Wednesday, December 01, 2004

High Court Latest - Special Leave Granted

The following cases were granted special leave to appeal to the High Court on 30 November:
  • Vairy v Wyong Shire Council
  • Mulligan v Coffs Harbour City Council (joined appeals - liability for 'obvious' risks in negligence law)
  • Trenwick International Limited v Tanevski
(obligations under a public liability insurance policy)
  • The Queen v Lavender
(manslaughter by criminal negligence - mens rea and standard of care)
  • Bankstown City Council v Alamdo Holdings Pty Limted
(nuisance - immunity under the Local Government Act)

The following case was granted special leave on 19 November:

  • WAAG v Minister for Immigration and Multicultural and Indigenous Affairs

Tuesday, November 30, 2004

NSWCA says something sensible

A recent NSWCA case confirms a tendency that we at the Branch have noticed among the NSW judiciary: first, the District Court -- usually an ADCJ -- will come up with some crank theory about why all defendants are liable in all circumstances whatsoever; second, the Court of Appeal will unanimously reverse, saying "What were you thinking!"

This has now happened in Parissis v Bourke [2004] NSWCA 373 (23 November 2004). The successful appellants/defendants were the parents of a young adult who had a social barbeque at their premises. After the parents retired for the night, certain inebriated (adult) guests caused an explosion as they attempted to relight the barbeque with methylated spirits. Another guest was injured in the process, and successfully sued the parents for their failure to supervise, which was said to have caused her injuries.

In reversing, the NSWCA drew attention to the fact that the alleged duty was (a) to supervise or control third parties, (b) that those third parties were adults, and (c) that the conduct in question was quasi-criminal.

Tobias JA noted that present-day community expectations

would not generally countenance the imposition, on pain of paying substantial damages, of legal responsibility on the parental occupiers of domestic premises who permit one of their offspring to host a party of young adults of or over the age of 18 years. This is particularly so in the present case which involved conduct on the part of one of the guests that was not, by any stretch of the imagination, reasonably foreseeable.

Bryson JA gave the leading judgment, in which he remarked that

The appellants were not in any relationship with the guests which has been or should be established by judicial authority to impose any special duty or responsibility for the safety of the guests.

Regarding the issue of foreseeability (for breach purposes), his Honour remarked that

Barbecue parties with liquor attended by young adults occur in their hundreds all over Australia every evening; the perception that the activity, supervised or unsupervised by older adults, is one involving a foreseeable risk of personal injury is, in my opinion, an entirely wrong perception.

Two interesting VSC cases

Two recent Victorian Supreme Court cases are good examples of how to discuss complex issues in a concise and expeditious fashion.

The first case, NIML Limited v MAN Financial Australia Limited [2004] VSC 449 (8 November 2004) concerned the plaintiff’s attempts to recover from the defendant the proceeds of a fraud perpetrated by the plaintiff’s employee. NIML sued on three causes of action (a) breach of trust and knowing receipt of trust property, (b) money had and received (i.e. unjust enrichment), and (c) conversion. The plaintiff failed on all three claims.

Harper J observed that:

This case illustrates the point. A fraud has been committed. The identity of the wrongdoer is known. Both of the victims of his fraud have a cause of action against him - either directly or in third party proceedings. But he is not worth pursuing. So, in its search for recompense, one of his two victims has turned on the other. Several causes of action have been invoked. One is conversion; another, money had and received. Each is obviously applicable in a proceeding by that victim against the wrongdoer. Neither offers an equally ready solution where, as here, the defendant is not the tortfeasor, but rather has been singled out essentially because it was a party, albeit (as it claims) an innocent one, to a series of transactions financed by the proceeds of the wrongdoer's tortious conduct. A third cause of action - liability to account as a constructive trustee - is also pleaded. This does include as an element the defendant's knowing involvement in the wrongdoer's fraudulent design. Even here, however, the allegation is not so much that the defendant knew, but that it ought to have known, that a wrong was being done to the plaintiff.

Regarding the ‘knowing receipt’ claim, his Honour held that at least constructive knowledge was required. He thus rejected the fashionable assertion that liability should be strict, along quasi-restitutionary lines. What is worth remarking, though, is the way his Honour was able to expeditiously deal with the ‘knowing receipt’ point, without repetitiously examining every authority on the subject, as seems so often to happen in other Australian jurisdictions. Brevity, in this case, is indeed the very soul of wit.

The second case, Esso Australia Resuorces Pty Ltd v Southern Pacific Petroleum NL (rec & man apptd) & Ors [2004] VSC 477 (23 November 2004), concerns the scope and content of the implied duties of good faith and co-operation. The case concerned whether Esso could prevent SPP from assigning rights under a joint venture agreement without Esso’s consent. Esso claimed that this unilateral assignation breached the implied terms of good faith and cooperation. Justice Hollingworth held that they did not, and although her Honour was open-minded about the existence of such a duty of good faith, she stressed that it could not override the plain meaning of the express terms of a commercial contract.

While we at the Branch are somewhat more sceptical of the duty of good faith than Justice Hollingworth, we commend her Honour for her concise and direct style in writing about the issue. Good faith is a topic that normally encourages ponderous, indecisive and turgid writing -- especially so in NSW -- so it is a relief to see a fresher approach from courts south of the border.

Sunday, November 21, 2004

New Case for Judiciary Act Junkies

The Branch has noticed an interesting recent case in the Victorian Supreme Court, concerning s 64 of the Judiciary Act: Victorian WorkCover Authority v Commonwealth of Australia [2004] VSC 474 (19 November 2004)

WorkCover was suing the Commonwealth under s 138 of the Accident Compensation Act (Vic) to recover compensation paid to a worker who was injured on the Commonwealth's property when she tripped and fell while fleeing a swarm of wasps.

Section 64 of the Judiciary Act provides: "In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject."

As Kaye J put it, the issue in the case " it is whether the rights of the Authority are capable, for the purposes of s.64, of being "as nearly as possible" the same as the rights of a subject in a suit commenced by it against the Commonwealth."

The Commonwealth argued that the Workcover Authority, as an emanation of the Crown, was carrying out a function peculiar to government, so that its rights could not, for the purposes of s.64 , be "as nearly as possible the same" as the rights between subject and subject.

His Honour rejected this argument:

The flaw in the argument of the Commonwealth lies, in my view, in its focus on the status and functions of the Authority, as distinct from the rights asserted by the Authority in a claim made by it under s.138 of the Accident Compensation Act. Even if the Authority is the sole entity entitled to institute a claim under s.138 - and thus such a claim is a right "peculiar" to the Authority - it is the rights so asserted by the Authority, and not the status of the Authority, which are required, by s.64, to be equated, as nearly as possible, to rights between subject and subject. There is nothing about the rights so asserted by the Authority which renders them incapable of being so equated to rights between subject and subject.

In other words, in order to preclude s.64 of the Judiciary Act applying to a proceeding under s.138 of the Accident Compensation Act, it is not sufficient that the Authority is an emanation of the Crown which exercises a function which is exclusive to the Crown. … A cause of action based on s.138 does not involve any rights so peculiar to the Crown that the rights of the parties in such an action may not, as nearly as possible, be the same as rights between two litigating subjects.

Piddington Ponders: Fourth Branch Redux

Piddington has also been reading the latest edition of the Australian Law Journal [ed: see post below on private law], and he was most intrigued to find an article by his second-favourite current Chief Justice, Jim Spigelman, entitled "The Integrity Branch of Government". The author proposes that those aspects of the Legislative, Executive and Judicial branches of government that are concerned with maintaining integrity should be conceptualised as a "Fourth Branch" of government: a coherent body of principle directed towards maintaining the integrity of government as a whole. The author concludes:

There is, I believe, utility in identifying the common function performed by the institutions to which I have referred: Parliament when not acting as a legislature; the head of state; the courts by judicial review; Auditors-General; corruption commissions; royal commissions etc. Whilst also performing other functions, from legislation in the case of Parliament to resolving individual disputes in the case of the judiciary, it is possible to identify a distinctive function which can be categorised as maintaining the integrity of government in the manner I have identified, that is, ensuring that powers are exercised for the purposes and in the manner envisaged. [(2004) 78 Australian Law Journal 724, 737]

As a denizen of the original Fourth Branch, Piddington is intrigued by this suggestion, but is not yet wholly convinced. At base, it might amount to nothing more extraordinary than the proposition that the institutions of state exist to ensure sound public administration within the limits set by the political community. Thus, one might summarise Spigelman CJ’s proposition as being: “all institutions of government have a role in propagating the rule of law”.

On the other hand, Piddington wonders whether there is also a more radical suggestion in Spigelman CJ’s remarks: namely, that the separation of powers is not an intrinsic good, but rather serves as a means to an end. Hence, the CJ’s invocation of the ancient Chinese Imperial government -- in which a “censorial” branch of government served to ensure the integrity of the other branches -- serves as a reminder that government can in fact be arranged in other ways, and that there is nothing inherently ‘good’ about Montesquieu’s three-fold organisation.

Given the High Court’s fetishism over the past few years about the need for a strict separation of judicial power from the other branches of government, Piddington thinks that Spigelman CJ’s suggestions will at least provide food for thought for a more integrated vision of governmental power. Piddington also speculates that while the separation of powers may set boundaries between the various branches of government, it does not actually say much about the extent of government power as a whole.

While Spigelman CJ never says so in as many words, Piddington suspects that we must look elsewhere than the separation of powers to find a true protection for liberty against the scope of government power.

Thursday, November 18, 2004

High Court Latest: Fair Basing of Patent Claims

Today’s High Court case, Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58, concerns the need for patent claims to be fairly based on the specification contained in the patent application. Lockwood successfully appealed from a decision of the Full Federal Court revoking its patent. Doric had alleged that Lockwood’s specification for a type of door lock was so broad and generic that its claim could not be said to be fairly based upon it.

In allowing Lockwood’s appeal, Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ stressed that tests relating to other areas of patent law (e.g. obviousness, inventive step, novelty), should not be introduced into the question of fair basing, since fair basing was not about the ‘inventive merit’ of the patent. In the relevant section of the Patents Act (s 40(3))

the language points to a comparison between the claims and what is described in the specification only, and … it does not call for any inquiry into an "inventive step", or inventive "merit" or a "technical contribution to the art".

The Court approved Fullagar J’s judgment in Société des Usines Chimiques Rhône-Poulenc v Commissioner of Patents (1958) 100 CLR 5:

Section 40(3) requires, in Fullagar J's words, "a real and reasonably clear disclosure." But those words, when used in connection with s 40(3), do not limit disclosures to preferred embodiments.

"The circumstance that something is a requirement for the best method of performing an invention does not make it necessarily a requirement for all claims; likewise, the circumstance that material is part of the description of the invention does not mean that it must be included as an integer of each claim. Rather, the question is whether there is a real and reasonably clear disclosure in the body of the specification of what is then claimed, so that the alleged invention as claimed is broadly, that is to say in a general sense, described in the body of the specification."

Fullagar J's phrase serves the function of compelling attention to the construction of the specification as a whole, putting aside particular parts which, although in isolation they might appear to point against the "real" disclosure, are in truth only loose or stray remarks.

The appeal was allowed, subject to certain undertakings.

Wednesday, November 17, 2004

Shaw and Steady in Victoria?

Perhaps judges in Victoria have taken the lesson of the Shaw affair to heart: if in doubt, take the train home!

While Piddington doesn’t want to cast any nasturtiums (especially not at a judge who knows something about defamation, and especially since the judge in question was, well, sober as a judge!), he must confess that he does not often see judges of the Supreme Court sitting on the bench of a suburban train for the ride home after work.

Seen a judge? Let Piddington know!

High Court Latest: Criminal Appeal Dismissed

In other news from the High Court today, the court dismissed an appeal against conviction in which the appellant claimed that the trial judge was in error in failing to give the jury a warning about the unreliabilty of accomplice testimony. See Jenkins v The Queen [2004] HCA 57

Among other things, the High Court said this:

If there is an issue which the jury might have to resolve in order to reach a verdict of guilty, and an accomplice's evidence relates to that issue, an accomplice warning must be given if the acceptance of that evidence is or could be a step taken by the jury in reasoning to a finding of guilt. Ordinarily it would be expected that the use to which the accomplice's evidence may be put will be apparent from the examination or cross-examination of the accomplice, or at least from what is said in closing addresses to the jury. That course of evidence, or the addresses, will reveal whether accepting the accomplice's evidence could be a step which the jury would take along the path to a guilty verdict. If the evidence of an accomplice is not controverted, there will be no issue to which the accomplice's evidence relates and which the jury will, or may, resolve in reasoning to a verdict of guilty. In that latter case no accomplice warning will be necessary. It will not be necessary because there is no issue for the jury to decide to which the instruction could relate.

Since the alleged accomplice's testimony did not go to issues in dispute, a warning was not necessary, and the appeal was unanimously dismissed by Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.

High Court Latest: Private Law Fans Rejoice!

One of the High Court’s two opinions today discusses the potential proprietary basis of the tort of interfering with contractual relations: Zhu v The Treasurer of the State of New South Wales [2004] HCA 56

Mr Zhu had a contract with TOC Pty Ltd to sell Sydney 2000 Olympic tickets in China. SOCOG (the organising body of the Sydney games) then induced TOC to breach its contract with Zhu. Zhu then sued in the Supreme Court of NSW for the tort of interference with contractual relations, and won $4,234,319 in damages.

SOCOG succeeded in the Court of Appeal with a defence of justification, based on the Sydney 2000 Games (Indicia and Images) Protection Act 1996 (Cth), in that since Zhu’s contract was in breach of that act, and SOCOG was justified in inducing the cessation of illegal conduct.

But on appeal to the High Court, even SOCOG conceded that the contract did not authorize—let alone require—illegal conduct, and thus this strand of the court’s reasoning was in error. Zhu’s conduct was in China, not Australia. Nonetheless, SOCOG’s argument was that since it had ‘superior’ contractual and quasi-proprietary rights, the assertion and exercise of these rights justified the interference with Zhu’s contract. As we shall see, the High Court unanimously disagreed, and allowed Zhu’s appeal.

How can one resist a judgment that begins:

It is a truth almost universally acknowledged - a truth unpatriotic to question - that the period from 15 September 2000 to 1 October 2000, when the Olympic Games were held in Sydney, was one of the happiest in the history of that city. The evidence in this case, however, reveals that the preparations for that event had a darker side.

Then, on the doctrinal point about what suffices to create a defence of justification, the court said that the case law

supports the view that an "actually existing superior legal right" is required, and that such superiority is not established by priority between merely contractual rights. Superiority is conferred by the proprietary nature of the right or, as in James v The Commonwealth, must be found in statute. No such statutory right or duty exists in the present case, as explained earlier in these reasons. This approach to the defence of justification should be accepted for Australia

And later:

in stating the law for Australia, it should now be accepted that, where the superiority of right rests in some characteristic of the general law, then, as indicated above, and as perceived by Jordan CJ, temporal priority of other purely contractual rights will not suffice. …
Even if the whole of SOCOG's allegations of unlawful conduct against the plaintiff had been made good, it would still be unable to rely on the justification defence, because, for the reasons just set out, it was not reasonably necessary to protect even that very wide conception of its rights.

Quite aside from the particular issue to be resolved, the judgment is interesting for its discussion of the proprietary (or quasi-proprietary) nature of contractual rights and other choses in action.

Finally, we at the Branch are mystified as to who authored the unanimous joint judgment: we have to guess out of Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, and the style of the judgment doesn't seem to fit any of them. Perhaps the sense of fun and joi de vivre -- qualities not normally associated with the current High Court -- are because the opportunity to decide private law cases are so far and few between [see post below] so they have to be savoured when they do arise. If you can guess who it was, e-mail us to let us know.

High Court Latest: Private Law Fans Despair!

The Third Branch has just read the latest Australian Law Journal, and we can’t help but agree with the editor—Young CJ in Eq of the NSW Supreme Court—that the High Court pays insufficient attention to private law, certainly in comparison with the House of Lords’ treatment of the same subject matter. The judge notes that “[c]riminal cases, negligence cases, immigration cases, and constitutional cases appear to take up the majority of the court’s time”, to the detriment of cases about trusts law, equity, property and the like.

While not endorsing judicial activism, the Editor writes that

The vital point is that proper development of private law, particularly equity and property law, must not be shackled to High Court (or Full Court) decisions which have passed their use-by date.

Here at the Branch, we heartily concur.

Shaw saga - some news

The Australian is reporting "State to pay costs of Shaw retrials":

In response to questions from the Opposition, Attorney-General Bob Debus agreed taxpayers' money would have to be spent to compensate parties to Mr Shaw's five outstanding court cases and issued a public apology.

Those cases to be reheard apparently include a medical negligence suit, a personal injury case, a criminal appeal against sentence and conviction, and a request for an inquiry into a criminal conviction.

Tuesday, November 16, 2004

Australian Connection In US Supreme Court Case

The Third Branch has just been made aware of a recent US Supreme Court decision with an Australian connection. The plaintiff-respondent in Norfolk Southern Railway v James N Kirby Pty Ltd was an Australian manufacturer, presumably of refrigeration equipment. O’Connor J gave the judgment of a unanimous Supreme Court. She began by noting that:

This is a maritime case about a train wreck. A shipment of machinery from Australia was destined for Huntsville, Alabama. The intercontinental journey was uneventful, and the machinery reached the United States unharmed. But the train carrying the machinery on its final, inland leg derailed, causing extensive damage. The machinery’s owner sued the railroad. The railroad seeks shelter in two liability limitations contained in contracts that upstream carriers negotiated for the machinery’s delivery.

The issues were (a) whether federal law governed the claim, and (b) whether the Himalaya Clause in the bill of lading succeeded in limiting the railway’s liability. The Supreme Court answered “yes” and “yes”.

So far as The Third Branch is aware, those questions would receive the same answers in Australia: (a) because of the Admiralty Act 1988 (Cth), and (b) because of the decision in Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1980) 144 CLR 300.

We at the Third Branch are all landlubbers, so we'd be grateful to hear from any readers who know better.

Piddington's Picks: Who's up next for the High Court

As the only High Court judge never to have sat on the bench, Piddington is obviously very interested to find out who will replace Justice Michael McHugh, who retires in November 2005. Speculation has already begun in earnest, and Piddington looks forward to keeping his readers informed of all the best rumours.

With regard to Justice McHugh’s recent speech in Perth on October 27, Piddington suspects that it was his (then-impending) 69th birthday which prompted him to reflect on who his successor should be. After declaring that “I very much like women”, it comes as no surprise that McHugh J would very much prefer a woman to follow him in the role, so as to begin to redress the High Court’s gender imbalance.

Piddington also very much likes women, and was glad to hear that the recently-appointed Chief Justice of the Family Court, Diana Bryant, agrees that there are a great many “extremely competent” female judges on the state and federal courts who would be an ornament to any High Court bench [see the Australian Financial Review, 15 November 2004, p 3].

Women whose names have been mentioned include Justices Carmel McLure and Christine Wheeler of the Supreme Court of Western Australia, and Justices Susan Kenny, Susan Keifel and Catherine Branson from the Federal Court. Other contenders include Chief Justice Marilyn Warren of the Supreme Court of Victoria, Justice Margaret White of the Supreme Court of Queensland, and Justice Ruth McColl of the NSW Court of Appeal.

Of these, Piddington likes Carmel McLure’s chances the best, although it can’t be a good omen that the Australian Financial Review misspelt her name [10 November, p 60].

In later posts, Piddington will survey the male contenders, and will gradually build up a High Court form guide for interested punters. Let the race begin!

If you’ve heard a good story, or if you think there’s a name missing from Piddington’s list of female contenders, e-mail Piddington to let him know.

Breaking news - High Court states the obvious: "Contracts mean what they say"

In the High Court's latest decision Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55, the appellant sued the respondents for non-repayment of a series of loans that appeared to be part of a tax minimisation scheme. In turn, the respondents claimed that their conduct was authorised by a prior oral contract; an argument accepted at trial and in the Queensland Court of Appeal. In unanimously reversing these judgments, the High Court emphasised its recent theme (see Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd) to the effect that if you sign a contract, you’ll be bound by it:
The respondents each having executed a loan agreement, each is bound by it. Having executed the document, and not having been induced to do so by fraud, mistake, or misrepresentation, the respondents cannot now be heard to say that they are not bound by the agreement recorded in it. The parol evidence rule, the limited operation of the defence of non est factum and the development of the equitable remedy of rectification, all proceed from the premise that a party executing a written agreement is bound by it. Yet fundamental to the respondents' case that the operative agreements between the parties were wholly oral, and reached earlier than the execution of the written agreements, was the proposition that the written agreements subsequently executed not only may be ignored, they must be. That is not so. Having executed the agreement, each respondent is bound by it unless able to rely on a defence of non est factum, or able to have it rectified. The respondents attempted neither.

The appeal was allowed, and the case was remitted to the Supreme Court of Queensland to deal with some remaining matters.

To us at The Third Branch, the fact that you’re bound by what you sign seems like an obvious point of contract law, especially in the course of commercial transactions between commercial parties. The fact that this was not so obvious in either Queensland or New South Wales is a matter of some concern, but thankfully the High Court has now set both these jurisdictions straight.

Monday, November 15, 2004

More about Shaw

The ABC is reporting that "Shaw denies fleeing with blood samples"

The Australian's cover story also runs with Shaw, although its angle is the aftermath of one of the two cases being heard by ex-justice Shaw that will now have to be reheard by another judge.

THE resignation of a NSW judge over a drink-driving scandal will force the parents of a mentally retarded girl to restart a medical negligence court case from scratch at a potential cost of hundreds of thousands of dollars

The case will now presumably be re-heard in front of another judge. No-one is sure who will ultimately pay the bill for the now-wasted legal costs.

High Court Special Leave granted

On 12 November, the following cases were granted special leave to appeal to the High Court:

Valleyfield Pty Ltd as Trustee of the Parker Unit Investment Trust v Primac Ltd (Special leave granted on limited grounds. Appeal allowed instanter)

Tabe v The Queen (drug possession – mental state for accessory liability: appealed from [2004] QCA 17)

Coventry v Charter Pacific Corporation Ltd (proof of unliquidated debt in bankruptcy: appealed from (2003) 179 FLR 438 (QCA))

Piper v Nominal Defendant(compulsory third-party insurance – whether reasonable excuse in failing to notify insurer: appealed from [2004] 2 Qd R 85)

WAEV v Minister for Immigration and Multicultural and Indigenous Affairs (migration law – denial of natural justice - Special leave to appeal granted on limited grounds: appealed from [2003] FCAFC 181)

Mule v The Queen (evidence – exculpatory statements and the right to silence: appealed from [2004] WASCA 7)

Shaw mystery solved!

Readers who have been following the NSW Supreme Court's Shavian Saga will be pleased to know that the mystery has apparently been solved: the Sydney Morning Herald reports that the ex-judge left Sydney's Royal Prince Alfred Hospital with both vials of blood taken as samples after his October 13 misadventure. Shaw's reported blood alcohol concentration of .225 was over four times the legal limit. If this is true, and if a conviction results, this would place Shaw within the stringent guidelines issued by the NSW Court of Criminal Appeal in a recent guideline judgment on the sentencing of drink-driving offences.

Sunday, November 14, 2004

High Court Voting Myths

The Third Branch has just come across a recent article in the Australian Financial Review that has made us scratch our heads a little. The 13 November article entitled "High Court braces for change" asserts that within four years the last Labor appointees to the court will have retired, which must come as a bit of a surprise to Justice Bill Gummow, who is not due to retire until 2012. Either the AFR has secret plans for Justice Gummow, or else they are engaging in a little uncharacteristic fuzzy maths. More perplexing, though, was the article's claim that:

In a period in which there have been an unusually high number of important decisions on the role of human rights in constitutional interpretation, Justices Gummow and [Chief Justice] Gleeson have had more in common with judge Michael Kirby, renowned for his high dissent rate.

The article then quotes leading constitutional law professor George Williams of UNSW as saying:

In terms of fundamental shifts, what we really have to see is whether some of these alignments and positions are borne out over a couple of years, but these cases suggest that they are willing to take more of an interpretative approach, which is more likely to be protective of certain human rights.

We at the Branch think that the author has in mind Al-Kateb v Godwin, the recent case upholding the legality of indefinite immigration detention. In that case, the Grinner, Gummow J and the Kirbster did in fact agree in dissent, but we wonder whether one case really does amount to the 'trend' spotted by both Professor Williams and the AFR.

At base, the issue is the myth of block voting on the High Court; an issue about which Professor Williams perhaps ought to know better. In truth, High Court voting patterns vary widely, even if there are some recurrent features.

Here are some of the themes that appear in voting patterns after Al-Kateb, which is Professor Williams' supposedly landmark case.

Justice Kirby is indeed very likely to be the lone dissenter, but his reasons for dissenting are not always to do with being 'leftist' or solicitous of the claims of 'human rights' plaintiffs. The common assumption might hold true in Electrolux Home Products Pty Ltd v Australian Workers' Union, Baker v The Queen, and Fardon v Attorney-General, but it cannot explain his lone dissent against the interests of a refugee in WACB v Minister for Immigration. Nor can the theory easily explain his lone dissents in Rich v Australian Securities and Investments Commission (denying privilege against penalty in corporations law proceedings), or in NT Power Generation Pty Ltd v Power and Water Authority (denying that trade practices law applied to a government instrumentality).

The 'Kirby as lone dissenter' theory also makes it difficult to explain Hayne J's unexpected lone dissent in Director of Public Prosecutions (NT) v WJI (a case about mens rea in NT sexual offences law).

Another common assumption is that the three 'Capital "C" conservatives' all vote together. This might have been true in Coleman v Power (about the constitutional freedom of political communication), but it cannot explain Singh v Commonwealth (a person born in Australia may nevertheless be an alien, and thus liable for deportation), in which the majority was Gleeson CJ, Gummow, Hayne, and Heydon JJ jointly, and Kirby J separately; with McHugh and Callinan JJ separately in dissent. And nor can it explain Re Colonel Aird; Ex parte Alpert (a case about the extent of the Commonwealth's 'defence' power), in which the majority was Gleeson CJ, McHugh, Gummow, and Hayne JJ; with Kirby, Callinan and Heydon JJ jointly in dissent.

Singh was unusual for its lack of a Kirby dissent. Colonel Aird was unusual since a Kirby-Callinan-Heydon dissent is hard to explain on the usual assumptions, and also because Heydon and Callinan rarely write together as a 'couple' (as opposed to a larger joint judgment).

Another oddity was Re Woolley; Ex parte Applicants M276/2003, the case about the constitutionality of holding children in immigration detention. While the children's appeal was unanimously dismissed, every judge wrote separately. Obviously, they each wanted to have their two cents' worth.

Another point about NT Power was that it gave McHugh J a rare opportunity to sit in the big chair in the middle of the bench. So far as we are aware, the only other time he's been ACJ this year was in the Panel case.

In other words, the AFR's theory of a Gleeson-Gummow-Kirby entente cordiale seems not to have much substance to it at all.

Edmund Barton

Edmund Barton

Tosspot Toby himself.

See Piddington's special investigation below.

High Court Smackdown! Flu shot for NSW Court of Appeal

In a recent decision, the High Court has unanimously reversed the NSW Court of Appeal, which had gone on a frolic of its own into what ought to have been a simple application of contract law. The case, Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52, concerned a shipment of temperature-sensitive flu vaccine that was destroyed by being transported at too cold a temperature. Toll relied on an exclusion of liability clause contained on the back of a signed form, but Alphapharm succeeded in convincing the District Court of Court of Appeal that it was not bound by the clause because its agent did not read the contract before he signed it, and because his attention was not drawn to the clause by Toll. As the court noted:

Each of the four parties to the case is a substantial commercial organisation, capable of looking after its own interests. This hardly seems an auspicious setting for an argument that a party who signs a contractual document is not bound by its terms because its representative did not read the document.

The High Court reaffirmed the rule in L'Estrange v Graucob [1934] 2 KB 394 that you're bound by what you sign, whether you read it or not.

The reasoning of the primary judge, accepted by the Court of Appeal, was based upon the proposition that, in order for those terms and conditions to be made part of the contract, it was necessary for [Toll] to establish that it had done what was reasonably sufficient to give [the agent] notice of the terms and conditions (the major premise), and the further proposition that [Toll] had not done what was reasonably sufficient to give [the agent] such notice (the minor premise).

It would be possible to dispose of the appeal by disagreeing with the minor premise. What more [Toll] could have done to give [the agent] notice of the terms and conditions than requiring their representative to sign a document, and to place his signature immediately below a request that he read the conditions on the reverse side of the document before signing, is difficult to imagine.
But it was the major premise that gave the High Court the opportunity for the big smackdown. Of the major premise, they said that
If correct, it involves a serious qualification to the general principle concerning the effect of signing a contract without reading it. The proposition appears to be that a person who signs a contractual document without reading it is bound by its terms only if the other party has done what is reasonably sufficient to give notice of those terms. If the proposition is limited to some terms and not others, it is not easy to see what the discrimen might be.
The High Court noted that the whole idea of 'sufficient notice' is derived from ticket cases and other situations where the terms of the contract are compiled from multiple documents. However, so far as wholly written contracts are concerned:
When an attempt is made to introduce the concept of sufficient notice into the field of signed contracts, there is a danger of subverting fundamental principle based on sound legal policy.
The appeal was allowed, and Alphapharm had to hand back the $683,061.86 damages it had been given below. On a more tangential note, this is two losses out of two for Alphapharm in recent High Court cases. The other was their loss in Aktiebolaget Hassle v Alphapharm Pty Ltd (2002) 212 CLR 411, a case about the meaning of "inventive step" in patents law. Clearly, not a very good batting average.