Associated Retailers Limited v Toys Unlimited Pty Ltd & Anors and Blue Moon Grill Pty Ltd

A Victorian barrister, Jonathan Evans, travelled to Cairns to attend a mediation of a claim made by Associated Retailers Limited (“ARL”) for monies it alleged were due by Toys Unlimited, trading as Toyworld in Cairns, and various guarantors. At a mediation that was conducted in Cairns with Toys Unlimited all but one of the guarantors (“the settling parties”) entered into a compromise evidenced in writing whereby the settling parties jointly and severally agreed to pay ARL the amount of $25,000.00 in full and final settlement of ARL’s claim (“the Settlement Agreement”). The guarantor who did not settle, a Mr Paul Moore, subsequent to the mediation amended his defence to add an allegation that the Settlement Agreement had the effect of discharging him from any liability he may otherwise have had to ARL. Mr Moore’s argument was that as Toys Unlimited, who was the principal debtor, was released from further obligations in consideration for entering into the Settlement Agreement then there was no longer any debt that was guaranteed by Mr Moore.

Mr Evans was not accompanied by an instructing solicitor on his visit to Cairns for the mediation. Mr Evans was joined by ARL as a further defendant to the proceedings. ARL alleged that if the Settlement Agreement had the effect of discharging Paul Moore’s liability to ARL then Mr Evans was liable to ARL and negligent.¹

As between ARL, Mr Moore and Mr Evans there was an issue of whether or not the Settlement Agreement was to be characterised merely as an agreement that provided a covenant on the part of ARL not to sue or an accord and satisfaction that had the effect of discharging the principal debtor Toys Unlimited. The terms of the Settlement Agreement relevantly provided:

(a) That the settling defendants pay $25,000.00 by instalments on the date set out in the Settlement Agreement “in full and final settlement of the plaintiff’s claim against them inclusive of all interest, costs and disbursements”;

(b) That the proceeding which was issued out of the Victorian Supreme Court be struck out with a right of reinstatement in the event that any payment due under the instalment schedule was outstanding for more than two days after the due date. Upon reinstatement ARL was to have the right to enter a judgment against the settling parties for all amounts remaining to be paid under the terms.

Kyrou J said as follows in respect of the legal issues arising from the arguments between the parties:-

“183. At common law, a release of one of a number of co-debtors who are jointly, or jointly and severally, liable for the same debt releases all of them. Similarly, if a creditor, without having received full payment or performance from the debtor, agrees to release the debtor, any guarantor will also be released.

184. This rule does not apply where the creditor enters into a covenant not to sue a debtor because such a covenant does not affect the underlying liabilities of the co-debtors or guarantors.

185. The question of whether a contractual term operates as a release or as a covenant not to sue must be determined by construing the term in the context of the contract as a whole. If it appears that the term, properly construed, was intended by the parties to the contract not to operate as a release of all co-debtors or guarantors, then the term should be construed only as a covenant not to sue the debtor purportedly released by the contract.

186. In James v Surf Road Nominees Pty Ltd, the New South Wales Court of Appeal observed that ‘[t]he question of construction is not always easy to resolve’ and the court may have ‘to search for factors that may determine the matter one way or the other.’ The Court identified the following three factors:

(a) where there is a joint obligation, a term that is expressed to be a release will usually be construed to have that meaning;

(b) even if there is a joint obligation, if any intention to reserve rights against the co-debtors or guarantors is found, expressly or impliedly, in the contract, then it is most likely that the parties intended the term to operate as a covenant not to sue; and

(c) the court may have regard to the surrounding circumstances in determining whether the term was intended to operate as a release or as a covenant not to sue the party who bears a joint or joint and several liability.

187. It is clear that the first factor identified above is subject to the second factor. In Dorgal Holdings Pty Ltd v Buckley, for example, the creditor and one of three co-debtors executed a deed of settlement by which the debtor agreed to make partial payment of the alleged debt in ‘full and final settlement’ of all moneys owing by him, and the creditor expressly agreed to release him from any further liability. The deed also provided that it did not ‘extinguish or limit in any way the rights, remedies and claims of [the creditor] against any other person’. McLelland CJ in Eq held that the deed should be construed as a covenant not to sue, and that it did not operate to release the other co-debtors.”

(footnotes ommitted)

The ultimate finding was that there was an accord and satisfaction as between Toys Unlimited as principal debtor and ARL as creditor.

Notwithstanding the finding that the Settlement Agreement reduced or released Mr Moore from his liability under his guarantee Mr Evans, the barrister, was not the subject of a judgment. Mr Evans was found to be negligent² but Mr Moore succeeded on other defences to ARL’s claim that meant Mr Moore never had any liability to ARL, so that Mr Evan’s negligence did not cause any loss to ARL.

Blue Moon Grill Pty Ltd v Yorkeys Knob Boating Club Inc.

The case of Blue Moon Grill Pty Ltd v Yorkeys Knob Boating Club Inc.³ involved a settlement agreement where the issue was whether or not some terms of settlement agreed between the parties operated as in accord and satisfaction, immediately discharging liability or were “accord executory” whereby the proceedings were only to be deemed settled upon performance by the parties of the terms of settlement. The relevant terms of the “terms of settlement” included a concluding term as follows:

“Upon performance by the defendant and the plaintiff of the terms of this settlement the current Supreme Court proceedings between the parties in this matter be dismissed with no order as to costs, and the parties hereby discharge and release each other from any actions, claims or demands of whatsoever nature or howsoever arising out of this matter, and agree to instruct their solicitors to sign such documents and take such steps as necessary to give effect in the terms of this agreement”.

At first instance it was found that the last part of the relevant clause have immediate effect in respect of the Supreme Court proceedings the subject of the terms of settlement. On appeal it was argued that the word “hereby” when read in context in the terms of settlement did not have a temporal effect but rather had the effect of making the terms of settlement a release if not for the words after the word “and” that would have otherwise have to have been given after performance of the other terms of settlement.

The argument on behalf of those seeking to support the proposition that the terms of settlement operated as in accord and satisfaction was that the reference to the dismissal of the current Court proceeding after performance of the terms of the settlement was that the proceedings remained on foot only as convenient means of allowing enforcement of the terms of settlement.⁴

Ultimately the Court of Appeal favoured the approach that was contended for by the appellant that was arguing that there was no immediate release and discharge. This conclusion was reached after an analysis of the nature of the obligations placed on the parties by the other terms of settlement. Ultimately it was concluded that having regard to those matters it was unlikely the parties had intended to effect an immediate discharge.

Discussion

In both of the above cases the documents drawn by the parties to record the terms of settlement were prepared, as they often are, in less than ideal circumstances. For Jonathan Evans, he had travelled from Melbourne to Cairns and did not have the benefit of an instructing solicitor. Mr Evans was charged with providing representation and advice in multiple claims and was negotiating on behalf of ARL with two sets of defendants. Mr Evans was remote from his office and resources that may otherwise have been available to him in assisting in drafting terms of settlement in a way that would reflect what ARL wanted from the terms of settlement with those parties who were prepared to settle at the mediation.

In the case of Blue Moon Grill the parties reached their agreement between the opening of business and the commencement of an applications list in the Supreme Court in Cairns.

The above two cases however show that legal representatives acting for parties who are fortunate enough to reach agreement amongst themselves for the settlement of their mutual disputes must have a sound understanding of the rules that apply to the construction of documents that record such settlements or risk consigning the parties to further disputation. Worse still, the ARL case shows that a poor settlement agreement could attract a claim of professional negligence. Thought needs to be given prior to a mediation to the likely possible outcomes and how those outcomes could be recorded, rather than attempting a drafting exercise at the end of what can be a long day when parties may be anxious to leave.

It is unlikely that mediators would owe a duty to any of the parties in preparation of such documentation. Mediators have the advantage over the representatives of the parties in that they usually have the benefit of mediation agreements. Such mediation agreements often contain within them exclusions of liability on the part of the mediator for any parties supposed of dissatisfaction with the terms of settlement that may be drafted by or with the assistance of the mediator.

Footnotes

1. Associated Retailers Limited v Toys Unlimited Pty Ltd [2011] VSC 297 at paragraphs [1] through [8] inclusive .

2. Associated Retailers Limited vToys Unlimited Pty Ltd at paragraph [213]

3. Blue Moon Grill Pty Ltd v Yorkeys Knob Boating Club Inc. [2006] QCA 253 .

4. Blue Moon Grill Pty Ltd v Yorkeys Knob Boating Club Inc. at paragraph [25]

The Blokes Book Club has a new member, Damien, a creative type working for “a Brisbane-based multimedia, web design, print services company”. That’s what its website says, anyway. It wasn’t Damien, however, who came up with William Gibson’s first novel, Neuromancer, as our reading task for the month of August. Sci-fi is a secret love of Andrew, engineer and amateur historian of railway bridges and other transport infrastructure. And it was to Andrew’s impeccable, fifteen year old, workers’ cottage to which we trooped to discuss, as part of a wide ranging and rambling discourse, the inner workings of Neuromancer.

As a matter of pure coincidence, Damien also happens to love sci-fi and has read every one of William Gibson’s nine novels.

Neuromancer was published in 1984. As with much science fiction writing, the first few lines of Neuromancer sound old fashioned, almost like a two shilling western and then the narrative takes hold.

Case is a former cowboy of the Matrix, the complex of data that allows disembodied travel. He works for criminals who steal from corporations via the Matrix; had been taught by the geniuses of his trade; and was respected for his brilliance. Case is a criminal super hacker imagined before there were things to hack and hacking had become a reality. But he took his ultimate fall. He kept something of his ill-gotten gains back from his employers and was caught trying to flog it off in a black market in Amsterdam. His punishment was not death as he had expected. It was subtle damage to his nervous system which prevented him from having any further ability to ride the Matrix. He was unemployed and unemployable.

The novel opens in Chiba, Tokyo’s port, in a nether world of down market criminality, where Case is making dangerous deals and spending his dwindling supplies of New Yen on a fruitless effort to find a cure for his damaged nervous system. Case is aware that he is one careless error away from oblivion and subconsciously looks forward to the end.

The one matter that complicates his acceptance of his anticipated violent end is his relationship with Linda Lee, another lost soul, whose love for Case is matched only by her physical addiction to the various amphetamine like drugs to which Case has introduced her during their short relationship.

Case’s life, without any effort on his part, takes a dramatic change. He is kidnapped by the beautiful and physically enhanced Molly on behalf of a former war hero, Armitage, and offered an opportunity of the kind that one does not refuse even if one could. He is offered medical restoration of his former capabilities in order to work solely for the principals behind Armitage. The restoration works although Case is informed that, were he fail to continue to cooperate, tiny poison sacs implanted in his body would reduce him to his former state of nervous system disadvantage in short order.

And, so the adventure begins. Molly’s physical enhancements add to her physical prowess and include modifications to assist her role as muscle for her employers. They include blades attached to and recessed into her fingertips. In addition, her vision and perception are also enhanced by microchip inserts.

Molly and Case become lovers as well as colleagues and they work together to find out who lies behind Armitage. The answer turns out to be a form of artificial intelligence called Wintermute associated with a corporate giant, Tessier-Ashpool, whose ventures include a tourist oriented satellite in space called Straylight, a sort of extra-terrestrial cross between Atlantic City and Las Vegas. What is not clear is why Wintermute’s actions and intentions do not seem aligned with the interests of the corporation to which it belongs and who has programmed it and, initially, created it. What is also unclear and of considerable importance is whether Wintermute is, ultimately, a force for good or evil, notwithstanding, case’s limited ability to control his options.

The imagination displayed by Gibson in a book written before 1985 is very striking. His anticipated of a fully-fledged internet under the rubric of the Matrix is very impressive. His depiction of corporate internet security able to be visualised as similar to a vaporous form of ice and its ability to cause damage to any disembodied traveller who approaches too near is both imaginative and impressively predictive of the various anti-viral and anti-hacking devices that are continually developed to protect computers and information, today.

It is a Chinese military device that Case uses to defeat the Tessier-Ashpool ice. Slowly but effectively, the Chinese device engages with the ice and takes it in an embrace that renders it powerless to stop Case’s virtual intrusions. As a metaphor, that piece of inventiveness has gained further kudos as Chinese military hacking has become an increasing problem.

Neuromancer is a brilliant piece of predictive imagining. Its credentials as a classic of science fiction are not to be doubted. Good fiction of any kind, however, requires good characters and Gibson provides an excellent cast from what one might have thought were dubious ingredients. Molly is an avenger for the exploited and the down trodden. Case obtains a moral view of the universe despite his criminal background and his willingness to kill or be killed. And Wintermute, although its primary importance may be as a vision of artificial intelligence whose day is still to come, displays a quirkiness and impishness of which any writer of fiction might well be proud.

The relationship between Molly and Case is in many ways one of convenience. It is also one of subtlety, tenderness and an equitable sharing of teaching, learning and initiative. The relationship between Case and Linda Lee appears to have finished in an unfortunate bout of blood spilling in the mean streets of Chiba. Later in the novel, however, at the behest of Wintermute, there is a sequel which bestows the relationship with longing and significance that surprises Case as much as it does the reader.

The Blokes were divided about Neuromancer. John, the consultant town planner, who understands everything claimed to be still coming to terms with the book’s language and concepts. Damien gave us a potted history of the emergence and career of Gibson and was fulsome in his praise. Others were still undecided. Andrew, who suggested it, was reading Neuromancer for the second time in a few months. Andrew’s idea is not as crazy as it sounds in a world of too many books and too little time. Neuromancer is definitely a book where much that was skimmed over in a first reading is understood at further levels and gains significance on a second look.

I loved Neuromancer. The prediction of the internet and hacking and several other technological changes that have since become reality was impressive enough. What made it an excellent novel, however, for me was the relationship stuff.

The melancholy and longing of a good love story gets me every time.

We join to farewell our colleague the Far Northern Judge, Justice Jones, upon his retirement from the Supreme Court. We do so with regret at his departure, but also gratitude for his contribution.

Justice Jones is highly respected by all his colleagues. Consistently, Judges who cannot be present here today are present in a virtual sense, by video-link from Brisbane, Rockhampton and Townsville. All Judges would wish to be associated with the observations I am about to make.

In welcoming all persons present this morning, I particularly note the presence of the Honourable the Deputy Premier and Attorney-General, Chief Justice Keane and Justice Dowsett of the Federal Court of Australia, both former members of this court, Judges of the District Court, the Chief Magistrate and Magistrates, retired Judges, Land Court member Mr Cochrane, Mayor Val Schier, Members of Parliament, Bishop Foley, Consuls and the Far Northern Judge Designate, Mr Jim Henry SC.

Justice Jones joined the Supreme Court on 2 October 1997, following a distinguished 33 year career in the practising profession, mostly as Counsel, and for the last 8 years as Queen’s Counsel. His Honour practised from Rockhampton, to which he contributed substantially, including as Chancellor for 13 years of Central Queensland University. That community contribution, and many others, were recognized by the nation in the year 2005 with his appointment as an Officer of the Order of Australia. He has also been awarded two honorary doctorates.

Justice Jones has discharged his judicial duties with great distinction. It is upon his role as the inaugural Far Northern Judge that I should dwell for a moment this morning.

Our colleague has established and developed the role of Far Northern Judge with great effectiveness, not only in accomplishing the heavy workload of this busy Supreme Court centre, but additionally, in presenting the Supreme Court to the regional community for the significant institution which it is. He has readily and regularly interacted in many ways with the civil community at all levels of government, at schools and the University, and through other community organizations, to the point where he is very well-known and respected as a fine community leader. Like the recently retired Northern Judge Justice Cullinane, Justice Jones has willingly embraced this aspect of the role of resident regional Supreme Court Judge, and what he has done has served to enhance community awareness of the work of the judicial branch of government at this high level, and reinforced respect for the court and its responsibility in the delivery of justice according to law and the maintenance of the rule of law.

In all these endeavours, our colleague has been greatly supported by his wife Helena, for whom all within the Supreme Court community feel great affection. Justice and Mrs Jones leave that community now with the warm appreciation of the court, and the Queensland, especially the Far North Queensland, community. We wish them all the very best as they embark upon a new chapter of their lives together.

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The following speech was delivered by Karalyn Shaw, a former associate of the Justice Jones, on behalf of all of his associates, at his Honour’s recent retirement dinner.

Distinguished guests, ladies and gentleman.

In thanking you tonight on behalf of all your Associates, Judge, I would like to take the liberty of drawing on a few personal reflections.

When I first came to work with you, something which resonated deeply with me was the duality of your distinguished career devoted not only to the law but also to education. My parents firmly instilled in me their guiding philosophy that perhaps the greatest gifts anyone can impart are time and education and as your Associate, I had the privileged position, of being able to fully appreciate and admire first-hand, the extent of your service to both these fields.

Your Associates benefitted greatly from the combination of these prevailing interests in your life. To us, you were not only an astute, highly accomplished legal mind, also dedicated to the furtherance of higher education in this country, through your role as Chancellor of CQU for many years, but also, an impassioned teacher of the law, of the world and of life.

You never missed an opportunity to explain a complex rule of procedure, evidence or advocacy, enlighten us as to the etymology of a word or assist with our Latin pronunciation and derivation. You shared your immense general knowledge and taught us of geography, history, human rights, literature, poetry, music and art. We learned the importance of not judging prematurely, being compassionate, keeping an open mind and a sense of humour.

Some of my fondest memories range from our discussing and debating points of law and argument in the corridor between Chambers and Court – you encouraging me to reason, to question and to think – to our travels, circuits, French language, the finer things in life – fine wines, cuisine, whiskey and champagne (which was always all the sweeter at the end of a pile of reserved judgments)!

Concomitant with all this was your willingness to make time for us as individuals.You always made time to listen.

We hope, Judge, during our service to you, we contributed to a consummate teacher pupil symbiosis through our research, writing, proof-reading, organisational, people and I.T. skills not to mention ever-willing practical, helping hands and our individual natures, interests and experiences.

Being a Judge’s Associate is a position of immense privilege and equally, one of responsibility and trust. During our tenure, we shared in your day to day life and consequently came to meet, work with and know others close to you, including your family, colleagues and especially, your dedicated secretary, Di Chambers. I also wanted to extend our thanks to Di, Helena and all the Jones family for all they did in accommodating, guiding and assisting us.

An investment in education returns an immeasurable richness. Judge, we are all the more rich and feel truly privileged for working with and getting to know you. You have a fine mind and are a true gentleman – ever-patient and ever-courteous. We are all immensely grateful for your tutelage and time.

May you be richly rewarded in your retirement with contentment and fulfillment, for all you have given throughout your distinguished career to your profession, the
community and to others, generally.

I now ask if you would accept this gift from me, on behalf of all of your Associates, as a token of our gratitude.

Karalyn Shaw (nee Orr) BA LLB (UQ) LLM (QUT)
Associate to The Honourable Justice S.G. Jones AO 2001

CIVIL APPEALS

Aircraft Technicians of Australia Pty Ltd v St Clair; St Clair v Timtalla Pty Ltd [2011] QCA 188 Fraser, Chesterman and White JJA 9/08/2011 

Executive Director of the Office of Liquor and Gaming Regulation & Anor v Cayneston Pty Ltd trading as The Mad Cow Tavern [2011] QCA 193 Margaret McMurdo P, Fraser and White JJA 12/08/2011 

General Civil Appeal from the Supreme Court, Trial Division — Administrative Law — Reviewable Decisions and Conduct and Conduct — Generally — Liquor Law — The respondent, the licensee of the Mad Cow Tavern in Townsville, applied for a statutory order of review of the decision of the first appellant, the delegate of the second appellant, to classify the respondent’s premises from 29 April 2010 as “high risk” under Pt 4 Div 9 Liquor Act 1992 (Qld) — The consequences of that classification are that the respondent cannot during trading hours serve liquid to patrons in regular glass containers, or leave or place regular glass containers in areas to which a patron has access — The primary judge granted the respondent’s application, set aside the classification; remitted the decision to the second appellant for further consideration according to law; and ordered that the appellants pay the respondent’s costs — On Appeal — Unfortunately, none of the parties, who were all legally represented placed the relevant facts before this Court, or, it seems, the primary court, in a clear, concise, or even, in some instances, legible way — This should have been done by the parties’ legal representatives — It is not the task of busy courts, either at primary or appellate level — On 9 October 2009, the second appellant’s Acting Director-General wrote to the Commissioner of the Queensland Police Service about the then recent amendments to the Liquor Act which included “In relation to (a specified) criteria OLGR has compiled a list of premises that are considered to fall within the scope of the provision, and is enclosed for your reference” — The second appellant issued a guideline under s 42A which was noted as “approved” and dated 30 October 2009 — The first appellant’s briefing note dated 3 November 2009 and signed by him as approved on 4 November 2009 does not appear to have been obtained by the respondent until after 3 March 2010 when the first appellant classified the respondent’s premises as high risk and included “The list (Attachment 3) (the document in contention) contains the name of the licensed premises, the dates and a summary of the relevant incidents and the criteria under which the committee felt it warranted inclusion” — On 20 November 2009, the first appellant sent the respondent a letter of notice of intention to classify its premises as high risk under s 98 — On 3 March 2010, the first appellant wrote to the respondent stating that he continued to be satisfied that all of the respondent’s premises were high risk under s 97(1)(b) for the reasons set out in the attached notice of decision and that he was classifying all of the respondent’s premises known as the Mad Cow Tavern as high risk under s 99B as from 29 April 2010 — The appellants conceded before the primary judge that the first appellant took into account the document in contention when issuing the 20 November 2009, s 98 notice — Had the respondent been provided with the document in contention before making its representations under s 99, it could have addressed the apparently significant question as to whether its premises met criterion (c), that is, whether 10 or more serious assaults were committed at its premises during the relevant period — The document in contention purported to be an accurate and succinct summary of violent episodes at the respondent’s premises during the relevant period — It is likely to have been a useful and convenient document for the first appellant in making his decision — The document in contention contained matters which were, at least arguably, wrong, and about which the respondent should have been given the opportunity to make submissions — The document in contention should have been disclosed to the respondent but it was not — It may have influenced the first appellant’s decision, at least subconsciously — Proper procedure in the sense of the abstract concept concerned with avoiding practical injustice described in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 — was not followed — The first appellant’s non-disclosure to the respondent of the document in contention amounted to a breach of natural justice — HELD: Appeal dismissed with costs.

Felgate v Tucker [2011] QCA 194 Margaret McMurdo P, Fraser and White JJA 12/08/2011 

Shaw v Menzies & Anor [2011] QCA 197 White JA, Margaret Wilson AJA and Peter Lyons J 16/08/2011 

Dunworth v Mirvac Qld Pty Ltd [2011] QCA 200 Chief Justice, McMurdo and Dalton JJ 19/08/2011 

General Civil Appeal from the Supreme Court, Trial Division — Conveyancing — Breach of Contract for Sale and Remedies — Purchaser’s Remedies — Rescission — By a contract dated 25 July 2007, the appellant agreed to purchase from the respondent a residential apartment in a proposed building at Tennyson, Brisbane — Before any completion of the contract, the by-then completed building was, on or about 13 January 2011, inundated by flood water — The ground floor unit which is the subject of the contract was flooded — A measure of the devastation of the flood was that the respondent required four months to complete the necessary restoration work, which it offered to carry out — The appellant rejected the respondent’s offer to restore the unit, and on 28 January purported to rescind the contract on the ground that the unit had been rendered unfit for occupation as a dwelling unit — The appellant thereby exercised a statutory right of rescission said to arise from s 64 of the Property Law Act 1974 (Qld) — The originally appointed completion date, following the establishment of the applicable community title scheme, was 12 May 2009 — The appellant contended she had been induced to enter into the contract by false, misleading and deceptive representations — On 10 December 2010 the appellant’s claim was however dismissed, and an order made for specific performance, with a completion date fixed for 8 February 2011 — It was on or about 13 January 2011 that the building was flooded and damaged, and the appellant purported to exercise her statutory right to rescind on 28 January 2011 — Because the sale contract was subject to the court order for specific performance, the appellant needed the court’s leave to enforce her right — The learned Judge extended the completion date to 8 June 2011, that is, by four months, and made procedural orders to facilitate a trial of the issues raised in the application, and entered the proceeding on the Commercial List — On Appeal — The statutory provision accords a right of rescission where premises are rendered uninhabitable before the date of completion or possession — Naturally read, those words in s 64 could refer to one or two constructions — The apparent objective of this beneficial provision is to accord relief to a purchaser where, without fault on his or her own part, the subject matter of an uncompleted contract is rendered unfit for the purpose — Consistently, the second of those constructions is textually preferable: if prior to actual completion or possession the premises are rendered unfit in that way, the purchaser gains a right of rescission — It follows that because, as conceded, the unit was rendered uninhabitable by the date of the purported rescission, the appellant gained a right to rescind at any time up to the date of actual completion or possession (whichever be the earlier date) — The submission that this construction rewards a wrong-doing purchaser is unfounded — The appellant had at an anterior stage suffered the consequence of her breach of contract: she was subjected to court orders adverse to her, including an order for specific performance, the respondent having decided to enforce rather than terminate the contract — The subsequent damaging of the property was obviously entirely without fault on her part — Any benefit she gained from the exercise of her right of rescission was not consequent upon any wrong-doing on her part, the consequences of which had earlier been spent; it was the consequence of the operation of remedial legislation — HELD: Appeal allowed, orders set aside, Declaration that on or about 28 January 2011 the appellant validly rescinded her contract with the respondent, The respondent’s cross-appeal be dismissed with costs.

Speech by Richard Douglas S.C.

Chief Justice, Justice McMurdo, Judge Wolfe, your Honours, Mr Dean Wells MP Association member and representing the Attorney General, past presidents, colleagues, ladies and gentlemen.

On behalf of the Bar Council of the Bar Association I welcome you to the formal opening of the Association’s new premises.

It was always important that this occasion be one with a small invitation list.

The intimacy of the list reflects the importance of properly recognising the significant contribution that all of you made to the establishment of these premises and the advance they present in affording services to our members.

In modern days the Association harbours significant responsibilities, not just for member service but also in discharge of its statutory roles and its non-partisan role in providing comment and submission on justice issues.

We think we discharge those functions well. We are certainly very member and community focused.

Importantly, as all of you know, what we undertake is voluntary work, a true labour of love.

I want to pay tribute this evening in particular to the former Association presidents. They have done so much to build the reputation, standing and strength of this Association.

I note in particular the presence this evening of three presidents who served early in my time at the Bar, Mr Cedric Hampson QC, Mr Bill Pincus QC and Mr Ian Callinan QC.

I remember well how much we young, dark haired counsel used to look up to you gentlemen as towering and courageous practitioners and leaders of our profession who we would be happy to emulate to any degree.

For posterity, all the former presidents will have their photos erected in the long hall behind me.

I pay tribute also to Mr Jim Murdoch SC, and his predecessor Judge Dorney QC, for chairing the Association’s commercial arm Barristers Services Pty Ltd. They have done so much to bring all this to fruition.

I also thank my friend David Tait SC and the Inns of Court board he chairs, for their cooperation and courtesy as our landlords. 

A number of our rooms are named after illustrious former members and presidents.

The Gibbs training room and the Brennan Conference room are two of them, complete with busts of those great jurists. 

The conference room to my left is named after our first president Arthur Herman Henry Milford Feez KC.

A photograph of this great advocate, often successful at the expense of the government of the day, appears behind me looking out across the river. 

Historically interesting is that Feez, our president for almost a quarter of a century, was the best man at the wedding of Dame Nellie Melba.

The room we are in is named after our illustrious Chief Justice who in a moment I will ask to formally open the premises.

In Jim Thomas QC’s latest tome “An Almost Forgotten World”, he speaks of the Chief Justice’s appointment, commenting:

He proved to be a fine choice and is living proof that seniority should never trump talent.

Ladies and gentlemen, I now ask the Chief Justice to speak, and in doing so to formally open these premises.

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Speech by The Honourable Chief Justice Paul de Jersey AC

Mr President, Your Honours, ladies and gentlemen

I am greatly honoured to have been given this most pleasant task this evening.

Dan O’Connor kindly gave me an introductory tour last week. I was most impressed, and I am confident you will have been as well.

The elegant functionality of the space is what one would expect for a Bar of the significance of ours. We have ventured very substantially beyond the expectations of an era of which Glenn Martin recently reminded me, when the sole Bar Administrator, Mrs King sat at her desk in what was little more than an alcove. The association of an 1,100 strong Bar should be housed in premises of this quality, a quality which will inspire professional pride in its membership. May I mention these particular features?

First, the teaching room. Its technology will be the envy of the universities. The sound experts, I am told, are those retained also for the new metropolitan courthouse project.

The former common room was never especially efficient for teaching purposes. This room will certainly overcome that deficiency. Importantly, the new facility will streamline transmission to the regions.

Another new feature is the elegant, purpose-built council room, with its superb table of Queensland timbers by local craftsman, Stuart Bywater.

The important heritage collection — lectern, furnishings, portraits and sculptures — has been refurbished and redisplayed with great effectiveness.

And then there is the overarching feature of the exposure of those within to the entry of natural light from without: while not diminishing the quiet serenity of the space.

The Council and Barristers Services have ensured a very good return for the outlay of which the President spoke at the Bar dinner a fortnight ago.

I congratulate the President Richard Douglas and the Chairman of Barristers Services Jim Murdoch on having brought the initiative to its completion, and commendation is also due of course, as ever, to Dan O’Connor.

Mr President, as your leadership of the Association draws to an end, you will rightly regard this project as one of the highlights of a most successful and effective presidency.

I understand that the Australian Bar Council met here recently. While of course we would eschew any competition in relation to accommodation, it is nevertheless reassuring that the members of that Council were apparently very impressed with what they saw, and I was pleased to receive Dan’s assurance that the Association now enjoys the most elegant and streamlined Bar offices anywhere in the nation.

These Inns of Court approach the silver anniversary of their opening, and the contribution of Barristers Chambers to this project was no doubt greatly appreciated. The establishment of this space for the Association denotes a considerable enhancement in what has always nevertheless presented as an appropriately fine home for a large proportion of the Queensland Bar. That the Association is at last appropriately housed also reflects the significant role it discharges, in administering the Bar and ensuring the continuing professional development of its members.

It is with great pleasure, therefore, that I now declare open this fine new office of the Bar Association of Queensland, with warm congratulations to all who have contributed to the production of such an excellent result.

 

Muldrock v The Queen [2011] HCA 39

Today the High Court allowed an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales which had increased the non-parole period imposed on a mentally retarded sex offender from 96 days to six years and eight months.

Mr Muldrock pleaded guilty before the District Court of New South Wales to the offence of sexual intercourse with a child aged under 10 years. Mr Muldrock is mentally retarded. He was sentenced to nine years’ imprisonment with a non-parole period of 96 days. The judge imposed a condition of parole that Mr Muldrock reside at a residential treatment facility with a program designed to assist intellectually handicapped individuals to moderate their sexually inappropriate behaviour until it was determined that he be discharged.

Mr Muldrock’s application for leave to appeal against the severity of sentence was refused by the Court of Criminal Appeal and the respondent’s appeal against the inadequacy of the length of the non-parole period was allowed. It was common ground that the sentencing judge’s discretion had miscarried because he did not have the power to impose conditions on a parole order for a sentence of nine years’ imprisonment. The Court of Criminal Appeal held that the non-parole period imposed upon Mr Muldrock was inappropriate and was critical of the sentencing judge’s failure to consider the “objective seriousness” of the offence and the part that the standard non-parole period should play in determining the appropriate sentence. In doing so, the Court applied its earlier decision in R v Way (2004) 60 NSWLR 168 (“Way“) on the application of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which prescribed standard non-parole periods for specified offences. Mr Muldrock was re-sentenced to a non-parole period of six years and eight months. Mr Muldrock appealed to the High Court by special leave.

The High Court held that the Court of Criminal Appeal erred in refusing Mr Muldrock leave to appeal his sentence and that Way was wrongly decided with respect to the operation of standard non-parole periods. The High Court held that in sentencing for an offence to which standard non-parole periods applied a court is not required or permitted to engage in a two-stage approach and that the standard non-parole period should not have been determinative in sentencing Mr Muldrock. The High Court also held that, in re-sentencing Mr Muldrock, the Court of Criminal Appeal made various errors. In particular, the Court of Criminal Appeal did not take sufficient account of Mr Muldrock’s mental retardation and erred in finding that Mr Muldrock would receive treatment in the prison system. The High Court held that the desirability of Mr Muldrock undergoing suitable rehabilitative treatment was capable of being a special circumstance justifying departure from the statutory proportion between the non-parole period and the term of the sentence and that the sentencing principles of punishment and denunciation did not require significant emphasis in light of Mr Muldrock’s limited moral culpability for his offence. The Court held that nine years’ imprisonment was manifestly excessive. The Court further held that the availability of orders under the Crimes (Serious Sex Offenders) Act 2006 (NSW) was not relevant to sentencing Mr Muldrock.  

Queanbeyan City Council v ACTEW Corporation Ltd [2011] HCA 40

The High Court dismissed an appeal by the Queanbeyan City Council (“Queanbeyan”) against a decision of the Full Court of the Federal Court of Australia, which held that water licence fees and a utilities network tax imposed by the Australian Capital Territory (“the Territory”) upon ACTEW Corporation Ltd (“ACTEW”), and passed on to Queanbeyan, were not contrary to s 90 of the Constitution. Under s 90 of the Constitution, the power of the Commonwealth Parliament to impose duties of excise is exclusive.

Under power conferred upon it by s 24 of the Local Government Act 1993 (NSW), Queanbeyan provides goods, services and facilities to the City of Queanbeyan. Queanbeyan obtains water supplies from ACTEW which holds a licence to take water from certain areas under the control of the Territory under the Water Resources Act 2007 (ACT). ACTEW previously held a similar licence under the Water Resources Act 1998 (ACT). ACTEW charges Queanbeyan for supplying water to residents and businesses within the City of Queanbeyan. The charge includes costs imposed on ACTEW under Territory legislation.

Pursuant to determinations under the Water Acts, ACTEW was required to pay fees for extracting water from Territory catchments calculated by reference to the amount of water extracted. The determinations increased the water licence fees from 10 cents per kilolitre to 55 cents per kilolitre.

From 1 January 2007, the Territory also required ACTEW to pay a charge imposed by reference to the route length of the infrastructure network for the supply and delivery of water to its customers under the Utilities (Network Facilities Tax) Act 2006 (ACT).

ACTEW was a Territory-owned Corporation within the meaning of the Territory-owned Corporations Act 1990 (ACT). Amongst other things, that Act required the shares in ACTEW to be held on trust for the Territory, gave the Territory’s executive control over ACTEW’s corporate decision-making and regulated its borrowing.

Queanbeyan brought proceedings in the Federal Court of Australia alleging that the Territory had invalidly imposed on ACTEW duties of excise, namely, the water licence fees and the utilities network tax, within the meaning of s 90 of the Constitution, and that these charges were therefore wrongly passed on by ACTEW to Queanbeyan. The primary judge and the majority of the Full Court held that the water licence fees were not taxes. The primary judge also held that the utilities network tax was a duty of excise and therefore invalid. The Full Court disagreed and held that the utilities network tax was not a duty of excise. Queanbeyan appealed, by special leave, to the High Court of Australia. By a notice of contention, ACTEW contended that the water licence fees and utilities network tax were merely internal financial arrangements between ACTEW and the Territory and therefore could not be duties of excise.

The High Court held that the provisions of the Territory-owned Corporations Act indicated that the executive government of the Territory exercised extensive control over the conduct of the affairs of ACTEW. ACTEW was so closely identified with the Territory that it was not distinct from the polity itself. The water licence fees and the utilities network tax, being imposed upon a Territory agency, were merely internal financial arrangements; they could not be “taxes” and thus could not amount to “duties of excise” within the meaning of s 90 of the Constitution. 

 Shoalhaven City Council v Firedam Civil Engineering Pty Limited [2011] HCA 38

Today the High Court held that an expert’s determination of issues in dispute between parties to a construction contract was made in accordance with the contract. The High Court allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales which had held that the expert’s determination was not binding on the parties because it was internally inconsistent.

Firedam Civil Engineering Pty Ltd (“Firedam”) agreed to design and construct a waste water collection and transport system for Shoalhaven City Council (“Shoalhaven”). Under the contract, Firedam claimed an entitlement to variations and payment for additional works, extensions of time for those works and contractual compensation for the extended time. Shoalhaven claimed an entitlement to costs incurred from delayed completion. An expert was appointed under the contract to determine these issues. Under the contract, the parties were required to treat the expert determination as final and binding if the aggregate liability of one party to the other did not exceed $500,000. Where the aggregate liability exceeded $500,000, either party could commence proceedings.

In the determination, the expert refused to allow certain extensions of time claimed by Firedam arising from variations to works. Firedam argued that this was inconsistent with the expert’s use of a discretion conferred on Shoalhaven in the contract to extend the time for the works to be completed. The expert had used Shoalhaven’s discretion to assess Shoalhaven’s claim for compensation for Firedam’s delays to allocate responsibility for delays between Shoalhaven and Firedam.

The primary judge dismissed Firedam’s claim to a declaration in the Supreme Court of New South Wales that the expert’s determination did not bind the parties. The Court of Appeal disagreed. Shoalhaven appealed to the High Court by special leave.

The High Court held that the expert had adequately explained that he had used Shoalhaven’s discretion to extend time as a device to allocate responsibility for delay caused by Shoalhaven. The Court held that that was not inconsistent with the expert’s refusal to allow Firedam’s claimed extensions of time. The High Court therefore held that the Court of Appeal erred and reinstated the orders of the primary judge.

Tasty Chicks Pty Limited & Ors v Chief Commissioner of State Revenue [2011] HCA 41

Today the High Court held that a review by a judge of the Supreme Court of New South Wales from a decision of the Chief Commissioner of State Revenue (“the Commissioner”) disallowing an objection to an assessment for pay-roll tax, was not limited to considering whether the Commissioner had erred on the materials before him and failed to make the objection decision according to law. The High Court allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales, which had held that the right of review was so limited.

The fourth and fifth appellants, Mr and Mrs Souris, conducted in partnership a chicken meat processing business (“the Firm”). The third appellant (“Souris Holdings”) owned premises, portions of which were separately let to the Firm, the first appellant (“Tasty Chicks”) and the second appellant (“Angelo Transport”).

The Pay-roll Tax Act 1971 (NSW) (“the Pay-roll Tax Act “) and the Taxation Administration Act 1996 (NSW) (“the Administration Act”) contain “grouping” provisions. These are designed to counter tax avoidance effected by using additional entities to split business activities so that each entity attracts the benefit of pay-roll tax thresholds. The grouping provisions allow the Commissioner to treat separate entities as a single entity for pay-roll tax purposes. The “de-grouping” provisions could be applied by the Commissioner if it were unreasonable to apply the “grouping” provisions. The appellants objected to assessments under the Pay-roll Tax Act and the Administration Act which related to three periods: 1 July 2001 — 30 June 2003 (“the first period”); 1 July 2003 — 30 June 2005 (“the second period”); and 1 July 2005 — 30 June 2007 (“the third period”). The assessments were based upon the Commissioner’s grouping of the appellants. In effect, the appellants challenged the Commissioner’s refusal to “de-group” Tasty Chicks, Angelo Transport and the Firm.

Section 97 of the Administration Act provided that a taxpayer could apply to the Supreme Court of New South Wales for a “review” if dissatisfied with the Commissioner’s determination of an objection made under Div 1 of Pt 10.

Section 100(2) of the Administration Act provided that, on an application for review before the Supreme Court, “the applicant’s and respondent’s cases … are not limited to the grounds of the objection” that were before the Commissioner. Section 101(1)(b) of the Administration Act relevantly provided that the court or tribunal dealing with the application for review could make an assessment or other decision in place of the assessment or other decision to which the application related.

Section 19(2) of the Supreme Court Act 1970 (NSW) had the effect that proceedings in the Supreme Court under s 97 of the Administration Act were an “appeal” for the purposes of the Supreme Court Act if so described in the Administration Act. Section 97(4) of the Administration Act provided that a review by the Supreme Court was taken to be an appeal for the purposes of the Supreme Court Act and the regulations and rules made under that Act, except as otherwise provided by that Act or those regulations or rules.

The primary judge set aside the Commissioner’s disallowance of the appellants’ objections. The primary judge held that the Commissioner was not entitled to apply the “grouping” provisions in relation to the first period. In relation to the second and third periods, the primary judge applied the de-grouping provisions. In applying the de-grouping provisions, the primary judge held that the Court was entitled to re-exercise the Commissioner’s powers. The Court of Appeal allowed the Commissioner’s appeal, holding that an applicant for review of a decision not to de-group had to establish that the Commissioner erred on the materials before him.

The High Court unanimously held that, when all the above provisions were read together, the primary judge’s view of the Supreme Court’s jurisdiction and powers was correct. The High Court held that the Court of Appeal erred in considering that the jurisdiction and powers conferred upon the Supreme Court required the taxpayers to show that the Commissioner had erred on the materials before him and that the exercise of discretion by the Commissioner was vitiated by error.

Westport Insurance Corporation & Ors v Gordian Runoff Limited [2011] HCA 37

Today the High Court allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales and reinstated orders of the primary judge setting aside an arbitral award.

On 10 October 2008, in an arbitration conducted under the Commercial Arbitration Act 1984 (NSW) (“the Arbitration Act”), arbitrators delivered the arbitral award in favour of Gordian Runoff Ltd (“Gordian”). The award determined the rights of the parties to treaties for reinsurance (“the treaties”) and the effect of s 18B(1) of the Insurance Act 1902 (NSW) (“Insurance Act”) upon the obligation of Westport Insurance Corporation and four other reinsurers (“the reinsurers”) under the treaties to indemnify Gordian.

Gordian was an underwriter of professional indemnity insurance and directors and officers liability (“D&O”) insurance. One D&O insurance policy was written for FAI Insurance Ltd (“FAI”), insuring for claims for prior wrongful acts occurring before 31 May 1999 and allowing claims to be made and notified for seven years thereafter (“the FAI policy”).

In the arbitration, the dispute between the parties turned upon whether the liabilities of Gordian for claims under the FAI policy were reinsured under the treaties between Gordian and the reinsurers. The central issue was whether the reinsurance treaties covered the FAI policy, given that it covered claims made and notified to Gordian within an extended period of seven years, rather than three years which was said to be the usual period for making claims under the reinsurance treaties. The reinsurers had not been aware of the existence of the FAI policy until 23 February 2001.

The treaties required the dispute to be decided by arbitration in accordance with, and subject to, the Arbitration Act.

Section 18B(1) relevantly provides that the insured shall not be disentitled to be indemnified by the insurer only by reason of any exclusion clause if, on the balance of probability, “the loss in respect of which the insured seeks to be indemnified was not caused or contributed to by the happening of those events or the existence of those circumstances, unless in all the circumstances it is not reasonable for the insurer to be bound to indemnify the insured”. The loss in respect of which Gordian sought to be indemnified was its liability on the three year claims. The “particular circumstance” was that the FAI policy covered claims which were made and notified to Gordian in a seven, not three, year period.

Section 29(1) of the Arbitration Act required the arbitrators, relevantly, to make the award in writing and state the reasons for making the award. Under s 38(2), a proceeding described as “an appeal” lay to the Supreme Court “on any question of law arising out of an award”.

In their reasons for the award, the arbitrators were not persuaded that the reinsurance treaties covered the FAI policy. However, they found that s 18B(1) of the Insurance Act applied to contracts of reinsurance at the time of the arbitration and, as a result, the reinsurance treaties covered Gordian’s liability under the FAI policy in relation to the three year claims.

The reinsurers appealed to the Supreme Court of New South Wales. The primary judge set aside the arbitral award on the basis that the arbitrators had failed to recognise that the agreement by the reinsurers to extend cover under one of the reinsurance treaties was not a limitation or exclusion in the sense contemplated by s 18B(1) of the Insurance Act. The Court of Appeal allowed Gordian’s appeal from the decision of the primary judge and refused leave to the reinsurers to “appeal” against the award. The reinsurers appealed by special leave to the High Court.

A majority of the High Court held that the arbitrators, in relying on s 18B of the Insurance Act, were obliged to explain why the steps in that provision were satisfied. The Court held that there was no indication of factual findings in the reasons for the award supporting the inapplicability of the proviso nor supporting its application. The result of the inadequacy of reasons was that the award was set aside. Their Honours also held that s 18B did not apply because the treaties did not exclude or limit the reinsurers liability to indemnify Gordian because the FAI policy was for seven years.

Roy Morgan Research Pty Ltd v Commissioner of Taxation & Anor [2011] HCA 35

Today the High Court dismissed an appeal by Roy Morgan Research Pty Ltd against the decision of the Full Court of the Federal Court of Australia which had upheld the constitutional validity of the Superannuation Guarantee (Administration) Act 1992 (Cth) (“the Administration Act”) and the Superannuation Guarantee Charge Act 1992 (Cth) (“the Charge Act”).

The challenged legislation imposes the superannuation guarantee charge (“the Charge”) on an employer who fails to provide to all employees a prescribed minimum level of superannuation, specified in the Administration Act. Any shortfall created by the employer’s failure to meet the minimum level in full becomes the Charge, which is levied on the employer by the Charge Act. The Charge Act does no more than impose the Charge and fix its rate. The Administration Act deals with the incidence, assessment and collection of the Charge.

The Charge is a debt due to the Commonwealth and payable to the respondent, the Commissioner of Taxation. It includes a component for interest and an administration cost. The revenue raised by the Charge is to be paid into the Consolidated Revenue Fund. The lesser of the employee’s entitlement and the amount of the Charge actually paid by the employer is then to be paid out to a superannuation fund for the benefit of the relevant employee. The result is to supply an incentive to employers to make contributions to superannuation for their employees without incurring the Charge.

The appeal to the High Court concerned the power of the Parliament to make laws with respect to taxation under s 51(ii) of the Constitution. The appellant challenged the validity of the provisions in the Administration Act and the Charge Act dealing with the Charge. The appellant argued that the Charge was not a “tax” because it was not imposed for “public purposes”. This was said to be because the Charge conferred “a private and direct benefit” on the relevant employees. It followed, the appellant argued, that neither the Charge Act nor the Administration Act was a law with respect to taxation within the meaning of s 51(ii), and that the legislation establishing the Charge and providing for its administration was invalid.

The High Court held unanimously that the Charge was a tax, and that the appellant’s constitutional challenge to the Administration Act and the Charge Act failed. The receipt of funds into the Consolidated Revenue Fund established that the Charge was imposed for “public purposes”. Once the Charge is paid into the Consolidated Revenue Fund its identity is lost. The funds raised by the Charge are thereafter available under s 83 of the Constitution for an appropriation to be spent on any purpose for which the Commonwealth may lawfully spend money. Where other necessary constitutional criteria of a tax are met, as they were in this case, the receipt of funds into the Consolidated Revenue Fund establishes the character of the Charge as a valid tax.

Lithgow City Council v Jackson [2011] HCA 36

Today the High Court allowed an appeal against the decision of the Court of Appeal of the Supreme Court of New South Wales which had upheld a claim in negligence by Mr Craig William Jackson against Lithgow City Council.

On 18 July 2002, Mr Jackson was found unconscious and badly injured in a concrete drain in an area of parkland in Lithgow, New South Wales. The western end of the drain had a 1.41m vertical face topped by a small retaining wall partially concealed by foliage. Mr Jackson brought proceedings in negligence against Lithgow City Council, arguing that his injuries were caused by tripping from the small retaining wall. Mr Jackson’s injuries prevented him from recalling how he came to be injured, and he sought to rely on a statement contained in a record made by the ambulance officer or officers summoned to assist him, which was: “? Fall from 1.5 metres onto concrete” (“the Statement”).

The trial judge relevantly found that Mr Jackson had not established whether his injuries were caused by Lithgow City Council’s breach of duty, because he had not established that he had fallen over the western vertical face after walking over it, as distinct from stumbling down one of the sloping sides, or standing on the top of the northern face and losing his balance. Her Honour did not refer to the Statement in her reasons.

On appeal to the New South Wales Court of Appeal, the appeal books before the Court truncated the question mark in the Statement, and the Court considered the truncated statement to be an opinion, admissible under s 78 of the Evidence Act 1995 (NSW) (“the Act”), that Mr Jackson had fallen down the vertical western face of the drain. The Statement was crucial to their Honours’ conclusion that Mr Jackson had established causation.

Following a grant of special leave by the High Court, an appeal by the Council was heard instanter and allowed, and the matter was remitted to the Court of Appeal for a rehearing in light of the accurate trial record. On the rehearing, the Statement, including the question mark, was held to be an admissible opinion, and the Court adhered to its original conclusion that Mr Jackson had proved causation. Basten JA concluded that the evidence established causation even without the Statement.

Two issues were presented in the High Court. The first was whether the Court of Appeal in its second decision was correct to hold that the Statement was admissible. The second was whether, even if the Statement was not admissible, the conclusion that causation was established could be supported by other evidence.

The High Court held unanimously that the Court of Appeal erred in treating the Statement as an admissible opinion under s 78 of the Act. The Statement was so ambiguous as to be irrelevant.

In any event, the nature of the Statement was such that it was not possible to find positively that it stated an opinion. Moreover, even if it was assumed that the Statement did express an opinion, it was not one which satisfied s 78 of the Act. The Court held by majority that Mr Jackson had not established causation because the conclusion that a fall from the vertical western face of the drain caused his injuries could not be drawn on the balance of probabilities.

Momcilovic v The Queen & Ors [2011] HCA 34

Today the High Court allowed an appeal by Ms Vera Momcilovic against her conviction for drug trafficking contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (“the Drugs Act”), but held that s 71AC is not invalid under s 109 of the Constitution for inconsistency with the trafficking offence provision of the Criminal Code (Cth).

In 2008, Ms Momcilovic was convicted, following trial by jury in the County Court of Victoria, of trafficking in methylamphetamine contrary to s 71AC of the Drugs Act. The prosecution case was that drugs were found in an apartment that Ms Momcilovic owned and lived in. However, Ms Momcilovic lived in the apartment with her partner, Mr Velimir Markovski, who had been convicted in a separate trial of trafficking in methylamphetamine and cocaine. At her trial, Ms Momcilovic and Mr Markovski gave evidence that she had no knowledge of the presence of drugs in the apartment. In order to establish possession of the drugs by Ms Momcilovic, the prosecution relied upon s 5 of the Drugs Act, which provided that “any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him … unless the person satisfies the court to the contrary”. The jury was directed that, once it was proved that Ms Momcilovic was in occupation of the apartment, she was deemed to be in possession of the drugs unless she satisfied the jury that she did not know of their presence.

On appeal to the Court of Appeal of the Supreme Court of Victoria, Ms Momcilovic submitted that on its ordinary construction or, alternatively, pursuant to the interpretive rule created by s 32(1) of the Charter, s 5 of the Drugs Act did not impose on her any onus of proof. Alternatively, she submitted that the provision should be interpreted as imposing an evidential onus rather than a legal onus. Section 32(1) of the Charter provides that “[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights”. The Court of Appeal refused Ms Momcilovic leave to appeal against her conviction. The Court of Appeal also made a declaration of inconsistent interpretation pursuant to s 36(2) of the Charter, on the basis that s 5 of the Drugs Act could not “be interpreted consistently with the presumption of innocence under s 25(1) of the Charter”.

On appeal to the High Court, Ms Momcilovic raised several issues of constitutional importance in seeking to have her conviction quashed, including:

• the validity of the Charter, in particular s 32(1) which conferred a statutory interpretation function upon courts, and s 36 which conferred on the Supreme Court the power to make a declaration of inconsistent interpretation where the Court was of the opinion that a statutory provision could not be interpreted consistently with a human right;
• whether the offence of trafficking contrary to s 71AC of the Drugs Act is invalid under s 109 of the Constitution for inconsistency with the offence of trafficking contrary to s 302.4 of the Criminal Code (Cth);
• the construction of s 71AC of the Drugs Act, and whether s 5 is applicable to the offence.

The High Court, by majority, allowed Ms Momcilovic’s appeal against her conviction. French CJ, Gummow, Hayne, Crennan and Kiefel JJ held that s 5 did not apply to the offence of trafficking contrary to s 71AC of the Drugs Act. Their Honours held that, as a result, Ms Momcilovic’s trial had miscarried because the jury had been misdirected. Bell J held that s 5 did apply to s 71AC, but nevertheless that the jury had been misdirected. Further, French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ held that s 71AC of the Drugs Act was not invalid for inconsistency with the trafficking offence provision of the Criminal Code (Cth). The Court quashed Ms Momcilovic’s conviction, set aside her sentence, and ordered that a new trial be had.

In relation to the validity of the Charter, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that s 32(1) operated as a valid rule of statutory interpretation, which is a function that may be conferred upon courts. With respect to the declaration of inconsistent interpretation made by the Court of Appeal, French CJ and Bell J held that s 36 of the Charter was valid but that there could be no appeal to the High Court from a declaration made under that section. Crennan and Kiefel JJ held that s 36 of the Charter was valid but that a declaration of inconsistent interpretation should not have been made by the Court of Appeal in this proceeding. Gummow, Hayne and Heydon JJ held that s 36 was invalid for impermissibly impairing the institutional integrity of the Supreme Court. As a majority of the Court was of the view that the declaration of inconsistent interpretation made pursuant to s 36 either was invalid or ought not to have been made by the Court of Appeal in this proceeding, the Court ordered that the declaration be set aside.

The Attorney-General for Victoria was ordered to pay two-thirds of Ms Momcilovic’s costs.

Jemena Asset Management (3) Pty Ltd & Ors v Coinvest Limited [2011] HCA 33

Today the High Court dismissed an appeal from a decision of the Full Court of the Federal Court which held that the Construction Industry Long Service Leave Act 1997 (Vic) (“the State Act”) was not inconsistent with federal industrial instruments made under the Workplace Relations Act 1996 (Cth) (“the Commonwealth Act”) in relation to long service leave (“the federal instruments”) within the meaning of s 109 of the Constitution.

The appellant companies carried on businesses in the operation of electricity infrastructure assets. In the course of business, the appellants employed persons to perform construction work and were bound by the federal instruments. The federal instruments imposed obligations on employers to grant, and pay for, long service leave in relation to their qualifying employees and governed the circumstances in which such entitlements would accrue. The Commonwealth Act provided for the paramountcy of industrial instruments made under federal legislation over State laws.

The State Act provided for a scheme for portable long service leave benefits in the construction industry. The respondent was the trustee of the Construction Industry Long Service Leave Fund established by the State Act under a trust deed (“the trust deed”). The State Act obliged the appellants to register with the respondent and pay the respondent a long service leave charge in respect of every worker employed by them to perform construction work. Fund Rules made by the respondent under the trust deed provided that every worker was entitled to a long service leave benefit in respect of continuous service performing construction work for an employer.

On 24 February 2006 the respondent requested the appellants to provide relevant details of their workers and to make payments pursuant to the State Act. Between May 2006 and July 2007, the respondent issued the appellants with notices requesting information regarding certain of the appellants’ employees. On 3 October 2007, the respondent advised the second appellant that it would commence proceedings against the second appellant in relation to its failure to comply with one of the notices.

On 5 October 2007 the appellants brought proceedings against the respondent in the Federal Court because they feared imminent prosecution under the State Act. The issue was whether the State Act, including the scheme established under it, was inconsistent with certain provisions of the Commonwealth Act embodied in the federal instruments and therefore invalid by reason of s 109 of the Constitution. The primary judge and the Full Court of the Federal Court held that the State Act was not inconsistent with the federal instruments within the meaning of s 109 of the Constitution. The appellants appealed, by special leave, to the High Court.

The High Court held that the State Act was not inconsistent with the federal instruments within the meaning of s 109 of the Constitution. The Court held that employees’ entitlements to long service leave benefits under the State Act could only be in the form of payment from the Fund. There was no provision for the grant of any long service leave, a subject which was covered by the federal instruments. While the federal instruments dealt with all the obligations and entitlements of employers and employees in respect of the grant of, and payment for, long service leave arising in the employment relationship, they did not deal with, or even mention, portable long service leave benefits for workers in continuous service within the construction industry. The Court also held that the State Act did not undermine an employer’s obligations under the federal instruments to grant, and pay for, long service leave or an employee’s entitlement to receive such leave.

 

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Barcare Bootcamp — Testimonials

“I’m not fit at all, but I really enjoy this part of my life. I wanted to create a routine of exercise in my excruciatingly busy week. I had no fitness to start with and no enthusiasm.  Kent Cameron of CBD FITNESS, our trainer is patient, encouraging and inspiring. At first I could hardly move the next day, but I recommend it because you feel defended, strong the day after, able to handle more at work, eat with more awareness, and sleep better.  Just getting out of the grind and on to the ground is very worthwhile, but to have that extra energy is great.”

Jane Oliver, HR Manager, Aboriginal & Torres Strait Islander Legal Service (Qld).

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I enrolled in Barcare Bootcamp ten weeks ago and I have been greatly impressed with both the manner in which the sessions have been conducted and the results that I have obtained.  Going from almost no substantial physical exercise to relatively intense regular workouts was not easy, but it was something that I managed to do without injury or illness.  I have been greatly impressed by the way in which the individual needs of members are handled at each session, without detracting from the general focus on obtaining the best possible results.  I would highly recommend Barcare Bootcamp to anyone who wishes to avoid the pains and penalties caused by the generally sedentary aspects of life at the Bar.

Andrew N. S. Skoien – Barrister at Law [Skoien needs a lot of help – Ed.]

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“Bootcamp is great fun.  Kent Cameron (the personal trainer) puts you through your paces with a mixture of cardio and weights, and manages to tailor the sessions for the fitness and strength each participant.  You’re always pushed, but never too far.  Bootcamp is a great way to catch up with your colleagues and get in shape.  It’s also a refreshing way to clear your head and de-stress at the start or end of the day.  Good stuff!”

Steven Hogg — Barrister at Law 

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“I am a late bloomer when it comes to exercise and sports.  I have not been allowed to play sports when growing up because I was a bad asthmatic.  I used to just sit on the sideline and watched others play. I was unfit but not overweight.
 
6 yrs ago I decided to give running a go and loved it, I was never fast but have completed 10-12 k fun runs in a reasonable time over the yrs. I also learnt to cycle 4yrs ago and regularly cycle with 2 other women in the weekends, and have done several long distance rides, which encompassed hills. 
 
Unfortunately 13 months ago, an MRI scan showed slow degeneration of my right knee joint, which has now severely hampered my ability to run.   
 
When the Bar Association advertised the exercise program I was skeptical as to what possibly could any trainer do for me. However I signed up for it, and was hoping that I would meet a PT who could help me to run pain free (if that was realistic) and to improve my endurance on hills when riding! I had some reservations when I signed up.  Having tried the program I love it!
 
Kent is a tremendous PT! He took into account my rehabilitation needs and personalized my training schedule to allow me to maximize my potential.  I am very slowing regaining ability to run with less pain, but the most surprising thing was I have so much more endurance when cycling uphill.  – No more cramps, reduced breathlessness and I am actually enjoying climbing hills! I am definitely sticking to my training with Kent and come September 2011, I will be ready to tackle the hilly holidays in Norway on a bicycle!
 
One other important factor- the people who make up the group I go to twice a week are really great and fun to work out with.  We have different needs but we are a cohesive group.  Kent tries very hard to tailor to all our needs.  He is very encouraging which in turn makes me want to give my very best even though some days when I attend.”
 
Elvira Jorgensen, Barrister, Aboriginal & Torres Strait Islander Legal Service (Qld).

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I recently commenced training with Kent Cameron of CBD Fitness — “Barcare Bootcamp”. Kent is diligent and professional with the group sessions I have undertaken with him to date. He structures the sessions in a manner in which sub-groups are formed to match your level of fitness. Being reasonably fit, I like the challenges Kent implements for me. Notwithstanding the group sessions format, Kent also places emphasis on the individual and the progress of each member of the group is paramount to Kent’s training methods. The members of the group I have trained with are professionals with a sociable and friendly disposition who encourage each other during the sessions. The sessions are in effect a mixture between hard work and friendly banter between participants, which I thoroughly enjoy. The early morning sessions have been a great way to start the day and my energy levels and work productivity have improved as a result.
CBD Fitness has contributed considerably to the recent betterment of my life. I am sure that no matter what your level of fitness may be or what objectives you may wish to achieve from your training, that CBD Fitness will be able to assist you. I strongly vouch for CBD Fitness to assist with all your training needs.

John Castanho Former Lawyer. Now writer and Investor.

Income Protection, Life Insurance, Trauma Insurance

Exercise Boosts Brainpower and Productivity

A recent clinical trial performed by Swinburne University and the Body-Brain Performance Institute showed that investment in a Workplace Vitality program reaps huge rewards.  

  

 

BAQ Mediators Conference 2011

The BAQ Mediators Conference 2011 will be held at the Hyatt Regency Sanctuary Cove from 22-23 October.

Speakers at this year’s conference include:

• Ian Hanger AM QC
• The Hon Robert Fisher QC, Auckland, New Zealand
• Peta Stilgoe, Member, Queensland Civil and Administration Tribunal
• Andrew Crowe S.C.
• The Hon Justice Daubney
• Kathryn McMillan S.C
• Dr Anne Purcell, Psychologist
• Doug Murphy S.C.
• Michael Klug, Partner, Clayton Utz
• The Hon Justice May, Family Court of Australia
• Charles Brabazon QC, Retired Judge of the District Court of Queensland
• Wallace Campbell

To download the full program and registration form visit the CPD website.  

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QCAT Bar Update 2011

Date: Friday 4 November 2011

Time: 12.45pm — 1.45pm *Light lunch will be provided

Venue: Gibbs Room, Bar Association of Queensland

Presenters: The Hon Justice Wilson & panel members

Accreditation details: BAQ3111, 1 CPD point, advocacy strand

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CLI Series: Criminal Law Reforms: One Year on

Date: Thursday 10 November 2011

Time: 5.30pm — 7.00pm

Venue: Banco Court, Supreme Court Complex, Brisbane

Presenters:

His Honour Judge Butler AM S.C., Supreme Court of Qld

Mr Peter Davis S.C.,

Mr Anthony Moynihan S.C., Director of Public Prosecutions

Accreditation details: CLI0311, 1.5 CPD points, non allocated strand

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Pupils Session 8: Family Law

Date: Thursday 24 November 2011

Time: 5.30pm — 6.30pm

Venue: Gibbs Room, Bar Association of Queensland

Speakers: The Hon Justice Murphy and The Hon Justice Forrest, Family Court of Australia

Accreditation details: BAQ3211, 1 CPD point, non allocated strand

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ABA Advanced Trial Advocacy Course

Date: 23-27 January 2012

Venue: Melbourne

Accreditation details: ABAC12, 10 CPD points, ethics and advocacy strands

Please click here Hyperlink: http://advocacytraining.com.au/

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EXTERNAL EVENTS

2011 Mayo Lecture: Regulatory Reform

Date: Thursday 6 October 2011

Time: 6.00pm — 7.00pm

Venue: Townsville and Cairns

Accreditation details: JCU111006, 1 CPD point, non allocated strand

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Court of Appeal 20th Anniversary Lecture

Date: Monday 24 October 2011

Time: 5.30pm – 7.00pm

Venue: Banco Court, Supreme Court Complex, Brisbane

Accreditation details: CA111024, 1 CPD point, non allocated strand

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Criminal Law Conference

Date: Thursday 27 October 2011

Time: 9.00am — 5.00pm

Venue: Sebel and Citigate Hotel, King George Square, Brisbane

Accreditation details: QLS111027, 1 CPD point per hour, advocacy and non allocated strands

Please click here for further details http://qls.com.au/pd/events/111027

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WA Lee Equity Lecture

Date: Thursday 18 November 2011

Time: 6.00pm — 7.00pm

Venue: Banco Court, Supreme Court Complex

Accreditation details: QUT111118, 1 CPD point, non allocated strand

Please email rsvplaw@qut.edu.au

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2012 Environmental Law Enforcement Conference

Date: 3 — 7 July 2012

Venue: Dubrovnic, Croatia

Accreditation details: RP120703, 10 CPD points, ethics and advocacy strands

Please email Ralph RPDevlin@halsburychambers.com or Peter peter.kelly@halsburychambers.com for further information