High Court of Australia Judgment Summary Notes

Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd  [2011] HCA 27

The High Court today allowed an appeal by Cumerlong Holdings Pty Limited (“the appellant”) from a decision of the Court of Appeal of the Supreme Court of New South Wales, which had upheld the decision of Smart AJ of the Supreme Court dismissing the appellant’s suit.

The appellant had sought declaratory and injunctive relief to enforce a restrictive covenant which burdened land owned by Australasian Conference Association Ltd (“the third respondent”) for the benefit of land owned by the appellant. In resisting the suit, the third respondent and the previous owner of the burdened land (the first respondent) relied upon cl 68(2) of the Ku-ring-gai Planning Scheme Ordinance (“the Ordinance”), as amended by the Ku-ring-gai Local Environment Plan No 194 (“LEP 194”), which purported to suspend the operation of the restrictive covenant.

However, the High Court (Gummow ACJ, Hayne, Heydon, Crennan and Bell JJ) held that the amendments to cl 68(2) of the Ordinance made by LEP 194 were ineffective to suspend the operation of the restrictive covenant. This was by reason of failure to comply with s 28 of the Environmental Planning and Assessment Act 1979 (NSW). Section 28 required that a planning instrument that had the effect of suspending the operation of a restrictive covenant, such as LEP 194 purported to do, must be approved by the Governor acting on the advice of the Executive Council. This requirement had not been complied with in making LEP 194. As a result, LEP 194 was ineffective to amend cl 68(2) of the Ordinance to effect the suspension of the restrictive covenant burdening the third respondent’s land. As a result, the High Court granted the declaratory and injunctive relief sought by the appellant.

The third respondent was ordered to pay the costs of the appellant’s appeal to the High Court. 

Martin Francis Byrnes & Anor v Clifford Frank Kendle [2011] HCA 26

Today the High Court allowed an appeal from the decision of the Full Court of the Supreme Court of South Australia dismissing a claim by Mr Martin Byrnes and his mother against Mr Clifford Kendle for breach of trust in relation to the renting of a property in Murray Bridge (“the property”).

Mrs Joan Byrnes and Mr Kendle married in 1980 and separated in early 2007. In 1994 the property was purchased. Mr Kendle was the sole registered proprietor. In 1997 Mr Kendle executed an Acknowledgement of Trust declaring that he held a half interest in the property “upon trust” for Mrs Byrnes. In March 2007 Mrs Byrnes assigned to Mr Byrnes her interest in the property.

In December 2001 Mrs Byrnes and Mr Kendle moved out of the property. The property was let by Mr Kendle to his son, Mr Kym Kendle. Kym lived there until early 2007 but paid only two weeks’ rent. In 2008 Mr Byrnes and his mother instituted proceedings in the District Court of South Australia seeking an order for an account for Mr Kendle’s breach of trust in failing to collect rent.

The primary judge held that there was no trust because, although the deed used the words “upon trust”, evidence extrinsic to the Acknowledgement of Trust revealed that Mr Kendle nevertheless lacked the intention to create a trust. His Honour also held that, even if there had been a trust, Mr Kendle was not under a duty to rent the property and that Mrs Byrnes “co-operated” in Mr Kendle’s decision not to press for rent. On appeal, the Full Court of the Supreme Court of South Australia held that the Acknowledgement of Trust created a trust and that Mr Kendle’s subjective intentions were not relevant. However, the Full Court held that Mr Kendle did not have a duty to rent the property or collect rent and that Mrs Byrnes had consented to or acquiesced in Mr Kendle’s inaction. Mr Byrnes and his mother appealed by special leave to the High Court.

The High Court held that, by the terms of the Acknowledgement of Trust, Mr Kendle held a half interest in the property on trust for Mrs Byrnes. Evidence extrinsic to the Acknowledgement of Trust was not admissible to show that there was no intention to create a trust. The High Court also held that Mr Kendle had a duty to rent the property even without any express provision to that effect in the Acknowledgement of Trust. Mr Kendle had a continuing duty to ensure that the rent was paid and, if it were not paid, that a new tenant was found. Mr Kendle’s failure to do so was a breach of duty. He was therefore required to compensate Mrs Byrnes for her interest in the unpaid rent (less her share of the outgoings). The Court held that Mrs Byrnes’ failure to insist upon collection of the rent did not amount to consent to or acquiescence in Mr Kendle’s breach.  

Green v The Queen; Quinn v The Queen [2011] HCATrans 180

 On 24 June 2011, the High Court heard appeals by Shane Quinn and Brett Green against sentences imposed upon them by the Court of Criminal Appeal of New South Wales in respect of offences arising out of an enterprise involving the cultivation of cannabis plants.

Those sentences were imposed following appeals to the Court of Criminal Appeal by the New South Wales Director of Public Prosecutions (“DPP”) against the sentences imposed on Quinn and Green by the sentencing judge. The DPP did not appeal against the sentence imposed on Kodie Taylor, another participant in the enterprise. The sentencing judge had calculated the sentences imposed on Quinn and Green partly by reference to their level of involvement relative to that of Taylor, whom the same judge had sentenced two and a half months earlier. The Court of Criminal Appeal, by majority, allowed the DPP’s appeals and increased the sentences of both Quinn and Green.

Today the High Court allowed the appeals by Quinn and Green and made orders reinstating the sentences originally imposed by the sentencing judge.

The Court will publish its reasons for decision at a later date.

Maurice Blackburn Cashman v Fiona Helen Brown [2011] HCA 22

Ms Brown was a salaried partner employed by Maurice Blackburn Cashman (“MBC”) in its legal practice in Melbourne. Ms Brown alleged that between January and November 2003 she had been “systematically undermined, harassed and humiliated” by a fellow employee, despite complaints and requests for intervention made to MBC’s managing partner, and that, as a result, she had suffered injury, including psychiatric injury.

In December 2005, Ms Brown made a claim against MBC under the Accident Compensation Act 1985 (Vic) (“the Act”) for compensation for non-economic loss. The Act provided for payment of compensation “in respect of an injury resulting in permanent impairment as assessed in accordance with section 91”. Section 91 of the Act prescribed how the assessment of the degree of impairment of a worker was to be made. No compensation was payable if the degree of impairment was less than 30 per cent.

The Victorian WorkCover Authority (“the Authority”) was required under the Act to “receive and assess and accept or reject claims for compensation” and to pay “compensation to persons entitled to compensation under” the Act. In February 2006 the Authority accepted that Ms Brown had a psychological injury arising out of her employment with MBC. Ms Brown disputed the determination of her impairment made by the Authority. The Authority was therefore required by the Act to refer to a Medical Panel, established under the Act, questions relating to the degree of impairment resulting from the injury claimed by Ms Brown and whether she had an injury which was a “total loss”. In June 2006 a Medical Panel provided its opinion that there was a 30% psychiatric impairment resulting from the accepted psychological injury and that the impairment was permanent. Under the Act this was deemed to be a “serious injury” which entitled Ms Brown to bring proceedings against her employer at common law.

In 2007 Ms Brown commenced proceedings in the County Court of Victoria against MBC claiming damages for personal injuries she alleged she had suffered as a result of MBC’s negligence. MBC denied that she had suffered injury, loss and damage. Ms Brown asserted, among other things, that MBC was precluded from “making any assertion whether by pleading, submission or otherwise” and from “leading, eliciting or tendering evidence, whether in chief or in cross-examination or reexamination” that was inconsistent with the Medical Panel’s opinion that she had, as at the date of that opinion, a “serious injury” as defined in s 134AB(37)(c) of the Act, a permanent severe mental disturbance or disorder or a psychological injury arising out of her employment.

The parties asked the trial judge to reserve questions, relating to whether MBC was confined in its defence by the Medical Panel’s opinion, for the opinion of the Court of Appeal of the Supreme Court of Victoria. The Court of Appeal answered those questions adversely to MBC. MBC appealed, by special leave, to the High Court of Australia.

In the High Court the central issue was whether, as the Court of Appeal held, MBC was precluded either by the Act or by estoppel from contesting in evidence or argument in the County Court the existence and extent of Ms Brown’s injury. The High Court held that MBC was not precluded, either under the Act or as a matter of estoppel, from advancing the relevant contentions. Accordingly, the High Court allowed MBC’s appeal.  

Dasreef Pty Limited v Hawchar [2011] HCA 21

Today the High Court upheld findings by the Dust Diseases Tribunal of New South Wales (“the Tribunal”) and the Court of Appeal of New South Wales that a company (Dasreef Pty Limited) was liable to pay compensation to one of its former workers (Mr Hawchar) for silicosis. The High Court found that the Court of Appeal had erred in rejecting complaints by Dasreef about the admission of opinion evidence by the Tribunal and the Tribunal’s reliance on its own experience as a “specialist tribunal”. However, the High Court held that in light of other uncontradicted evidence before the Tribunal the Court of Appeal was right to uphold the finding that Dasreef was liable to Mr Hawchar.

Mr Hawchar worked for Dasreef as a labourer and stonemason over a period of around five and a half years between 1999 and 2005. He was diagnosed with early stage silicosis in 2006. He brought proceedings in the Tribunal, claiming that he had been exposed to unsafe levels of silica dust while working for Dasreef. Mr Hawchar relied on opinion evidence from Dr Kenneth Basden, a chartered chemist, chartered professional engineer and retired academic. At the time Mr Hawchar was working for Dasreef, a standard prescribing the maximum permitted exposure to respirable silica was applicable. In his report, Dr Basden spoke of an operator of an angle grinder cutting sandstone being exposed to levels of silica dust “of the order of a thousand or more times” the prescribed maximum. The Tribunal and the Court of Appeal took this evidence as expressing an opinion about the numerical or quantitative level of exposure to respirable silica encountered by Mr Hawchar, in the sense that it could form the basis of a calculation of the level of exposure.

Section 79(1) of the Evidence Act 1995 (NSW) (“the Evidence Act”) provides that “[i]f a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.” The “opinion rule” contained in s 76(1) of the Evidence Act provides that “[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.”

For a witness to give admissible evidence of an opinion about the quantitative level of Mr Hawchar’s exposure in the conditions under which he worked it would have to be shown that the witness had specialised knowledge based on their training, study or experience that permitted them to measure or estimate such a figure and that the opinion about the level of exposure was wholly or substantially based on that knowledge. In this case, Dr Basden did not give evidence asserting that his training, study or experience permitted him to provide anything beyond a “ballpark” figure estimating the amount of respirable silica dust to which a worker, when cutting stone with an angle grinder, would be exposed. The witness had seen an angle grinder used in that way only once before. He gave no evidence that he had ever measured, or sought to calculate, the amount of respirable dust to which such an operator would be exposed. The evidence was not admissible to establish the numerical or quantitative level of exposure. 

Wainohu v the State of New South Wales [2011] HCA 24

The High Court today held the Crimes (Criminal Organisations Control) Act 2009 (NSW) (“the Act”) invalid.

In July 2010, the Acting Commissioner of Police for New South Wales applied to a judge of the Supreme Court of New South Wales for a declaration under Part 2 of the Act in respect of the Hells Angels Motorcycle Club in New South Wales (“the Club”). Under the Act, a judge who had been designated an “eligible Judge” by the Attorney-General could make a declaration in relation to an organisation. The eligible Judge had to be satisfied that the members of the organisation associated for the purposes of organising, planning, facilitating, supporting or engaging in serious criminal activity and that the organisation represented a risk to public safety and order in New South Wales. Section 13(2) of the Act provided that an eligible Judge had no obligation to provide reasons for making or refusing to make a declaration. If a declaration was made in respect of an organisation, the Supreme Court was empowered, on the application of the Commissioner of Police, to make control orders against individual members of that organisation. A person the subject of a control order was referred to in the Act as a “controlled member”. It is an offence for controlled members of an organisation to associate with one another. They are also barred from certain classes of business and certain occupations.

The plaintiff, Mr Wainohu, is a member of the Club. He applied to the High Court for a declaration that the Act was invalid on the basis that it conferred functions on the Supreme Court and its judges which undermined its institutional integrity in a way inconsistent with Ch III of the Constitution. He also argued that the Act infringed the implied constitutional freedom of political communication and political association. The parties agreed a special case which was referred to the Full Court of the High Court in October 2010.

The High Court held, by majority, that the Act was invalid. The Act provided that no reasons need be given for making a declaration. The jurisdiction of the Supreme Court to make control orders was enlivened by the decision of an eligible Judge to make a declaration. Six members of the High Court held that, in those circumstances, the absence of an obligation to give reasons for the declaration after what may have been a contested application was repugnant to, or incompatible with, the institutional integrity of the Supreme Court. Because the validity of other parts of the Act relied on the validity of Part 2, the whole Act was declared invalid.

The State of New South Wales was ordered to pay Mr Wainohu’s costs.

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