Monthly Archives: August 2014

Contract, Employment Law, LAW FIRM

Commonwealth Bank of Australia v Barker [2013] FCAFC | 6 August 2013

ON 6 AUGUST 2013, the Full Court of the Federal Court of Australia delivered Commonwealth Bank of Australia v Barker [2013] FCAFC 83 (6 August 2013).

http://www.austlii.edu.au/au/cases/cth/FCAFC/2013/83.html

Barker was an executive manager in the Adelaide corporate banking section of the Commonwealth Bank. He had a written contract of employment under which the bank could terminate his contract, without cause, with written notice of four weeks.

On 2 March 2009, Barker was handed a letter advising that his position was to be made redundant but it was the bank’s preference to redeploy him and that they would consult with him with regards to his options. His email and intranet access were cancelled immediately and he was made clear his desk, hand in his keys and mobile phone, and told not return to work.

The human resources department of the bank then made a number of unsuccessful attempts to contact Barker by email and mobile phone about another position that would have been suitable to his skill set. They were not aware until 26 March 2009 that Barker no longer had access to his work email or mobile phone. On 9 April he was advised in writing that his employment was terminated due to redundancy, effective from the close of business that day.

Barker commenced proceedings in the Federal Court against the bank for breach of employment contract and damages under s82 of the Trade Practices Act 1972 (Cth). The trial judge, Justice Besanko, found that the bank had been inactive when complying with its policies following notification of redundancy and that this was a serious breach of the implied term of mutual trust and confidence which entitled him to damages.

Besanko J awarded Barker damages of $317,000 for loss of the opportunity to be redeployed to a suitable position within the bank.

On appeal, the Full Court of he Federal Court of Australia was required to consider (1) whether the employment contract contained an implied term and (2) if there was an implied term, the bank’s breach of its policies  constituted a serious breach of the relationship of trust and confidence upon which the term arose.

The Full Court majority (Jacobsen and Lander JJ, Jessup J dissenting) were of the view that even though there is no High Court authority on the issue, there is a significant degree of recognition in England and Australia for the Full Court to accept that such implied terms form part of Australian employment contracts.

The Full Court considered that the term operated after the dismissal so that the bank was required to take active steps to consult with Barker about the alternative available positions and allow him the opportunity to apply.

The Full Court consider the banks’ failure to contact Barker was unreasonable and constituted a breach of the implied term of mutual trust and confidence.

The bank has appealed to the High Court of Australia on the grounds that (1) Full Court made an error in holding that the common law of Australia contains an implied term based on a relationship of mutual trust and confidence and (2) that the Full Court made an error in finding that the implied term required the bank to consult with Barker about his redeployment options.

The decision has since been overturned by the High Court of Australia.

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Contract, Equity, Guarantee and Indemnity, LAW FIRM

Garcia v National Australia Bank Ltd [1998] HCA 48 | 6 August 1998

ON 6 AUGUST 1998, the High Court of Australia delivered Garcia v National Australia Bank Ltd [1998] HCA 48; 6 CCL 81; 194 CLR 395; 155 ALR 614; 72 ALJR 1243 (6 August 1998).

http://www.austlii.edu.au/au/cases/cth/HCA/1998/48.html

The High Court considered its earlier decisions of Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 as well as the English decision of Barclays Bank Plc v O’Brien [1994] 1 AC 180.

Yerkey v Jones provides a special rule for married women who, regardless of other characteristics, voluntarily guarantee their husband’s loans. There are two limbs: (1) a wife may have a guarantee set aside if the consent was obtained by undue influence, unless she received independent advice (at 649, per Dixon J); and (2) a wife has a prima facie right to have a guarantee set aside if she failed to understand the effect of the guarantee or its significance, unless steps were taken by the lender to inform the wife of such matters (at 683, per Dixon J).

Commercial Bank of Australia Ltd v Amadio is the leading Australian case on unconscionability. Unconscionable dealings are defined as the “unconscientious use of a superior position to the detriment of a party who suffers some special disability or is or is in some special position of disadvantage” (Mason J at 461). Such dealings occur when “one party by reason of some condition or circumstance is placed at a special disadvantage vis-a-vis another and unfair or unconscientous advantage is taken” ((Mason J at 462). In other words, entry into the contract must be caused by taking advantage of a special disability, not mere inequality or impaired judgment.

In Garcia, the High Court rejected the submission that the rule in Yerkey v Jones had been overruled by or subsumed in Amadio. The court at [34] per Gaudron, McHugh, Gummow and Hayne JJ reaffirmed Yerkey v Jones as being a separate rule of unconsciounability (1) applying to married women and not dependant on any presumption of undue influence by the husband over the wife or the husband as acting as agent for the creditor and (2) dependant on “the surety being a volunteer and mistaken about the purport and effect of the transaction, and the creditor being taken to have appreciated that because of the trust and confidence between surety and debtor the surety may well receive from the debtor no sufficient explanation of the transaction’s purport and effect”.

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Sydney, Australia

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Administrative Law, Constitutional law, LAW FIRM, Legislation, Migration Law

Al-Kateb v Godwin [2004] HCA 37 | 6 August 2004

ON 6 AUGUST 2004, the High Court of Australia delivered Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124; 78 ALJR 1099 (6 August 2004).

http://www.austlii.edu.au/au/cases/cth/HCA/2004/37.html

The High Court held that the provisions under the Migration Act 1958 (Cth) requiring the continued detention of non-citizens for an indefinite period are not prohibited by the Constitution because the purpose of the legislation is the eventual removal of those persons.

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Sydney, Australia

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Duty of Care, LAW FIRM, Motor Accidents, Negligence

Bourhill v Young [1942] UKHL 5 | 5 August 1942

ON 5 AUGUST 1942, the House of Lords delivered Bourhill v Young [1942] UKHL 5 (5 August 1942).

http://www.bailii.org/uk/cases/UKHL/1942/5.html

A car and motorcycle collided near a tram causing fatal injuries to the motorcyclist. The motorcyclist was travelling at excessive speed and was at fault. A passenger on the tram heard the sound of the collision but saw nothing. She was startled by the noise of the collision, suffering nervous shock, though she was not in immediate physical injury herself. She observed blood on the roadway after the motorcyclists body had been removed. She later suffered a miscarriage. She claimed damages including losses to her business arising from the nervous shock.

The House of Lords held that the motorcyclist was not guilty of negligence as he did not owe a duty of care to the tram passenger as he could not have reasonably foreseen the likelihood that anyone placed as her (in a position of apparent safety) could have been affected in such a manner.

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Sydney, Australia

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Civil procedure, Evidence, LAW FIRM, Pleadings, Practice and Procedure

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 | 5 August 2009

ON 5 AUGUST 2009, the High Court of Australia delivered Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009).

http://www.austlii.edu.au/au/cases/cth/HCA/2009/27.html

In Aon Risk Services Australia Limited v Australian National University, the Australian National University on day three of a four week hearing was granted an adjournment to make significant amendments to their statement of claim against their insurance broker. The ACT Court of Appeal dismissed an appeal of the decision except in relation to costs. The High Court of Australia allowed an appeal, setting aside the Court of Appeal’s decision and sending the matter back to the ACT Supreme Court for directions towards final determination.

The High Court considered its earlier decision of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146; (1997) 141 ALR 353; (1997) 71 ALJR 294 (14 January 1997) in the light of how it had been applied by the courts across Australia.

JL Holdings contains the often quoted passage regarding case management:

“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”

Queensland v JL Holdings had come to be an authority for the propositions that (1) doing justice between the parties is paramount to the court’s use of discretion when determining an application for leave to amend  (2)case management principles should not limit a court’s discretion when considering such applications and (3) an application for leave to amend should be approached on the basis that a party is entitled to raise an arguable claim subject to payment of costs by way of compensation.

The majority in Aon Risk Services Australia Limited v Australian National University (Gummow, Hayne, Crennan, Kiefel and Bell JJ) at [111-113] held that applications for leave to amend should not be approached on the basis that a party is entitled to raise an arguable claim subject to costs as compensation.

The majority also held that the statements made in Queensland v JL Holdings regarding the limiting of case management principles should not be applied in the future.

French CJ at [30] added that to ignore the concerns of case management would be to ignore the facts of undue delay, wasted costs, strain and uncertainty and erode public confidence in the legal system.

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Sydney, Australia

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Courts and Tribunals, Judges, LAW FIRM

Justice Derek Price AM | New Chief Judge of NSW District Court

The Honourable Justice Derek Michael Price AM has been appointed Chief Judge of the District Court of NSW commencing on and from 8 August 2014.

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Intellectual Property, LAW FIRM, Trademarks

Aston v Harlee Manufacturing Co (“Tastee Freez case”) [1960] HCA 47 | 4 August 1960

ON 4 AUGUST 1960, the High Court of Australia delivered Aston v Harlee Manufacturing Co (“Tastee Freez case”) [1960] HCA 47; (1960) 103 CLR 391 (4 August 1960).

http://www.austlii.edu.au/au/cases/cth/HCA/1960/47.html

A person who first applies for an unused trademark in Australia is entitled to be regarded as the Australian author, even if he or she has copied a foreign mark, provided that he or she intends to use the trademark and there is no fraud involved.

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Sydney, Australia

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Appeals, Bias, LAW FIRM

R v Watson; Ex parte Armstrong [1976] HCA 39 | 3 August 1976

ON 3 AUGUST 1976, the High Court of Australia delivered R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 (3 August 1976).

http://www.austlii.edu.au/au/cases/cth/HCA/1976/39.html

The decision sets out the test under Australian law for apprehended bias.

A judge must not hear a case if “the parties or the public might reasonably suspect that he was not unprejudiced and impartial”: per Barwick CJ, Gibbs, Stephen and Mason JJ at 263.

Public confidence in the administration of justice is of fundamental importance: “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”: at 263.

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Administrative Law, Appeals, Courts and Tribunals, LAW FIRM

Administrative Appeals Tribunal

The Administrative Appeals Tribunal (AAT) http://www.aat.gov.au/ hears appeals of administrative decisions of Australian Government ministers, departments, agencies and tribunals. A decision may only be reviewed if a specific piece of legislation grants the AAT the power to review the decision.

The AAT began on 1 July 1976 under the Administrative Appeals Tribunal Act 1975 (Cth).

The AAT is authorized to review decisions in over 400 pieces of legislation covering areas such as social security, family assistance, veterans affairs, workers compensation, child support, bankruptcy, civil aviation, citizenship, immigration, corporations, financial services, customs, industry assistance, freedom of information, mutual recognition of occupations, security assessments and passports.

The AAT has five divisions: General Administrative, National Disability Insurance Scheme, Security Appeals, Taxation Appeals and Veterans’ Appeals Divisions

Appeals involve a merits review.  The AAT reconsiders the facts, law and policy relating to the administrative decision on appeal and then makes it’s own decision by affirming, setting aside or varying the decision or remitting the matter back to the administrative decision maker. The tribunal is not bound by the laws of evidence and can inform itself in any manner that it considers appropriate. However, it is required to preform its functions in accordance with the law and is bound by the principles of natural justice and procedural fairness.

AAT decisions may be appealed in the Federal Court of Australia.

The AAT has registries all across Australia. The Sydney Registry is located at level 7, 55 Market Street, Sydney NSW 2000.

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Sydney, Australia

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Constitutional law, LAW FIRM

Commonwealth v Cigamatic Pty Ltd (In Liq) [1962] HCA 40 | 2 August 1962

ON 2 AUGUST 1962, the High Court of Australia delivered Commonwealth v Cigamatic Pty Ltd (In Liq) [1962] HCA 40; (1962) 108 CLR 372 (2 August 1962).

http://www.austlii.edu.au/au/cases/cth/HCA/1962/40.html

The case is notable for establishing the “Cigamatic doctrine”: that the Constitution grants to the Commonwealth a limited immunity from State laws.

The immunity relates to the Commonwealth’s executive capacities rather than the exercise of those capacities. In other words, a State law can regulate the exercise of Commonwealth executive capacities as long as it does not alter or deny those capacities: see Re Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority [1997] HCA 36; (1997) 190 CLR 410; (1997) 146 ALR 495; (1997) 71 ALJR 1254.

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Sydney, Australia

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