Friday, July 6, 2012

Recent Civil, Commercial & Criminal Law Decisions

Corporations

  • Duties of directors
  • Evidentiary status of minutes
In ASIC v Hellicar [2012] HCA 17 (3 May 2012), the High Court decided that the Court of Appeal (NSW) had erred in concluding that the minutes of a board meeting of a corporation did not establish what had occurred at the meeting that was minuted. The court also found the Court of Appeal had erred in holding that, in proceedings under the Corporations Act 2001 (Cth) against the directors for a civil penalty said to be proved by the minutes of a board meeting prepared by the corporate solicitor, ASIC was required to call the solicitor: French CJ with Gummow, Hayne, Crennan, Kiefel and Bell JJ jointly; sim Heydon J. Appeal allowed.

Corporations
  • "Officers"
  • When executives and corporate lawyers are "officers"
  • Whether "company secretary and general counsel" an officer
In Shafron v ASIC [2012] HCA 18 (3 May 2012), the High Court concluded that the definition of "officer" in s.9 of the Corporations Act 2001 (Cth) extended to the advisers of those who actually participated in decisions of corporations and they were thereby liable for breach of the duty of officers imposed by s.180 of the Corporations Law 2001(Cth).

Statutes
  • Interpretation
  • Purging rule of industrial association
  • Retrospective operation
Constitutional law
  • Judicial power
  • Act passed to reverse effect of decision of Federal Court
  • Whether usurpation of judicial power
In Australian Education Union v General Manager Fair Work Australia [2012] HCA 19 (4 May 2012), the full court of the Federal Court had held in AEU v Lawlor (2008) 169 FCR 327 that an industrial association could not be registered under the Fair Work (Registered Organisations) Act 2009 (Cth) where its rules did not contain a "purging" provision that prevented membership by ineligible persons. The High Court decided that s.26A of the Act, with s.171A, was enacted to reverse the effect of this decision, validly enacted a statutory "purging" rule and operated to validate the registration of the organisation in question. The High Court considered the retrospective operation of statues, observing that while it would be an impermissible interference with judicial power to set aside a decision of a court, it was permissible to enact legislation that attached different consequences to an event that had been held to have different consequences under a previous state of the law. The High Court did not find it necessary to decide whether the provision impermissibly interfered with judicial power. The application for special leave to appeal against a further decision of a full Federal Court that the association was validly registered was granted but dismissed: French CJ with Crennan and Kiefel JJ; sim Gummow, Hayne, Bell JJ; Heydon J.

Copyright
  • Infringement
  • Authorisation
  • Failure to act
In RoadShow Films Pty Ltd v iiNetLtd [2012] HCA16 (20 April 2012), the High Court concluded that an internet service provider who was notified that its subscribers were downloading films in breach of copyright, and in breach of their agreements with the provider, but took no action after the notification to prevent this, did not 'authorise' any infringement of copyright for s.101 of the Copyright Act (Cth). Appeal against like decision of the full Federal Court dismissed: French CJ with Crennan and Kiefel JJ; Gummow with Hayne JJ. Appeal dismissed.

Criminal law
  • Evidence
  • DNA evidence
In Artugrul v Q [2012] HCA 15 (18 April 2012), evidence was given at Artugrul's trial that he could have been the donor of a hair found in the deceased's fingernail, and that DNA evidence established 1 in 1,600 people would be expected to share the DNA profile but 99.9 per cent were excluded. The High Court dismissed an appeal where Artugrul contended the trial judge had erred in admitting the statistical evidence on the accuracy of DNA analysis expressed in exclusion percentage terms. Validity and application of DNA evidence were considered. Appeal dismissed: French CJ, Hayne, Crennan and Bell JJ jointly; sim Heydon J.

Constitutional law
  • Order of court that prisoner eligible for parole
  • Legislation rendering prisoners of that class ineligible for parole
  • Whether a decision that a prisoner is eligible for parole is a "matter"
In Crump v NSW [2012] HCA 20 (4 May 2012), in 1997 a justice of the Supreme Court of NSW ordered under s.13A of the Sentencing Act 1989 (NSW) that the life sentence for murder imposed on Crump in 1974 (with a recommendation that he never be released) be replaced with a minimum term of 30 years and an additional term of the rest of the offender's natural life. This entitled Crump to apply for a parole. In 2001, s.154A was introduced into the Crimes (Administration of Sentences) Act with the effect of preventing persons in Crump's position from applying for parole. Crump sought a declaration from the High Court in its original jurisdiction that s.154A was invalid as an impermissible legislative intervention on the operation of the court order made in 1997. All members of the High Court concluded that s.154 was valid: French CJ; Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ jointly.

Federal Court practice

  • Costs
In Austin, Nichols & Co Inc v Lodestar Anstalt (No 2) [2012] FCAFC 72 (17 May 2012), a full court considered when an order of the court that had not been entered could be varied and whether the entitlement under FCR Ord 23 r.3(2) of a successful party to indemnity costs on recovering more than an offer of compromise was lost by delay in claiming the costs after they were omitted from the court's order by oversight.

Federal Court practice
  • Declarations
  • Contradictor
In ACCC v MSY Technology Pty Ltd [2012] FCAFC 56 (19 Apr 2012), a full court considered when the court would make declarations "by consent" without a proper contradictor.
Industrial law
  • Costs
In CFMEU v CSBP Ltd (No 2) [2012] FCAFC 64 (7 May 2012), a full court dismissed the appeal brought by the CFMEU. The union contended that the general power of the court to award costs given by s.43 of the Federal Court of Australia Act 1976 (Cth) was excluded by the effect of s.570 of the Fair Work Act 2009 (Cth) or by reason of the Fair Work (Registered Organisations) Act 2009 (Cth).The court did not accept this submission.

Administrative law
  • Jurisdictional fact
In Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65 (10 May 2012), a full court concluded Fair Work Australia did not make a jurisdictional error in ordering in October 2011 under s.424(1) of the Fair Work Act 2009 (Cth) that otherwise protected industrial action be terminated. Application for judicial review of decision of Fair Work Australia dismissed.
Industrial law
  • Adverse treatment of union office holders
In Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63 (4 May 2012), a full court reviewed authority as to how an allegation that an employer had altered a worker's position adversely because the worker held union office was established.

Copyright
  • Rebroadcast of material by subscriber
In National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd [2012] FCAFC 59 (27 April 2012), a full court concluded the trial judge had erred in finding that a subscriber who recorded a sporting event transmitted by a phone company was the maker of a "film" under the Copyright Act 1968 (Cth). The full court concluded it was either the provider, or the provider and the subscriber, who did this and not the subscriber alone. The full court also concluded the provider could not bring itself within the "private and domestic use defence" found in s.111 of the Copyright Act.

Corporations
  • Management
  • Leave for bankrupt to be involved in management of company
In Watts re Watts [2012] FCAFC 61 (2 May 2012), a full court declined to allow Watt's application to adduce further evidence and dismissed his appeal against the decision of the primary judge refusing to grant him leave under s.206G of the Corporations Act 2001 (Cth) to manage a corporation while bankrupt.

Corporations
  • Winding up
  • Just and equitable grounds
  • Winding up deadlocked solvent company
In Hillman v Ample Source International Ltd (No 2) [2012] FCAFC 73 (18 May 2012), a full court concluded the power to wind up a corporation given by s.232 and s.233 of the Corporation Act 2001 (Cth) was not to be interpreted as subject to any presumption that solvent companies were not to be wound up at all or only in exceptional circumstances. The full court observed each winding up order is made in the exercise of discretion. It found that the order of the trial judge to wind up a solvent but deadlocked company being run unfairly to the minority in a commercial sense was not inappropriate in the circumstances presented. Appeal dismissed.

(*Extracts from the Case Notes of THOMAS HURLEY)

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