClarke ([2004] FCAFC 197; 6.08.2004) a Full Court (Tamberlin, Sackville, Stone JJ) considered whetherthe offer of enrolment by a school to a deaf student conditional on acceptance of a “model of learning support” that excluded sign language interpreting services was reasonable within the Disability Discrimination Act 1992 (Cth) ss6, 22. Trademarks - Similarity - “Crazy Ron” - “Crazy John” In Crazy Ron’s Communications P/L v Mobile World Communications P/L ([2004] FCAFC 196; 6..08.2004) a Full Court (Moore, Sackville, Emmett JJ) considered whether aural use of “Crazy Ron” infringed a registered composite trademark including the words “Crazy John”. The Court further considered whether s65(5) ofthe Trade Marks Act 1995 (Cth) authorised amendment of an application which named the wrong person as owner of the mark. Migration - Refugee status - Outspoken journalists in Bangladesh In NAPU v MIMIA ([2004] FCAFC 193; 5.08.2004) a Full Court (Moore, Branson, Emmett JJ) allowed an appeal raising the issue of whether outspoken journalists in Bangladesh could constitute a particular social group for the purposes ofthe Refugees Convention. Patents - Nature of appeal to Federal Court In New England Biolabs IncvF Hoffman-La Roche AG ([2004] FCAFC 213; 13.08.2004) a Full Court (Keifel, Allsop, Crennan JJ) considered the nature ofthe appeal to the Federal Court against a decision of the Commissioner of Patents under s104(7) ofthe Patents Act 1990 (Cth) (concerning amendment of patent specifications) and concluded the Court had no general discretion to make an amendment otherthan that which resided in the Commissioner. Contract - Penalty In Ringrow P/L v BP Australian P/L ([2004] FCAFC 206; 13.08.2004) a Full Court (Beaumont, Conti, Crennan JJ) considered whether the terms on which a distributor of motor fuels repurchased the freehold to a petrol station on the distributor/owner breaching a collateral contract to sell only the motor fuels ofthe distributor constituted a penalty and made the re-purchase agreement void. Bankruptcy - Proof of debt - Procedure for converting foreign debt into Australian currency In Re Griffiths ([2004] FCAFC 102; 16.08.2004) a Full Court (Beaumont, Weinberg, Crennan JJ) concluded that foreign debts should be converted intoAustralian currency under the rates of exchange current on the date of bankruptcy [74], Administrative law - Application to cross-examine decision-maker - Search warrants In Seeter P/L v C of A ([2004] FCA 1104; 25.08.2004) Spender J considered an application to cross-examine a NOTICEBOARD Justice ofthe Peace who issued a search warrant and was thus exempt from the obligation to give reasons for this decision under the AD (JR) Act, Superannuation - Proof of death of member - Murder In Hannover LifeAssurance Re ofAustralia Ltd vMembrey ([2004] FCA 1095; 25.08.2004) Crennan J concluded the SCT did not err in finding an insurance company had unreasonably and unfairly refused to pay interest to relatives of a memberwho had disappeared and was most likely murdered and had considered the claim forfive years after the finding by the Coroner that the member had been murdered. Consideration of whether compound interest appropriate. Migration - Procedure in applications remitted from High Court In Applicant A184 of 2003 v MIMIA ({2004] FCA 1076; 19.08.2004) LanderJ considered the time limits applicable in the Federal Court in proceeding with Constitutional Writs remitted to it from the High Court. FOI - Legal professional privilege In Bennett v CEO Customs Service ([2004] FCAFC 237; 25.08.2004) a Full Court (Tamberlin, Emmett, Gyles JJ) concluded the AAT had no power to consider a decision to claim an exemption underthe FOI Act separately from whether the exemption existed. The Court considered when legal professional privilege would be waived when it was conveyed in whole or part to third parties. The Court further considered whether privileged matterwould be exempt if used by the relevant agency to determine entitlements or obligations of persons generally under an enactment or scheme conducted by that agency. Migration - “formative years in Australia” In Nafeh vMIMIA ([2004] FCAFC 232; 20.08.2004) a Full Court (Gray, Whitlam, Moore JJ) concluded there was no possible concrete formulation for determining whether a person had spent the greater part ofthe period that the Minister regards as the persons formative years in Australia within Clause 832.212(4) ofthe Migration (1994) Regulations. Migration - Anshun estoppel In Wong v MIMIA ([2004] FCAFC 242; 31.08.2004) a Full Court (Emmett, Conti, Selway JJ) a Full Court concluded Anshun estoppel applied to judicial review proceedings and prevented the appellant raising a question concerning the construction a Gazette Notice unders503A(9) ofthe Migration Act when it could have been raised in earlier proceedings. Trade practices - Whether statement “in trade or commerce” public and political debate In Village Building Company Ltd v Canberra International Airport P/L ([2004] FCAFC 240; 31.08.2004) a Full Court (French, Sackville, Conti JJ) dismissed an appeal against the conclusion ofthe trial Judge that statements by the operator of an airport as to estimates offuture noise levels were not made “in trade or commerce”. The Court considered when statements by a trading entity were not made “in trade or commerce” within s52 ofthe TPA Act and the interpretation ofConcrete Construction (NSW) v Nelson (1990) 169 CLR 594. Migration - Visas - Student visa - Compliance with conditions concerning academic results In Tian v MIMIA ([2004] FCAFC 238; 30.08.2004) a Full Court (Ryan, Jacobson, Lander JJ) doubted whetherthe duty ofthe Ministerto cancel a visa where a student has not achieved an academic result that is “at least satisfactory” was to be construed by accepting substantial compliance with the condition as sufficient. Migration - Validity of bridging visa conditions in Applicant S453 of 2003 v MIMIA ([2004] FCA 1106; 30.08.2004) Sackville J rejected submissions contending that conditions in bridging visas prohibiting work or study were beyond the powers conferred by the Migration Act and contrary to Australia’s international obligations. Administrative law - ATSIC Commission - “misbehaviour” In Clark v Hon Amanda Vanstone ([2004] FCA 1105; 27.08.2004) Gray J concluded that in dismissing the chair person of ATSIC for “misbehaviour” under s40 ofthe Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) the respondent had failed to considerwhetherthe alleged “misbehaviour” has impacted on the applicant’s conduct of his office and the decision to suspend him should be quashed. Federal Court of Australia Northern Territory District Registry Notices to Practitioners No. 1 of 2004 (replaces No.1 of 2001) CORPORATIONS MATTERS The Court regained corporations jurisdiction upon commencement ofthe Corporations Act 2001, the ASIC Act 2001 and related legislation. Corporations matters filed on the Northern Territory District REgistry will ordinarily be listed either before the District Registrar on a Thursday morning at 9.30am in Courtroom 9 at hte Supreme Court Building, State Square Darwin or before a judge on a date and time to be arranged. Arrangements can be made to hear matters at short notice if necessary. The District Registrar will ordinarily deal with all appropriate Corporations matters within the Registrar’s delegation. The rules governing corporations proceedings are contained in a separate chapter ofthe Federal Court Rules, the Federal Court (Corporations) Rules 2000. No. 2 of 2004 (replaces No.2 of 2001) ISSUE OF SUBPOENAS - ORDER 27 Federal Court Amendment Rules 2003 (no 4) were published in the Commonwealth Government Gazette on 23 December 2003 as Statutory Rule No 377 of 2003. ThoseAmendment Rules commenced on 1 March 2004. The Amendment Rules replaced Order27 (Subpoenas) with a new Order 27 and inserted a new Order 27A, which retiansthe requirement that a subpoena may be issued only with the leave of hte Court or a judge. The new Order27 gives effect to the harmonised subpoena rules developed by the Council of Chief Justices’ Rules Harmonisation Committee. The AmendmentAmednment Rules also replaced Form Page 27 — September 2004 J NOTICEBOARD 41 (Subpoena for Production), Form 42 (Subpoena to Give Evidence) and Form 43 (Subpoena for Production and to Give Evidence) in Schedule 1 with a sinlge new Form 41. The new form allows the issuing party to indicate whether the addressee is requireed to attenedd to give evidence, produce a document orthing orto give evidence and produce a document orthing. Order 27A applies to a subpoena that is to be issued under Order27. Asubpoena must not be issued withou the leave ofthe Court or a judge. Leave may be given to issue a subpoena generally or in relation to a particular subpoena or subpoenas and subject to conditions. An information application may be made byway of a letter that sets out the details ofthe connectionof the person or documents sought to be subpoenaed to the proceedings before the Court. Order 27 rule 3 (8) provides that; A subpoena must specify the last date for service of the subpoena, being a date not earlier than: (a) 5 days; or (b) any shorterorlongerperiod as orderedby the Court and specified in the subpoena; before the date specified in the subpoena for compliance with it. If a shorter or longer period is sought, teh subpoena must be accompanied by a letterthat sets out the ground and facts relied upon. Practitioners are reminded of the provisions of Order 3 rule 2 in relation to the reckoning of a period oftime. August 2004 Sittings of the NT Legislative Assembly The following bills were introduced and passed during the August 2004 sittings. Bills Introduced Evidence Reform (Children and Sexual Offences) Bill 2004 (Serial 240) Nuclear Waste Transport, Storage and Disposal (Prohibition) Bill 2004 (Serial 243) PoliceAdministrationAmendment (Forensic Procedures) Bill (Serial 241) Criminal CodeAmendment (Money Laundering) Bill (Serial 244) Poisons and Dangerous Drugs Amendment Bill 2004 (Serial 247) Child Protection (Offender Reporting and Registration) Bill 2004 (Serial 246) Bills Passed Remuneration TribunalAmendment Bill 2004 (Serial 236) Magistrates Amendment Bill 2004 (Serial 237) Teachers Registration (Northern Territory) Bill 2004 (Serial 239) Petroleum Amendment Bill 2004 (Serial 233) CoronersAmendment Bill 2004 (Serial 235) Parks and Wildlife Commission Amendment Bill 2004 (Serial 222) Statue Law Revision Bill 2004 (Serial 238) Publications (Legal Deposit) Bill 2004 (Serial 221) Tanami Exploration Agreement Ratification Bill 2004 (Serial 242) NORTHERN TERRITORY COUNCIL OF LAW REPORTING INC. ABN 35 479 171 936 Patron: The Hon Austin Asche AC QC Editor-in-Chief: Ms Melanie Little SM Tel:(08) 8951 5700 Fax:(08) 8951 5702 Chairman: The Hon Justice Dean Mildren RFD GPO Box 1394 Alice Springs NT 0871 Tel: (08) 8999 6365 Fax: (08) 8999 7575 Email: melanie.little@nt.gov.au Secretary: Mr Craig Smyth Treasurer & Public Officer: Ms Frieda Evans Tel: (08) 8999 6115 Fax: (08) 8999 7066 Tel: (08) 8999 6585 Fax: (08) 89996181 Email: craig.smyth@nt.gov.au Email: frieda.evans@nt.gov.au All correspondence: GPO Box 2388 DARWIN NT 0801 EDITOR-IN-CHIEF EXPRESSIONS OF INTEREST The Northern Territory Council of Law Reporting Inc. is seeking expressions of interest in the position of Editor-in-Chief of the Northern Territory Law Reports. The position is remunerated by the Northern Territory Council of Law Reporting. Duties include reading all NT judgments to determine whether they will be reported, allocating judgments to reporters, sub-editing and proofreading, some headnote writing, and liaising with sub-editors, layout staff and the publisher. Expressions of interest should be received no later than Friday 12 November 2004 and should be directed to: Mr Craig Smyth, Secretary Northern Territory Council of Law Reporting Incorporated, GPO Box 2388, Darwin NT 0801. Page 28 — September 2004