High Court of Australia Judgment Summary Notes

R & R Fazzolari Pty Limited v Parramatta City Council; Mac’s Pty Limited v Parramatta City Council [2009] HCA 12 (2 April 2009)

The High Court decided that Parramatta City Council may not compulsorily acquire land owned by R & R Fazzolari Pty Ltd and Mac’s Pty Ltd without their approval.

Parramatta City Council proposed to redevelop a block within the city centre bounded by Smith,Darcy, Church and Macquarie Streets. The redevelopment was to be called “Civic Place” and was to be carried out under a Public Private Partnership between Parramatta City Council and two companies in the Grocon group. The agreement between the Council and Grocon provided, amongst other things, that the Council would acquire certain land within the redevelopment block and would transfer some of the acquired land to the Grocon companies, and in return, the Council would receive substantial financial payments and other benefits from Grocon.

Some of the land which the Council had to compulsorily acquire in order for the agreement between it and Grocon to come to fruition and for the redevelopment to proceed belonged to R& R Fazzolari Pty Ltd. Some belonged to Mac’s Pty Ltd. Some parts of the land — in Darcy St and Church St – were actually parts of the public roads owned by the Council under the Roads Act. Although those two streets were vested in the Council, it had to compulsorily acquire them from itself in order for them to be utilised in the redevelopment. That procedure was authorised by section 7B of the Land Acquisition (Just Terms Compensation) Act.

In NSW section 188(1) of the Local Government Act provides that if land is being acquired for the purpose of re-sale, then it may not be compulsorily acquired without the approval of the owner. Section 188(2) qualifies this constraint on a Council’s power to compulsorily acquire land — it provides that the owner’s approval is not required if the land is part of, adjoins or lies in the vicinity of other land acquired at the same time under Part 1 of Chapter 8 of the Local Government Act for a purpose other than re-sale

The Council sent proposed acquisition notices to owners of land within the redevelopment block, including Fazzolari and Mac’s. Each of them challenged the proposed acquisitions on the basis that their land was being acquired in order to re-sell it to Grocon. Before the NSW Land and Environment Court they successfully argued the land could not be compulsorily acquired without their consent. However three judges of the NSW Court of Appeal agreed with the Council that the land belonging to Fazzolari and Mac’s was being acquired to implement the Council’s “Civic Place” project and not for the purpose of re-selling it to Grocon. The Court of Appeal held the Council did not need the owners’ consent to compulsorily acquire the land.  Fazzolari and Mac’s appealed to the High Court.

The High Court considered that the acquisition of the Fazzolari land and the Mac’s land could be characterised as steps along the way in an arrangement which was directed towards the “Civic Place” re-development, but that did not detract from the fact that, under the development agreement, the Council’s purpose in acquiring the specific parcels of land owned by Fazzolari and Mac’s was to re-sell them to Grocon.   At the hearing before the High Court the Council argued that, even if the land owned by Fazzolari and Mac’s was being compulsorily acquired for the purpose of re-sale, both parcels of land adjoined other land (ie — Darcy St and part of Church St) acquired under Part 1 of Chapter 8 of the Local Government Act for a purpose other than re-sale. The Council argued that the application of section 188(2) of the Local Government Act meant it was not required to obtain the owners’ approval for the compulsory acquisition. The High Court, however, found the Council was acquiring Darcy St and part of Church St under section 7B of the Just Terms Compensation Act, not under Part 1 of Chapter 8 of the Local Government Act, and therefore section 188(2) did not apply to relieve the Council of the need to obtain the approval of Fazzolari and Mac’s before it compulsorily acquired their land.

Carroll v The Queen [2009] HCA 13 (21 April 2009)

The High Court allowed Mr Carroll’s appeal and remitted to the Court of Criminal Appeal of the Supreme Court of New South Wales for reconsideration the Director of Public Prosecution’s appeal against the sentence imposed on Mr Carroll for his plea of guilty to manslaughter.  The decision of the five member High Court was unanimous.   One evening in May 2007 Mr Carroll and his friends left a hotel at about the same time as Mr Criniti. A dispute arose between some members of the group and Mr Criniti and Mr Criniti made some threats to harm them. Mr Carroll responded by head-butting Mr Criniti, who fell backwards onto the road and hit the back of his head on the roadway. Ten days later Mr Criniti died.   Mr Carroll pleaded guilty to manslaughter and was sentenced by a judge of the District Court of New South Wales to a three-year term of imprisonment, to be served by way of periodic detention, with a non-parole period of 18 months.  The sentencing judge gave detailed reasons for that decision.  The DPP appealed against that sentence to the Court of Criminal Appeal and submitted that the sentence was manifestly inadequate.  By majority, the Court of Criminal Appeal accepted the submissions put by the DPP and re-sentenced Mr Carroll to a period of full- time incarceration.   Mr Carroll was granted special leave to appeal to the High Court on the question of whether the majority of the Court of Criminal Appeal erred in concluding that the sentence imposed by the primary judge was manifestly inadequate.   The High Court found that the majority in the Court of Criminal Appeal was wrong to assess the adequacy of the sentence on the footing that Mr Carroll should not have been provoked by Mr Criniti’s conduct. The primary judge had found that Mr Carroll had been subject to some provocation and the Crown had not challenged this finding. Secondly, the High Court said that it was an error for the Court of Criminal Appeal to assess the seriousness of the offence by characterising it as one in which “severe injury was clearly foreseeable and death at least a possibility”. Mr Carroll’s admission of guilt acknowledged no more than that his act in striking Mr Criniti carried an appreciable risk of serious injury.   The High Court remitted the DPP’s appeal against the inadequacy of the sentence to the Court of Criminal Appeal for determination because the task of deciding that question is better undertaken by that Court.

IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14 (22 April 2009)

IceTV provides a subscription based electronic television program guide known as the “IceGuide”, which uses time and title information obtained in part from aggregated guides such as those published in newspaper TV guides and online.  The aggregated guides are based on TV program scheduling information provided to media outlets by the television networks.  The Nine Network provides a weekly schedule which is incorporated into the aggregated guides.  The High Court decided that IceTV’s use of some of Nine Network’s time and title information obtained from aggregated guides did not infringe Nine’s copyright in its weekly schedules.   The IceTV guide originated from templates of the daily programming of the Sydney channels, Nine, Ten and Seven prepared by an employee of IceTV who watched television continuously for a period of weeks and wrote down time and title information of programs broadcast throughout that time.  The template was then used to predict programs to be broadcast for the purposes of the IceGuide.  The IceGuide itself was corrected from week-to-week by reference to the aggregated guides.   The aggregated guides are schedules of programs to be broadcast on various television stations over a given week and are published in various media.  They are produced from information provided by free-to-air television broadcasters including information provided by the Nine Network via its weekly schedules.  The weekly schedule is a schedule of programs to be broadcast on Nine Network stations in a given week and is produced from an electronic database.  It contains various elements including the time and title of programs to be broadcast, whether a program is a repeat or live screening, format and classification information, and program or episode synopses.   When the IceGuide is downloaded on to certain devices it displays details of programs scheduled to be broadcast by free-to-air television stations for the coming six to eight days, including stations in the Nine Network.  In preparing information to be included in the IceGuide for a given day in a current week, IceTV employees would use information usually in the previous week’s IceGuide for that specific day, then compare it with the published aggregated guide for that same day in the current week.  If there were a discrepancy between the IceGuide and the aggregated guide, the IceGuide would be amended to reflect the aggregated guide in almost all circumstances.   Nine Network argued before a single Judge of the Federal Court that IceTV’s reproduction of time and title information from the aggregated guides amounted to reproduction of a substantial part of the weekly schedules which had been prepared by Nine Network staff.  On that basis the Nine Network argued that IceTV had infringed Nine’s copyright in the weekly schedule.  The trial judge disagreed.  The Nine Network appealed to the Full Court of the Federal Court which allowed the appeal.  The High Court granted IceTV special leave to appeal against the Full Court’s decision.   Today the High Court allowed IceTV’s appeal having determined that its use of time and title information in the IceGuide did not infringe Nine’s copyright in either the weekly schedule or the database from which the weekly schedule was produced, assuming without deciding that Nine had copyright in the database.  The judges of the Court produced two separate sets of reasons.   Three judges were of the view that a program’s title was ordinarily bestowed by the producer of the program rather than the person or persons who authored the weekly schedule and that expression of the time at which a program is shown can only practically be done by using words or figures based on either a 12 or 24 hour time cycle for a day.  Thus there was little originality in the expression of time and title information.  The level of skill and labour required to express the time and title information was minimal.  These considerations led to the conclusion that the time and title information was not a substantial part of the weekly schedule or of Nine’s database. Their Honours determined that IceTV had not infringed Nine’s copyright in the weekly schedule or the Nine database when it utilised time and title information from the aggregated guides in the IceGuide.   The other three judges considered that the originality of Nine’s weekly schedule lay not in the time and title information but rather in its selection and presentation together with additional program information and synopses to produce a composite.  They considered that setting down program titles in particular time slots required only modest skill and labour.  IceTV’s use of the time and title information from the aggregated guide therefore could not be characterised as reproduction of a substantial part of the weekly schedule or of the Nine database.   The High Court set aside the orders of the Full Federal Court and restored the orders made by the trial judge.

Stuart v Kirkland-Veenstra [2009] HCA 15 (22 April 2009)

The High Court decided that two police officers did not owe Mrs Kirkland-Veenstra’s husband, Ronald Veenstra, a duty of care to take steps to prevent him from committing suicide.   At about 5.40am on 22 August 1999, two police officers observed Mr Veenstra in his car at a beachside car park. There was a hose pipe leading from the exhaust into the interior of the car, but the car engine was not running. The officers spoke with Mr Veenstra who indicated that he had thought about doing something stupid but had changed his mind. The officers offered to contact various people, including his wife or a doctor, but Mr Veenstra said that he would go home and talk to his wife. The officers considered that Mr Veenstra was rational and cooperative and showed no sign of mental illness. They allowed him to leave. Later that day, Mr Veenstra committed suicide at his home by securing a hose from the exhaust of his car and starting the engine.   Under section 10 of the Mental Health Act (Victoria), the police officers were empowered (though not obliged) to apprehend a person and take him or her to be assessed by a medical practitioner if he or she appeared to them to be mentally ill (“mental illness” being defined in the Act to mean “a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory”) and they reasonably believed that he or she had recently attempted suicide or was likely to do so.   Mrs Kirkland-Veenstra sued the officers and the State of Victoria, arguing that the officers owed duties of care, both to her husband to protect his health and safety, and to her to avoid the foreseeable psychiatric injury consequential upon her husband committing suicide.   In the Victorian County Court, the trial judge held that, as a matter of law, the officers owed neither Mr Veenstra nor Mrs Kirkland-Veenstra a duty of care. On appeal to the Victorian Court of Appeal, it was held by majority that the officers did owe those duties of care. The two officers appealed to the High Court and the High Court today allowed their appeal.   In three separate judgments, all six Justices decided that the officers owed no duty of care to either Mr Veenstra or Mrs Kirkland-Veenstra. It was explained that historically the law did not oblige a person to rescue another from harm. In one judgment it was held that the circumstances present in this case did not contain special features to take the case outside of that general rule; no duty of care arose. The Justices held that the control of the risk of the harm to himself remained with Mr Veenstra.   In each of the judgments it was pointed out that the Mental Health Act was not designed to prevent suicide; it was addressed to the protection of mentally ill persons. It would be wrong to assume that all persons who attempted suicide were mentally ill; the Mental Health Act contained no such assumption.

Three Justices considered the fact that the police officers had not formed the view that Mr Veenstra was mentally ill to be critical. Unless they had that opinion they were not permitted to apprehend him pursuant to section 10 and take him to be assessed. They did not have that power.    The High Court set aside the decision of the Victorian Court of Appeal and reinstated the trial judge’s finding that the officers owed no duty of care to Mrs Kirkland-Veenstra.

Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 (22 April 2009)

The High Court dismissed Radio 2UE’s appeal in relation to an earlier jury finding that comments made by John Laws about Ray Chesterton on the John Laws Morning Show were defamatory.   On 8 August 2005, on his radio program, John Laws made some derogatory comments about Ray Chesterton, a journalist who had previously worked with 2UE. Radio 2UE Sydney Pty Ltd is the licensee of the radio station over which the comments were broadcast. Mr Chesterton sued 2UE for defamation.   At the trial before a judge and jury in the Supreme Court of NSW, the jury had to decide whether the comments made by John Laws conveyed certain imputations about Mr Chesterton and, if so, whether those imputations defamed him. The jury decided in Mr Chesterton’s favour on both of those issues.   Radio 2UE appealed to the NSW Court of Appeal, arguing that the trial judge had given the members of the jury incorrect directions about how they should decide whether Mr Chesterton had been defamed in respect of his professional or business reputation. The Court of Appeal, by majority, found that the trial judge had given appropriate directions to the jury.   2UE was granted special leave to appeal to the High Court. A majority of justices affirmed that the general test for defamation, namely whether an ordinary reasonable person would think less of the plaintiff because of what was said about him or her, applied to imputations regarding all aspects of a person’s reputation, including business reputation.   All members of the High Court considered that the trial judge had given appropriate directions to the jury about how they should approach the task of determining whether Mr Laws’ comments contained certain imputations, and if they did, whether the comments were defamatory. The members of the Court were unanimous in dismissing 2UE’s appeal.

Jones v The Queen [2009] HCA 17 (29 April 2009)

In April 2007 Christopher Jones and James Roughan were convicted of murdering Morgan Jay Shepherd, a 17 year old youth. Five Justices of the High Court unanimously dismissed Mr Jones’ appeal against the Queensland Court of Appeal’s determination that there had been no substantial miscarriage of justice arising out of his trial.   Mr Shepherd’s decapitated body was found in a shallow grave in bushland near Dayboro, a township north of Brisbane, in April 2005. He had been stabbed numerous times though it was impossible to determine which wound had actually caused his death.  Mr Jones and Mr Roughan were charged jointly with his murder. Each pleaded not guilty to murder but guilty to being an accessory after the fact. At their joint trial the evidence that both were present when Mr Shepherd died was uncontroverted, however each argued that the other had killed him. A tape recording made secretly while both were in a prison van did not contain unequivocal admissions of guilt from either of them.   The jury convicted both men of murder. Both appealed against the jury’s verdict to the Queensland Court of Appeal. That Court allowed Mr Roughan’s appeal and he was retried, however, he was convicted at his second trial. The Court of Appeal dismissed Mr Jones’ appeal, and the High Court granted special leave to Mr Jones to appeal to this Court.   In the High Court Mr Jones’ counsel submitted that the primary judge had erred in refusing to allow him to lead evidence concerning allegations that Mr Roughan, in circumstances unrelated to the death of Mr Shepherd, had attempted to murder a friend by attacking him with a knife. The evidence, it was submitted, was relevant to Mr Jones’ argument that Mr Roughan was a violent man of whom Mr Jones was afraid, and thus more likely to have committed the murder than was Mr Jones. However, the Court considered that the evidence Mr Jones wanted to lead about that issue was hearsay and not admissible.   Mr Jones also submitted that the Court of Appeal had been wrong to dismiss his appeal given that it had found that the trial judge had misdirected the jury in one respect. The High Court considered that it was open to the Court of Appeal to find that the misdirection did not result in a substantial miscarriage of justice. It considered that the Court of Appeal’s conclusion, that the Crown’s case against Mr Jones was overwhelming, was one that was well open to it.   The Court unanimously dismissed Mr Jones’ appeal against his conviction.

Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18 (29 April 2009)

The High Court allowed Dr Keramianakis’ appeal against a decision of the NSW Court of Appeal that it had no jurisdiction to consider his appeal against a verdict entered by a District Court judge in favour of Regional Publishers Pty Ltd.   Regional Publishers Pty Ltd publishes the Daily Liberal, a newspaper which circulates in Dubbo. In March 2001 the newspaper published an article about a skin cancer clinic operating under the name “Dubbo Skin Cancer Centre” which included comments critical of the services offered at the clinic and of its fees. Dr Keramianakis and a colleague had established and were running the clinic. They sued Regional Publishers for defamation in the District Court of NSW.   Under section 7A of the Defamation Act 1974 (NSW) (the relevant law at the time these events occurred), if the court determined that a publication was reasonably capable of carrying the imputation pleaded by a complainant and that the imputation was reasonably capable of bearing a defamatory meaning, then a jury had to determine whether in fact the publication did carry the imputation pleaded by the complainant and whether the imputation was defamatory.   The trial judge determined that the comments published in the Daily Liberal were reasonably capable of carrying the imputations pleaded by Dr Keramianakis and that the imputations were reasonably capable of bearing a defamatory meaning. He asked the jury to determine whether the comments in fact carried the imputations Dr Keramianakis alleged they carried. In each case the jury answered, “No”. Those answers were fatal to Dr Keramianakis’ case. On the basis of the jury’s answers the trial judge entered a verdict in favour of Regional Publishers Pty Ltd and ordered Dr Keramianakis to pay Regional Publishers’ costs.   Dr Keramianakis appealed to the NSW Court of Appeal. The majority of that Court considered that the District Court Act allowed an aggrieved party to appeal against a judgment or order of a judge following a jury trial. However, it held that a verdict, even when entered by the judge, did not fall within the description of a “judgment or order”. In the case of a District Court civil jury trial, an aggrieved party could only challenge a jury verdict by making an application for a new trial before the judgment against that party had been entered. The majority of the Court of Appeal determined that it did not have the power to hear Dr Keramianakis’ appeal. The Court of Appeal did say that had it had the power to hear the appeal, it would have found in favour of Dr Keramianakis in relation to two of the three imputations the jury was asked to consider, and it would have entered a verdict for Dr Keramianakis in relation to the complaint of defamation contained in those two imputations.   The High Court granted Dr Keramianakis special leave to appeal against the decision of the Court of Appeal and today, in a unanimous decision, held that Dr Keramaniakis had a right to appeal against the orders made by the trial judge in favour of Regional Publishers. This right was not affected by the existence of the procedure which would have allowed him to challenge the jury’s answers by seeking a new trial prior to the verdict being entered.  The Court set aside the orders of the NSW Court of Appeal and ordered that there should be a new trial to determine whether the Dubbo Liberal carried the two imputations alleged by Dr Keramianakis, and if it did, whether the imputations were defamatory.

Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Limited [2009] HCA 19 (30 April 2009)

The High Court handed down a decision about the scope of what is sometimes called the “media safe-harbour” protecting media outlets from liability for misleading or deceptive conduct under the Trade Practices Act.   Section 52 of the Trade Practices Act prohibits a corporation from engaging in misleading or deceptive conduct, or in conduct that is likely to mislead or deceive.  Section 65A of that Act exempts “prescribed information providers” from the application of section 52, except in certain circumstances.  Television broadcasters holding licences under the Broadcasting Services Act 1992 are “prescribed information providers”.  Prescribed information providers do not have the benefit of the exemption where a misleading or deceptive publication concerns the supply or possible supply of goods or services and is made pursuant to a contract, arrangement or understanding with a person who supplies good or services “of that kind”.  Today a majority of the High Court allowed an appeal by the Australian Competition and Consumer Commission (the ACCC) against a decision of the Full Court of the Federal Court, which found that the media exemption under section 65A applied to members of the Channel Seven network. The High Court was required to determine what was meant by goods or services “of that kind”. The case concerned the broadcast of two episodes of Today Tonight containing segments concerning a business called “Wildly Wealthy Women”. The business offered to train women to make money out of real estate investment.   At the hearing of the appeal in the High Court, there was no dispute that the relevant Today Tonight episodes contained untrue claims about the wealth and assets of the two women who were offering the training. Nor was it in dispute that certain representations made in the episodes were misleading and deceptive.  The main question to be determined was whether section 65A exempted the television stations which carried the broadcast from the operation of section 52.  The ACCC argued that because of the arrangement made between the television stations and the two women to broadcast the program, the broadcast was not covered by the section 65A exemption.  The primary judge had held that the television channels were not exempt from the operation of section 52 in these circumstances.  The Full Court of the Federal Court, on the other hand, held that the benefit of the exemption did apply to the broadcasters.  The High Court granted special leave to the ACCC to appeal the decision of the Full Court.   A majority of members of the High Court considered that the primary judge had properly construed section 65A.  The exemption conferred by section 65A does not apply to situations in which a media outlet publishes matter in relation to goods or services where the publication is pursuant to an arrangement with a supplier of goods or services.   The High Court allowed the ACCC’s appeal, set aside the Full Court’s orders and restored the orders made by the primary judge.

The Queen v Edwards [2009] HCA 20 (21 May 2009)

The High Court has decided that a judge of the Supreme Court of Tasmania applied a wrong principle and took account of irrelevant issues when he granted a permanent stay of the trial of two pilots charged with reckless operation of an aircraft. The pilots’ trial will now proceed in the Supreme Court of Tasmania.

Captain Peter Edwards and First Officer Stephen Sarunic were the pilots in charge of a Qantas aircraft which arrived at Launceston Airport on 23 October 2001 to collect 70 passengers who had been stranded. The aircraft arrived at about 10.30pm and took off just after 11pm. The control tower was not staffed between 10pm and 6am, and the pilots themselves were responsible for turning on the runway lighting when arriving at and departing from the airport. While there was no issue concerning the runway lights when the plane landed, witnesses provided inconsistent statements about whether the runway lights were on or off when the aircraft taxied along the runway and took off. Electronic records, which could have assisted in determining whether the runway lights had been activated or whether the pilots had attempted to activate the runway lights, were overwritten before attempts were made to retrieve them.

CASA investigated the incident and in April 2002 referred the matter to the Commonwealth DPP. Complaints against the pilots were not sworn until March 2004. The pilots were committed for trial, but the trial had still not commenced by November 2006. In November 2007 their application for a permanent stay of the trial was heard by a judge of the Supreme Court of Tasmania. The High Court held that the primary judge had applied a test of whether, on the material before him, a continuation of the trial could constitute an unacceptable injustice or unfairness. The primary judge concluded that the factors of overall delay and lost evidence made it appropriate to grant the stay. The High Court granted the Commonwealth DPP special leave to appeal that decision.

In a unanimous decision the High Court confirmed that in exercising the discretion to grant a permanent stay of proceedings, a court should consider whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or whether continuation would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.

The Court noted that it is not uncommon for trials to proceed despite the unavailability of relevant evidence and held that the loss of evidence did not prejudice the pilots. It concluded that no feature of the delay or loss of evidence justified the extreme step of permanently staying the proceedings. The Court set aside the order of the Supreme Court of Tasmania and dismissed the pilots’ application for a permanent stay.

Friend v Brooker [2009] HCA 21 (28 May 2009)

The High Court determined that a director of a company who borrowed from a third party to on-lend the money to the company could not claim contribution from a fellow director toward repaying the third party lender. The remedy of equitable contribution did not apply where there was no co-ordinate liability or common obligation on the part of the two directors.   In May 1977 Mr Frederick Brooker, a civil engineer, and his colleague, Mr Nicholas Friend, agreed that they would set up a construction business together. Although the business relationship was initially created as a partnership, they incorporated the company of Friend & Brooker Pty Ltd on 18 July 1977 to carry on the business. Each of Mr Friend and Mr Brooker was a shareholder and director of the company. Over the years they each obtained loans from family and friends which were then advanced as loans to the company, to ensure the company could continue to operate during periods of financial difficulty. The company’s indebtedness appeared in its books as debts due to either of the directors, Mr Friend or Mr Brooker.

In 1986 Mr Brooker obtained one such loan of $350,000 from SMK Investments Pty Ltd (the SMK loan). By December 1995, with the accrual of interest, the amount needed to repay the loan was $1.1 million.

The company ceased to trade in 1990 and was deregistered in 1996. Thereafter Mr Brooker and Mr Friend disputed the company accounts and who was responsible for repayment of various loans. In 2000 Mr Brooker filed a claim in the Supreme Court of NSW alleging that the company had been a corporate vehicle for the conduct of a partnership or joint venture between the two men. He sought the taking of a full account of the partnership and recovery for loss he had suffered because Mr Friend refused to make equal contribution to the repayment of his personal borrowings made for the purpose of the business. The primary judge dismissed the claim, having found no evidence to support Mr Brooker’s contentions that a partnership or joint venture existed. He considered the law concerning corporate insolvency should determine how the debts owed by the company were be dealt with.

Mr Brooker appealed to the NSW Court of Appeal and, in allowing the appeal, the majority considered that Mr Friend had an equitable duty to contribute equally to repayment of the SMK loan. The High Court granted special leave to Mr Friend to appeal from that decision.

In a unanimous decision, the High Court considered the equitable doctrine of contribution could not be extended to overcome the undisturbed findings of the primary judge that, after the company was created, Mr Brooker and Mr Friend were neither in a partnership nor a joint venture. Mr Brooker and Mr Friend had set up a corporate structure as the vehicle for their business enterprise and the consequences were that companies legislation determined how the debts owed by the company were to be dealt with. The Court also held that there was no fiduciary obligation requiring Mr Brooker and Mr Friend to be personally liable to each other for losses flowing from their personal borrowings. The Court allowed Mr Friend’s appeal and reinstated the decision of the primary judge.