CASE NOTES
Thomas Hurley Case Notes Thomas Hurley, Barrister, Melbourne, For the Law Council of Australia and its Constituents FEDERAL COURT Federal Court Act 1976 (Cth) Allowing appeal by consent In Bradken Ltd v Norcast S.ar.L [2013] FCAFC (8 November 2013) a Full Court reviewed authority as to the circumstances in which an appeal by consent will be allowed under s25(2B) of the Federal Court Act 1976 (Cth). Income tax Section 255 Income Tax Assessment Act 1936 (Cth) In Commissioner of Taxation v Resource Capital Fund IV LP [2013] FCAFC 118 (22 October 2013) a Full Court allowed an appeal from the primary judge concluding that s255 of the Income Tax Assessment Act 1936 (Cth) did not operate in the same was as s218. The Court also concluded there was nothing in s255 to find the term 'money' referred only to Australian currency. Income tax Administration – role of Commissioner’s practice statement In Macquarie Bank Ltd v Commissioner of Taxation [2013] FCAFC 119 (24 October 2013) a Full Court dismissed an appeal against the finding of the primary judge that in assessing tax for past years following an audit, the Commissioner was required by its Law Administration Practice Statement PS LA2011/27 to apply the same view of the law as had been held at the relevant time. The Full Court considered the role of the practice statement and observed it cannot affect the duty of the Commissioner to apply the law as it is understood. Role of summary dismissal procedure in s11A of the Federal Court of Australia Act 1976 (Cth) for want of 'reasonable prospects of success' considered. HIGH COURT Duty of prosecutor to call relevant witnesses In Diehm v Director of Public Prosecutions (Nauru) [2013] HCA 42 (30 October 2013) a bench of three (French CJ, Kiefel, Bell
JJ jointly) concluded that failure of the prosecution to call a Nauruan police officer present at the search of the accused’s house was not a breach of any duty of the prosecutor or the Court to ensure there was no miscarriage of justice. Appeal dismissed. Motor accidents (NSW) Damages – economic loss – value of services provided gratuitously In Daly v Thiering [2013] HCA 45 (6 November 2013) Mr T was seriously injured in a motor vehicle accident involving D in NSW in 2007. Many of Mr T’s needs were provided by his mother Mrs T under an arrangement between the mother and the Lifetime Care and Support Agency NSW. In an action for damages Mr T included a claim for the value of the care provided by Mrs T. In answer to a preliminary question the primary judge concluded that s130A of the Motor Accidents Compensation Act 1999 (NSW) did not preclude Mr T’s claim for the value of services provided by his mother. On appeal by D this was reversed by the Court of Appeal (NSW). The High Court in a joint judgment allowed an appeal by D to reach the same result as the Court of Appeal but by providing a different answer to the question: Crennan, Kiefel, Bell, Gageler, Keane JJ jointly. Native Title Right to take fish – relationship between state laws regulating activity and native title rights In Karpany v Dietman [2013] HCA 47 (6 November 2013) K and others were aborigines charged with taking undersize fish contrary the Fisheries Management Act 2007 (SA). The Magistrates’ Court at Kadina accepted they had fished according to traditional custom and acquitted them. This was reversed by the Full Court of the Supreme Court of SA. Their appeal to the High Court was allowed. The High Court concluded that state legislation did not extinguish native title to take fish but only regulated it: French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ jointly. Appeal allowed. Orders of Full Court set aside.
Practice Privileged documents inadvertently discovered In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 (6 November 2013) in 2011 solicitors acting for the appellants inadvertently disclosed about 13 privileged documents in discovery of 60,000 in proceedings in the Supreme Court of NSW. In answer to a request that the inadvertently released documents be returned, the solicitors for the respondents claimed privilege had been waived. The appellants commenced proceedings in the equitable jurisdiction seeking injunctive relief. The primary judge found the disclosure of nine documents was inadvertent and ordered their return. The Court of Appeal (NSW) allowed the respondent’s appeal on the basis the mistake would not have been obvious. The High Court in a joint judgment restated the matters raised in AON Risk Services Australia Ltd v Australian National University (2009) CLR 175 as to the need after the commencement of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) to conduct litigation to achieve just, quick and cheap results: French CJ, Kiefel, Bell, Gageler, Keane JJ. The Court considered the dispute should not have been raised in proceedings in equity and the inadvertently released documents should have been ordered to be returned. Appeal allowed. Thomas Hurley is a Victorian barrister, phone (03) 9225 7034, email tvhurley@ vicbar.com.au. The full version of these judgments can be found at www. austlii.edu.au
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