High Court of Australia Judgment Summary Notes

Republic of Croatia v Snedden [2010] HCA 14 (19 May 2010)

On 30 March 2010 the High Court pronounced orders allowing this appeal and confirming the orders of Deputy Chief Magistrate Cloran, who had determined that the respondent was eligible for surrender to the Republic of Croatia for prosecution for war crimes he allegedly committed contrary to Articles 120 and 122 of its Basic Penal Code. The Court has now published its reasons for allowing the appeal.     On 20 January 2006 the Republic of Croatia issued a request to the Australian Government for the extradition of the respondent. His extradition was sought so that he could be prosecuted before a Croatian court for war crimes against prisoners of war (under Article 122) and the civilian population (under Article 120). The crimes are said to have taken place while the respondent was the commander of a unit of Serbian paramilitary troops during the Croatian-Serbian conflict in the early 1990s.     Under s 19(2) of the Extradition Act 1988 (Cth) (“the Act”), a person may only be surrendered if that person does not satisfy the magistrate that there are “substantial grounds” for believing that there is an “extradition objection” in relation to the offence for which extradition is sought. Section 7(c) provides that there is an extradition objection in relation to an offence if “on surrender…the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his race, religion, nationality or political opinions”.   In April 2007, Cloran DCM of the Local Court of New South Wales determined that the respondent was eligible for surrender to Croatia. An application for review of that decision was dismissed by a judge of the Federal Court of Australia in February 2009. On 2 September 2009, the Full Court of the Federal Court allowed the respondent’s appeal, finding that there were substantial grounds for believing an extradition objection existed within the meaning of s 7(c) of the Act. There had been evidence before Cloran DCM that, in sentencing offenders for war crimes, Croatian courts had treated prior service in the Croatian armed forces as a mitigating factor. The Full Court accepted the submission that the application of the mitigating factor in favour of Croatian forces meant that the respondent would, if convicted, be imprisoned for a longer period than a Croatian counterpart. Noting the respondent’s expressed belief in the “self determination of Serbian people in the Balkans”, his significant role as a military commander in the conflict, and the terms of the extradition request (which referred to the conflict between “the armed forces of the Republic of Croatia and the armed aggressor’s Serbian paramilitary troops”) the Full Court found that the mitigating factor is applied by reason of a person’s political beliefs. It held that there were therefore substantial grounds for believing the respondent may be “punished” and that such treatment would occur “by reason of” his political opinions.   The Republic of Croatia was granted special leave to appeal to the High Court on 12 February 2010. On 30 March, following the hearing of the appeal, orders were pronounced allowing the appeal and confirming the orders of Cloran DCM. Today the High Court published its reasons. The Court held that acceptance that the respondent had certain political opinions, and that such opinions motivated him to join the Serbian forces (and precluded his joining the Croatian forces), was not enough to sustain an objection under s 7(c) based on the treatment by Croatian courts of service in the Croatian forces as a mitigating factor. It was necessary for the respondent to show that courts in Croatia apply the mitigating factor because of political opinions. No such conclusion could be drawn from the evidence.

E. & J. Gallo Winery v Lion Nathan Australia Pty Limited [2010] HCA 15 (19 May 2010)

The High Court has held that, for a registered owner to “use” a trade mark in Australia within the meaning of s 94(2)(b) of the Trade Marks Act 1995 (Cth), the owner need not “knowingly project” the goods bearing the mark into the course of trade in Australia. In the case of an overseas manufacturer who registers a trade mark in Australia, affixes the trade mark to goods and then sells them to an overseas trader (without any knowledge as to where the goods will ultimately be sold), the manufacturer can be said to be a “user” of the trade mark in Australia when those same goods are offered for sale and sold in Australia.   E. & J. Gallo Winery (“Gallo”) is a California-based producer and seller of alcohol and the owner of the trade mark “BAREFOOT”. Since 1999 that trade mark has been registered under the Trade Marks Act 1995 (Cth) (“the Act”) in relation to wines. During 2006 and 2007, Lion Nathan Australia Pty Limited (“Lion Nathan”) developed a new beer which was intended to be less bitter than traditional beers (using lemon and lime flavours) and was targeted at non-beer drinkers. It applied to register the trade mark “BAREFOOT RADLER” (“radler” being a German word used to describe a drink of beer mixed with lemonade) and commenced selling the beer under that mark in January 2008.   In February 2008 Gallo commenced proceedings in the Federal Court of Australia alleging that Lion Nathan had infringed its “BAREFOOT” mark contrary to s 120(2) of the Act. Lion Nathan denied there had been an infringement and filed a cross-claim contending that there had been a non-use of the “BAREFOOT” mark within the terms of s 92(4)(b) of the Act and seeking an order for the removal of the trade mark from the Register under s 101(2) of the Act. Section 92(4)(b) provides that a person may apply to have a trade mark removed from the Register on the ground that “the trade mark has remained registered for a continuous period of 3 years ending one month before the day on which the non-use application is filed” (“the non-use period”) if at no time during that period the registered owner “used the trade mark in Australia” or “used the trade mark in good faith in Australia”. The relevant non-use period was 7 May 2004 to 8 May 2007.   Between 9 March 1999 and 17 January 2005 (when Gallo became the registered owner of the “BAREFOOT” mark) the registered owner was Michael Houlihan. Mr Houlihan licensed the mark to a United States company (“Barefoot Cellars”) of which he was president. Under the terms of that licence, Barefoot Cellars applied the “BAREFOOT” mark to its wine and, in 2001, exported 60 cases of the wine to a German distributor without any limitation as to where it could be resold. Some of that wine was ultimately sold to a Victorian liquor wholesaler who commenced selling it in Australia from 2003. During the non-use period, the wholesaler offered for sale 144 bottles of the wine, sold 41 and gave away 18. Gallo conceded that there was no evidence that it, or Barefoot Cellars, or Mr Houlihan knew that, during the non-use period, wine was being offered for sale or sold in Australia under the “BAREFOOT” mark.   The primary judge dismissed Gallo’s infringement claim but allowed Lion Nathan’s non-use claim, finding that the “BAREFOOT” mark had not been “used” within the meaning of s 92(4)(b) and ordering its removal from the Register. The Full Court of the Federal Court of Australia allowed Gallo’s appeal regarding the infringement claim but dismissed its appeal regarding the non-use claim. Gallo’s application for special leave to appeal to the High Court was granted on 31 July 2009. Lion Nathan later sought special leave to cross-appeal regarding the infringement claim and that application was heard together with Gallo’s appeal.   Gallo sought to rebut the allegation of non-use primarily by characterising the attachment of the mark to wine bottles by Barefoot Cellars as a “use” of the trade mark. It submitted that the term “used” refers to use of a trade mark as a badge of origin indicating a connection between goods and the registered owner, and that the “BAREFOOT” mark continued to be “used” in that sense until the wine was purchased from the wholesaler. It contended that it did not matter that neither Mr Houlihan nor Barefoot Cellars knew that the bottles of wine were being offered for sale or sold by the wholesaler in Australia. Lion Nathan submitted that there was no “use” by the registered owner of the trade mark in Australia unless the registered owner had “projected” the goods into the course of trade in Australia.   The High Court held that one function of a trade mark is to “distinguish” the goods of a registered owner from the goods of others and to indicate a connection in the course of trade between the goods and the registered owner. The capacity of a trade mark to perform that function is not dependent on the owner knowingly projecting the goods into the Australian market.  It depends on whether the goods are in the course of trade. Each occasion of trade in Australia, while the goods remain in the course of trade, is a use for the purposes of the Act. The Court held that an overseas manufacturer who has registered a trade mark in Australia and who himself (or through an authorised user) places the trade mark on goods which are then sold to a trader overseas can be said to be a user of the trade mark when those same goods are in the course of trade, that is, are offered for sale and sold in Australia. Having found that Barefoot Cellars was an authorised user, the Court held that the circumstances were sufficient to constitute a use of the “BAREFOOT” mark by the registered owner. The Court allowed Gallo’s appeal and dismissed Lion Nathan’s application for special leave to cross-appeal. The Court declared that, by advertising, offering for sale and selling in Australia beer under the name “BAREFOOT RADLER”, Lion Nathan had infringed Gallo’s trade mark. It issued an injunction restraining Lion Nathan from doing so and remitted the matter to the primary judge for assessment of damages or an account of profits.

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (26 May 2010)

A majority of the High Court has held that the reasons of the Refugee Review Tribunal (“the Tribunal”) for rejecting a Pakistani citizen’s claim to fear persecution on the ground of his homosexuality were not illogical or irrational so as to give rise to a jurisdictional error.   The first respondent arrived in Australia on 3 July 2007 and applied for a Protection (Class XA) visa on 16 August 2007 on the basis of his fear of persecution in Pakistan due to his homosexuality.  A delegate of the Minister for Immigration and Citizenship refused his application and the Tribunal affirmed the delegate’s decision.   Although a citizen of Pakistan, the first respondent had largely resided in the United Arab Emirates (“the UAE”) from 2004, before seeking protection in Australia.  He claimed that, whilst in the UAE, he developed an attraction to members of the same sex and commenced a relationship with another male.  He also claimed that he and that male then commenced a relationship with a third man.  That relationship ended after the third man bashed and threatened the other two when confronted over certain issues.   The Tribunal was not satisfied that the first respondent was in fact a homosexual who feared persecution for two key reasons.  The first was his return to Pakistan for three weeks in May-June of 2007 and the second was his failure to seek asylum when he briefly visited the United Kingdom in 2006.  The Tribunal found that these two actions were inconsistent with the first respondent’s claim to fear persecution in Pakistan.   The first respondent was unsuccessful in his appeal to the Federal Magistrates Court but was successful in a further appeal to the Federal Court (Moore J).  The Federal Court found that the Tribunal fell into jurisdictional error by reaching a conclusion on illogical and irrational grounds.  The Migration Act 1958 (Cth) (“the Act”) requires the Minister, their delegate, or the Tribunal upon review of a decision, to either refuse or to grant a visa depending on whether or not they are “satisfied” that the conditions for that visa are met.  Moore J held that the Act requires the Minister, their delegate, or the Tribunal, to come to that state of satisfaction on, amongst other things, logical and rational grounds.  Failure to do so amounts to a jurisdictional error, reviewable by a court.  His Honour found that the Tribunal’s reasoning was illogical and irrational in that it assumed others in Pakistan would discover that the first respondent was a homosexual during the brief period of his visit without making findings as to how that could be and that, in light of the first respondent’s explanation, there was no logical connection between his failure to apply for protection in the United Kingdom and his fear of persecution in Pakistan.   An appeal by the Minister to the High Court was successful.  By majority, the Court held that it was open to the Tribunal to reject the first respondent’s claimed fear of persecution on the grounds that it did.  Even though reasonable minds may differ as to whether the first respondent’s conduct was such as to be inconsistent with his claimed fear, this alone was not enough to suggest that the reasoning of the Tribunal was so illogical or irrational as to amount to a jurisdictional error.

The Queen v LK; The Queen v RK [2010] HCA 17 (26 May 2010)

On 19 May 2008, the respondents, LK and RK, were charged under s 11.5 of the Criminal Code (Cth) (“the Code”) with conspiring to deal with money worth $1 million or more, being reckless as to the fact that the money was proceeds of crime. The money was part of a larger sum, in the order of $150 million, of which the Commonwealth Superannuation Scheme had been defrauded. Neither respondent was said to be a party to the fraud or to have knowledge of it. However, RK had agreed to a proposal, made by LK at the behest of a third party, that RK’s Swiss bank account be used for the transfer of funds from Australia.   At the conclusion of the Crown’s case in the District Court of NSW, the respondents submitted that there was no case to answer and requested that the trial judge direct the jury to acquit. The trial judge held that the offence with which the respondents had been charged was bad at or unknown to law. The Crown appealed under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) to the NSW Court of Criminal Appeal. That Court dismissed the appeal, holding that, to support the charge of conspiracy under the Code, the Crown had to prove that the respondents knew the facts constituting the offence the object of the conspiracy. Special leave to appeal to the High Court was granted on 19 June 2009.   Before the High Court, the Crown argued that the Court of Criminal Appeal’s interpretation of the Code was incorrect. Today, that argument was rejected. The Court held that a person cannot be found guilty of conspiracy under the Code unless he or she knows — and is not simply reckless as to — the facts that make the proposed act or acts unlawful. In this case, the relevant fact was that the money was proceeds of crime.   The respondents had argued that no appeal lay to the Court of Criminal Appeal because s 107 of the Crimes (Appeal and Review) Act did not come into effect until after the proceedings against the respondents had been commenced. The High Court rejected the argument on the basis that the respondents’ trial commenced with their arraignment in the District Court, which was after 15 December 2006, when the Crimes (Appeal and Review) Act came into operation.   The respondents had also argued that the provision of an appeal by the Crown against a directed verdict of acquittal infringed the guarantee in s 80 of the Constitution of trial by jury for offences against Commonwealth law tried on indictment. This argument was also rejected. The High Court held that the creation of such a right of appeal did not interfere with the jury’s function because a jury can exercise no discretion in the face of a direction from a trial judge to return a verdict of acquittal. As the appeal against the directed verdict involved only questions of law, there was no infringement of s 80 of the Constitution.   The High Court dismissed the appeals and upheld the decision of the Court of Criminal Appeal.

Ansari v The Queen; Ansari v The Queen [2010] HCA 18 (26 May 2010)

The High Court has held that a charge, under s 11.5 of the Criminal Code (Cth) (“the Code”), of conspiracy to commit an offence that has recklessness as its fault element is not bad in law.   The appellants, Hajamaideen Mohamed Ansari and Abdul Azees Mohamed Ansari, are brothers who operated a money exchange business in Sydney. They arranged for the collection and deposit into various bank accounts of approximately $2 million. Each deposit was for an amount less than $10,000 in cash. The appellants were alleged to have made similar arrangements in relation to a further $2 million to $3 million in cash, though they were arrested before receiving any of the money. Under the Financial Transaction Reports Act 1988 (Cth) (“the FTR Act”), banks and other financial institutions are obliged to report cash transactions involving amounts of $10,000 or more to a Federal Government agency. Pursuant to s 31 of the FTR Act, a person commits an offence if he or she is a party to two or more cash transactions involving less than $10,000 and it would be reasonable to conclude that the person conducted the transaction(s) in a particular manner or form so as to avoid the transaction(s) being reported to the relevant federal agency.   The appellants were jointly tried and convicted on charges — under ss 11.5 and 400.3(2) of the Code — of conspiring to deal with money worth $1 million or more, being reckless as to the risk that the money would be used as an instrument of crime. They appealed unsuccessfully to the NSW Court of Criminal Appeal. On 2 October 2009, they were granted special leave to appeal to the High Court from that decision.   The appellants’ principal argument before the High Court was that the charges against them were bad in law because a criminal conspiracy under the Code could not have as its object an offence an element of which is recklessness. They contended that, were it otherwise, such a charge would require proof that the appellants intended to be reckless as to the fact that there existed a risk that the money would become an instrument of crime.   The High Court rejected the argument, holding as incorrect the premise on which it was based — that proof of an intention to commit an offence requires proof of an intention that each physical element of the offence will come into existence and that the fault element specified for that physical element will also come into existence at the same time. What is required, the Court held, is proof of an intention that an act or acts be performed, which, if carried out, would amount to the commission of an offence. The appellants’ argument did not take into account that, under the Code, recklessness may be satisfied by proof of intention or knowledge. Provided that the appellants intended that the conduct upon which they agreed would be carried out and that they knew all the facts that made that conduct criminal, it did not matter that the offence that was the object of the conspiracy charge was one for which the fault element is recklessness.   A second argument — that the Court of Criminal Appeal mischaracterised the physical and fault elements of the offence of conspiracy under s 11.5 of the Code — was rejected for the reasons given in the Court’s decision in R v LK [2010] HCA 17, was also handed down.

The High Court dismissed the appeals.

John Alexander’s Clubs Pty Limited v White City Tennis Club Limited; Walker Corporation Pty Limited v White City Tennis Club Limited [2010] HCA 19 (26 May 2010)

White City Tennis Club Ltd (“the Club”) operated a sporting club on land in Paddington, Sydney, that was part of a larger site owned by Tennis NSW. In 2004, Tennis NSW decided to sell the site. The Club signed a memorandum of understanding (“the MOU”) with John Alexander’s Clubs Pty Ltd (“JACS”) that contemplated the acquisition by JACS of an option over the land on which the Club currently operated (“the Option Land”). The option was to be exercised on behalf of a yet-to-be-formed entity called White City Holdings (“WCH”), which, in the event, was never formed. JACS undertook to procure a further option for the Club in the event that JACS did not exercise the option itself. If no further option could be procured, the Club could require JACS to exercise the option on the Club’s behalf. The MOU was premised on a third party (the Trustees of the Sydney Grammar School (“SGS”)) purchasing the land being offered for sale by Tennis NSW.   SGS was successful in purchasing the land from Tennis NSW. It then entered into a series of agreements with JACS, the Club and another tennis club under which JACS (or its nominee) was granted an option to acquire the Option Land. The last of these (“the Agreement”) provided that JACS and the Club agreed that the MOU continued but that the Agreement would prevail in the event of any inconsistency. The Agreement contained no condition that the option granted under it to JACS (or its nominee) be exercised on behalf of the Club or WCH.   On 12 April 2006, JACS purported to terminate the MOU on the basis that the Club had repudiated it, a suggestion that the Club denied. On 27 June 2007, Poplar Holdings Pty Ltd (“Poplar”) exercised the option as JACS’s nominee and became the registered proprietor of the land. Walker Corporation Pty Ltd (“Walker”) financed Poplar’s purchase; an unregistered mortgage over the Option Land and a floating charge over Poplar’s assets were granted in its favour as security.   On the same day that Poplar exercised the option, the Club commenced proceedings in the Supreme Court of NSW against both JACS and Poplar, alleging that the MOU gave rise to a fiduciary duty on the part of JACS to exercise the option solely on behalf of the Club and that JACS had breached that duty. It argued that Poplar held its interest in the Option Land on a constructive trust for the Club. The Club made other allegations of equitable fraud, unconscionability and breach of the Trade Practices Act 1974 (Cth).   The trial judge dismissed the proceedings, but on appeal to the NSW Court of Appeal the Club was successful. That Court decided that Poplar held its interest in the Option Land on a constructive trust for the Club, that it would be unconscionable for Poplar to deny the Club any entitlement to an interest in the Option Land and that the MOU gave rise to a fiduciary relationship between JACS and the Club. The Court of Appeal ordered Poplar to transfer the Option Land to the Club upon the Club paying the price at which Poplar exercised the option. After the decision of the Court of Appeal, Walker applied to be joined as a party to the appeal and sought an order that the Court of Appeal’s declaration of a constructive trust over the Option Land be set aside or, in the alternative, that it be without prejudice to Walker’s interests. The Court of Appeal refused Walker’s applications. JACS, Poplar and Walker were granted special leave to appeal to the High Court on 3 November 2009.   In a unanimous decision, the High Court decided that Poplar’s exercise of the option granted under the Agreement did not amount to equitable fraud, unconscionable conduct or breach of fiduciary duty. The Court held that JACS was under no obligation to exercise the option granted under the Agreement on behalf of the Club, and that Poplar does not hold the Option Land on constructive trust for the Club. In rejecting the Club’s assertion of a fiduciary relationship between it and JACS, the Court considered that there was no more vulnerability or reliance by the Club with respect to JACS than that between ordinary contracting parties. Nor were there any other factors justifying a finding that a fiduciary relationship existed between the Club and JACS. The Court also held that the Court of Appeal should have borne in mind the impact that a declaration of constructive trust over the Option Land would have on Walker’s interests. It should have set aside its declaration of constructive trust and ordered that Walker be joined as a party to the appeal.   The High Court allowed the appeal by JACS from the Court of Appeal’s first decision, which had the effect of setting aside the orders Walker sought to have set aside. As a result, the High Court dismissed Walker’s appeal from the Court of Appeal’s second decision declining to join Walker as a party to the appeal or to set aside the imposition of a constructive trust.

Dupas v The Queen [2010] HCA 20 (16 June 2010)

On 15 April 2010, the High Court pronounced orders dismissing this appeal, in which the appellant sought to challenge a refusal by the Victorian Supreme Court and Court of Appeal to grant a permanent stay of his murder trial. The Court has now published its reasons for making those orders.    The appellant was charged with the murder, on 1 November 1997, of Mersina Halvagis at Fawkner Cemetery in Melbourne. He applied to the trial judge for a permanent stay of the trial on the ground that the adverse pre-trial publicity about his two previous murder convictions and the current murder charge made a fair trial impossible. The appellant had been convicted in August 2000 of the murder of Nicole Patterson and again in August 2004 of the murder of Margaret Maher. He had been sentenced to life imprisonment upon both convictions. All three women had been killed by knife attack. The two prior convictions and the murder charge had received extensive media publicity over a number of years in newspapers and books, and on internet sites and television programs. The appellant had been identified in the media from an early stage in police investigations as a suspect in the murder of Ms Halvagis.   The trial judge refused the application and concluded that a jury, properly directed, could be trusted to decide whether the appellant’s guilt had been established on the basis of the evidence led in court and without regard to information from other sources. The appellant was convicted on 9 August 2007 and thereafter sentenced to life imprisonment. The Court of Appeal of the Supreme Court of Victoria held that the trial judge had not erred in refusing to grant a permanent stay. A majority of the Court, however, allowed the appeal on other grounds and ordered a re-trial.   The appellant was granted special leave to appeal to the High Court on 12 February 2010 on the question of the permanent stay only. The appellant sought orders for the imposition of a permanent stay or a stay until further order.   At the conclusion of the hearing on 15 April 2010, the Court pronounced orders dismissing the appeal. In its reasons published today, the Court held that the relevant question in determining whether to grant a stay is whether an apprehended defect in a trial is of such a nature that there is nothing the trial judge could do in the conduct of the trial to relieve against its unfair consequences. The Court held that the apprehended defect in the appellant’s trial — the prejudice to the appellant arising out of extensive adverse pre-trial publicity — was capable of being remedied by the trial judge giving thorough and appropriate directions to the jury. The trial judge committed no error of principle in deciding that the appellant’s trial, if allowed to proceed, would be fair. Furthermore, in all of the circumstances of this trial, the pre-trial publicity was not such as to give rise to an unacceptable risk that it had deprived the appellant of a fair trial.

Hogan v Australian Crime Commission [2010] HCA 21 (16 June 2010)

The High Court has held that the Federal Court should not make orders prohibiting or restricting the publication of documents in evidence before it unless they are necessary to prevent prejudice to the administration of justice.   As part of an investigation known as Operation Wickenby, the Australian Crime Commission (ACC) used its powers under the Australian Crime Commission Act 2002 (Cth) to require a firm of accountants to produce documents relating to the appellant, Paul Hogan, and other individuals and entities. An adviser to Mr Hogan commenced proceedings in the Federal Court to restrain the ACC and its Chief Executive Officer from using or disseminating the documents that related to Mr Hogan. Mr Hogan was later joined as a party. The adviser claimed legal professional privilege over the documents on Mr Hogan’s behalf; the ACC disputed the claim. One of the ACC’s arguments was that the documents were made in furtherance of a crime or fraud such that no privilege existed.   During the proceedings, Mr Hogan sought discovery from the ACC in relation to its claim that the documents were made in furtherance of a crime or fraud. An affidavit supporting the discovery application was affirmed by Mr Hogan’s solicitor and filed in court. The exhibit to the affidavit contained a schedule produced by the ACC. The schedule detailed inferences, as to Mr Hogan’s alleged involvement in tax evasion schemes, that the ACC said could be drawn from the documents it had obtained from the firm of accountants. The exhibit also included file notes and accounting advices that concerned Mr Hogan’s taxation and financial affairs. On Mr Hogan’s application (which was not opposed by the ACC), the trial judge made orders under s 50 of the Federal Court of Australia Act 1976 (Cth) restricting the publication of the schedule, file notes and accounting advices, among other documents, to the parties and their legal advisers. Section 50 enables the Court to make such order forbidding or restricting the publication of particular evidence or the name of a party or witness as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.   The ACC later abandoned its reliance on the crime or fraud exception to legal professional privilege, and the proceeding originally brought by Mr Hogan’s adviser was eventually dismissed. However, on 15 July 2008, Mr Hogan sought orders that the restrictions on the publication of the documents contained in the exhibit to his solicitor’s affidavit remain in force. On 5 August 2008, Nationwide News Pty Limited (“News”) and John Fairfax Publications Pty Limited (“Fairfax”) made an application for leave to inspect the documents held by the Registry of the Federal Court in relation to the proceeding. They also sought the vacation of all orders under s 50 of the Federal Court of Australia Act restricting the publication of documents relating to the proceeding. The trial judge refused Mr Hogan’s application, vacated all orders restricting the publication of the documents and gave leave to News and Fairfax to inspect and copy the documents, including the schedule, file notes and accounting advices.   The Full Court of the Federal Court by majority dismissed an appeal by Mr Hogan from the vacation of the order that restricted the publication of the schedule, file notes and accounting advices. By special leave, Mr Hogan appealed to the High Court seeking relief that would have reinstated the s 50 order in relation to the documents and would have dismissed the application made by News and Fairfax for leave to inspect and copy them. Mr Hogan claimed that the trial judge and the Full Court had failed to recognise the inherently confidential nature of the documents.   The High Court today unanimously dismissed Mr Hogan’s appeal. The Court did not agree that the material was inherently confidential. The question was whether an order under s 50 was necessary to prevent prejudice to the administration of justice by the Federal Court. In this context, the Court held that the administration of justice includes not only the generally recognised interest in open justice openly arrived at but also restraints upon disclosure where this would prejudice the proper exercise of the Federal Court’s adjudicative function. The High Court noted that Mr Hogan had not adduced evidence of any specific prejudice that would or might flow from disclosure of the material, nor was he relying on a claim of legal professional privilege over the material. The placing of the material in evidence was a forensic decision.   In relation to the application made by News and Fairfax, the Court held that leave was properly granted to inspect and copy documents held by the Registry because Mr Hogan had adduced no evidence of apprehended particular or specific harm or damage.

Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales [2010] HCA 22 (16 June 2010)

The High Court today held that two policemen, who, in 2003, attended the scene of the Waterfall train crash after the derailment had occurred, were not barred from claiming damages for psychiatric injury on the basis that they had not “witnessed, at the scene, victims being killed, injured or put in peril” within the meaning of s 30(2)(a) of the Civil Liability Act 2002 (NSW).   On 31 January 2003 the appellants, who were serving members of the New South Wales Police Force, attended the scene of the Waterfall train crash. They were among the first to arrive at the scene, soon after the accident had happened, and were directly involved in the rescue operation. They saw injured and deceased passengers. The appellants each brought a claim in the Supreme Court of New South Wales for damages for resulting psychiatric injury against the State Rail Authority of New South Wales (“State Rail”). They alleged that they had suffered psychiatric injuries due to State Rail’s negligence. That negligence was said to be State Rail’s failure to ensure that the train’s “deadman’s” safety device was operating, or was designed to operate, in the event of a driver’s incapacitation.   Section 30(2)(a) of the Civil Liability Act provides that a plaintiff is not entitled to recover damages for pure mental harm unless “the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril”. Both the trial judge and the Court of Appeal concluded that neither appellant had witnessed a victim or victims of the derailment “being killed, injured or put in peril”.   The appellants were granted special leave to appeal to the High Court on 12 February 2010. The Court held that the trial judge should have begun his consideration by asking whether State Rail owed a duty to each appellant to take reasonable care not to cause him psychiatric injury. Assuming, without deciding, that State Rail owed the appellants a relevant duty of care, the Court went on to consider whether the condition in s 30(2)(a) of the Civil Liability Act was satisfied.   The Court held that it would not be right to read s 30(2)(a) as though it were based on the assumption that  all cases of death, injury or being put in peril are events that begin and end in an instant. There are cases where death, or injury, or being put in peril takes place over an extended period, and this was such a case. Two inferences could reasonably be drawn from the given facts: the first was that some who suffered physical trauma in the derailment suffered further injury as they were removed from the wrecked carriages; the second was that many who were on the train suffered psychiatric injuries as a result of what happened to them in the derailment and at the scene. They continued to suffer such injuries after the appellants arrived. The Court held that if either of those inferences was drawn, the appellants witnessed, at the scene, victims of the accident “being injured”. Even if neither of those inferences could be drawn, the appellants nevertheless arrived at the scene of the accident when those who had survived the derailment remained in peril.   The plaintiffs therefore witnessed, at the scene, victims being “injured” or “put in peril”. The Court allowed each appeal and remitted each matter to the Court of Appeal for consideration of whether State Rail owed the appellants a relevant duty of care and whether the appellants suffered a recognised psychiatric injury of which the negligence of State Rail was a cause.