Friday, March 30, 2012

Recent Cases: Criminal Law & Civil/Commercial Law

HIGH COURT
□Abuse of process
□Prosecution of person brought to Australia after illegal expulsion from Solomon Islands with assistance of Australian authorities.
In Moti v Q [2011] HCA 50 (7 December 2011) the High Court ordered that the further prosecution of charges of child molestation against M be permanently stayed where he had been brought to Australia following his illegal expulsion from the Solomon Islands that was achieved with the assistance of Australian government officials: French CJ with Gummow, Hayne, Crennan, Kiefel and Bell JJ; Heydon J. Appeal allowed.

(From the Case Notes of Thomas Hurley)

COURTS
□Practice
□Procedure on suggestion judge is biased
□Contempt of court
In Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 (1 December 2011) the High Court considered when a judge could be said to be biased for having allowed an ex parte application by a party to a proceeding. The High Court concluded there was not a reasonable apprehension of bias. The Court considered whether a party waived the right to complain about the bias by allowing the trial to proceed but did not decide the issue. The Court also concluded that in the circumstances it was not an abuse of process for a party that had brought arbitration proceedings in London alleging breach of fiduciary duties by a solicitor to commence proceedings in a court in Australia on the same issue: Gummow ACJ with Hayne, Crennan and Bell JJ; Heydon J sim.

(From the Case Notes of Thomas Hurley)

CRIMINAL LAW
□ Trial
□ Jury misdirection in group criminal activity
In Handlen v Q; Paddison v Q [2011] HCA 51 (8 December 2011) the High Court allowed an appeal where the jury was misdirected consequent on the mistaken assumption by the parties and the trial judge that guilt of drug importation offences could be established by proof the accused were parties to a joint criminal enterprise to bring the drugs into Australia. The High Court concluded, contrary to the conclusion of the Queensland Court of Criminal Appeal that a miscarriage of justice had occurred and the guilt of the appellants was not inevitable. Appeals allowed: French CJ, Gummow, Hayne, Crennan, Kiefel with Bell JJ; contra Heydon J.
(From the Case Notes of Thomas Hurley)

CRIMINAL LAW
Crown appeal against sentence
In Green v Q [2011] HCA 49 (6 December 2011) the High Court allowed an appeal against orders made in a Crown appeal against sentence where a NSW Court of Appeal of five members increased the sentence imposed. Consideration of the role of Crown appeals against sentence and whether the orders made on appeal created disparity in the sentences imposed on other offenders: French CJ with Crennan, Kiefel JJ; contra Heydon J and Bell J. Appeals allowed.

(From the Case Notes of Thomas Hurley)

EVIDENCE
□Expert evidence
□Causation of mesothelioma from exposure to asbestos
In Amaca Pty Ltd v Booth [2011] HCA 53 (14 December 2011) the High Court considered the difference between the “risk” of harm and the “cause” of the harm and when causation of an event could be established by reference to increased risk of it. The Court concluded the Dust Diseases Tribunal of NSW had not erred in finding the malignant pleural mesothelioma that B suffered from had been contracted by exposure to asbestos in brake linings he had worked on as a motor mechanic with the appellant employers: French CJ; Gummow, Hayne, Crennan JJ; contra Heydon J. The Court concluded that the finding that all exposure to chrysotile asbestos other than trivial exposure materially contributes to mesothelioma was supported by the evidence led by B. Appeal against decision of NSW Court of Appeal dismissed.

(From the Case Notes of Thomas Hurley)

EVIDENCE
□Privilege
□Whether common law recognises spouse privilege
In Australian Crime Commission v Stoddart [2011] HCA 47 (30 November 2011) the High Court concluded that a spouse was not entitled to refuse to answer questions put in an examination by the Australian Crime Commission by reason of any privilege at common law protecting communications between spouses: French CJ with Gummow J; Crennan, Kiefel and Bell JJ; contra Heydon J. Appeal allowed.

(From the Case Notes of Thomas Hurley)

MIGRATION
□Visas
□ Criterion
In Shahi v Minister for Immigration and Citizenship [2011] HCA 52 (14 December 2011) the High Court concluded a delegate of the minister made a jurisdictional error in concluding a person had ceased to be a member of a family unit for the purposes of the Migration Regulations where he had turned 18 between the time the application was lodged and when it was decided: French CJ, Gummow, Hayne, Bell JJ; contra Heydon J.

(From the Case Notes of Thomas Hurley)

FEDERAL COURT
COMPETITION
□Merger □ Market
In ACCC v Metcash Trading Ltd [2011] FCAFC 151 (30 November 2011) a
Full Court
considered the operation of the competition provisions in s50 of the Competition and Consumer Law Act 2010 (Cth). Consideration of the concepts of market and competition and standard of proof required for orders to be made. An appeal by the ACCC against the primary judge’s finding that there was not a separate market for the wholesale supply of packaged groceries to independent supermarkets was dismissed.

(From the Case Notes of Thomas Hurley)

CORPORATIONS
□Directors
□Fiduciary Duties
In Omnilab Media Pty Ltd v Digital Cinema Network Pty Ltd [2011] FCAFC 166 (19 December 2011) a Full Court dismissed an appeal against findings by the primary judge that a company executive breached statutory and fiduciary duties to the company by diverting business opportunities to a rival and that the rival was liable for being an accessory to a breach of trust. Consideration of the duties imposed by ss180–184 of the Corporations Act 2001 (Cth) and the knowledge required to be proved to establish liability as an accessory under Barnes v Addy (1874) LR 9 Ch App 244.

(From the Case Notes of Thomas Hurley)

COURTS
□ Appeal from interlocutory decision that effectively determines proceeding
In Samsung Electronics Ltd v Apple Inc. [2011] FCAFC 156 (30 November 2011) a Full Court reviewed authority as to the purpose of interlocutory relief and the principles to be applied in appeals from interlocutory orders that effectively determined the proceeding. The Court reviewed the approaches found in Beecham Group Ltd v Bristol Laboratories [1968] HCA 1 and American Cyanamid Co. v Ethicon [1975] UKHL 1. The Court concluded that the trial judge had erred in making the orders and allowed the sale of the disputed items said to infringe a patent pending the trial on the condition that records were kept.

(From the Case Notes of Thomas Hurley)

COURTS
□Practice □ injunction
□ Release from undertaking as to damages
In Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth (No 3) [2011] FCAFC 165 (21 December 2011) a
Full Court
concluded a party should not have been released from the undertaking as to damages that might be caused by the orders.
 
(From the Case Notes of Thomas Hurley)
 
EVIDENCE
□Discovery
□ Whistleblower
□ Public interest immunity
In Police Federation of Australia v Nixon [2011] FCAFC 161 (12 December 2011) a Full Court considered when the provisions of the Whistleblowers Protection Act 2001 (Vic) prevented discovery of documents by the Chief Commissioner of Victoria Police in a claim she had disadvantaged an officer by reason of his union position contrary to s80 of the Workplace Relations Act 2006 (Cth). Consideration of the consequences of the primary judge failing to give reasons that adequately explained his orders.

(From the Case Notes of Thomas Hurley)
 
INDUSTRIAL LAW
Dismissal following failure to answer questions
In Villani v Holcim (Australia)Pty Ltd [2011] FCAFC 155 (2 December 2011) a Full Court concluded that Fair Work Australia did not make any jurisdictional error on finding a dismissal of an employee was not harsh, unjust or unreasonable where the employee failed to answer questions about whether he had been involved in a conflict of interest. The Court observed that the finding of whether a dismissal was harsh etc. was the responsibility of Fair Work Australia and the enquiries were not unrelated to the contract of employment.

(From the Case Notes of Thomas Hurley)

INTELLECTUAL PROPERTY
□Trade marks
□ Infringement
In Idameneo (No 789) Ltd v Symbion Pharmacy Services Pty Ltd [2011] FCAFC 164 (15 December 2011) a Full Court considered the primary judge had erred in considering the question of whether trade marks were infringed within s120 of the Trade Marks Act 1995 (Cth) by parties in a specialised market without evidence from those in the market.
(From the Case Notes of Thomas Hurley)

No comments:

Post a Comment