Michel Baini v The Queen [2012] HCA 59
Today a majority of the High Court allowed an appeal by Mr Michel Baini against the decision of the Court of Appeal of the Supreme Court of Victoria to uphold his convictions for blackmail of Mr Hassan Rifat. The High Court remitted the matter to the Court of Appeal for its further consideration.
The appellant and another accused were charged with numerous counts of blackmail. All but one of the charges alleged blackmail of Mr Rifat. The other count alleged blackmail of Mr Nicholas Srour. In the course of the trial, an application was made to sever the trial of the count relating to Mr Srour but the trial judge refused that application. The jury found the appellant guilty of some of the counts, including the count relating to Mr Srour.
The appellant appealed to the Court of Appeal, which held that the trial judge should have severed the trial of the count relating to Mr Srour. The Court of Appeal concluded that this error resulted in a substantial miscarriage of justice in the trial of the count relating to Mr Srour but not in the trial of the counts relating to Mr Rifat. It therefore ordered that there be a new trial of the count relating to Mr Srour but upheld the appellant’s convictions for blackmail of Mr Rifat. By special leave, the appellant appealed to the High Court in relation to his convictions for blackmail of Mr Rifat.
A majority of the High Court allowed the appeal. The majority held that, because all the counts were tried together, the jury heard prejudicial evidence from Mr Srour which would not have been admissible in a separate trial of the counts alleging blackmail of Mr Rifat. Unless this error could have had no effect on the jury’s guilty verdicts, the error in refusing to sever the counts resulted in a substantial miscarriage of justice in the trial of the counts about Mr Rifat. The Court of Appeal not having considered whether the error could have had no effect on the outcome of the trial having regard to the full record of the trial, and the High Court not having available to it the full record, the majority allowed the appeal and remitted the matter to the Court of Appeal for its further consideration.
The Public Service Association and Professional Officers’ Association Amalgamated of NSW v Director of Public Employment [2012] HCA 58
Today the High Court unanimously upheld the validity of a provision of the Industrial Relations Act 1996 (NSW) which requires the Industrial Relations Commission of New South Wales to give effect to regulations declaring aspects of government policy.
The Industrial Relations Commission is constituted by judicial and non-judicial members and it exercises certain functions conferred upon it by the Act. Other functions conferred by the Act are exercised by the Industrial Court of New South Wales, and that Court is constituted only by the judicial members of the Commission.
The central provision in this appeal was s 146C(1) of the Act. That sub-section provides that the Industrial Relations Commission must “give effect to any policy on conditions of employment of public sector employees … that is declared by the regulations to be an aspect of government policy that is required to be given effect to by the Commission” when making or varying any award or order. The Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 (NSW) stated policies affecting the conditions of employment of public sector employees, among which was a limitation upon the increases in remuneration that the Commission could award.
The appellant brought proceedings in the Industrial Court challenging the validity of s 146C(1). The appellant claimed that it undermined the integrity of the Industrial Court for its judicial members to be required to give effect to policy declared in regulations when sitting as, and exercising the functions of, the Commission. The Industrial Court rejected that claim and the appellant, by special leave, appealed to the High Court.
The High Court unanimously dismissed the appeal. Although s 146C(1) and the Industrial Relations (Public Sector Conditions of Employment) Regulation used the words “policy” and “government policy”, the policies contemplated by s 146C(1) (and those contained in the Regulation) were no different from any other laws (including any applicable statutes and regulations) which the Industrial Relations Commission must apply in exercising its functions. It cannot undermine the integrity of the Industrial Court for its judicial members to apply the law as it stands from time to time when sitting as, and exercising the functions of, the Commission.
New South Wales v Williamson [2012] HCA 57
The High Court today held that a claim for personal injury damages based on an intentional tort was a claim for personal injury damages within the meaning of s 338(1) the Legal Profession Act 2004 (NSW) (“Legal Profession Act”) and that a claim for personal injury damages under s 338(1) of the Legal Profession Act did not include a claim for damages for false imprisonment.
The respondent sued the State of New South Wales (“State”) in the District Court of New South Wales for damages for trespass to the person and false imprisonment. The respondent alleged that the State was vicariously liable for the actions of police officers who had thrown him to the ground, restrained him, and confined him in a police wagon and then released him without charge. The action in the District Court of New South Wales was settled and orders were made by consent to dispose of the proceedings. The damages awarded were for $80,000, with costs to be assessed or agreed.
As no agreement could be reached about the costs that were to be allowed, the respondent applied for an order transferring the proceedings to the Supreme Court of New South Wales and for a declaration that costs in the proceedings were not regulated by s 338 of the Legal Profession Act.
Section 338(1) of the Legal Profession Act provided that where the amount recovered on a claim for personal injury damages did not exceed $100,000, the maximum costs for legal services provided to a plaintiff were fixed at 20% of the amount recovered or $10,000, whichever is greater.
Section 337(1) of the Legal Profession Act provided that “personal injury damages” had the same meaning as in Part 2 of the Civil Liability Act 2002 (NSW) (“Liability Act”). The Liability Act limited awards for personal injury damages. The awards limited by the Liability Act were subject to specific exceptions contained within the Liability Act. The central points of difference between the parties were, first, whether the definition of “personal injury damages” was to be construed by reference only to the words of the definition in the Liability Act or by reference to both the words of the definition and the limited operation which the Liability Act had in respect of awards of personal injury damages as a result of the relevant exclusions contained within the Liability Act and, secondly, whether a claim for personal injury damages extended to a claim for false imprisonment.
In the Supreme Court of New South Wales, it was ruled that the respondent’s claim for costs was not regulated by s 338(1) of the Legal Profession Act. An appeal to the Court of Appeal of the Supreme Court of New South Wales was dismissed. By special leave, the State appealed to the High Court.
The High Court dismissed the appeal. A majority of the Court held that s 338(1) of the Legal Profession Act applied if the amount recovered on a claim for personal injury damages did not exceed $100,000, whether the claim is framed in negligence or as an intentional tort. The majority also held that a claim for personal injury damages does not include a claim for damages for false imprisonment, which would commonly include damages for deprivation of liberty. As the settlement was a lump sum settlement and the agreed settlement amount could not be attributed between the claim for trespass and the claim for false imprisonment, it was not possible to say whether the settlement sum was for damages for personal injury.
Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56
The High Court today held that claims for personal injury damages based on intentional acts were claims for personal injury damages within the meaning of s 198D of the Legal Profession Act 1987 (NSW) (“Legal Profession Act”). The respondents were assaulted by hotel security staff. They sued the appellant, as the insurer of the company that employed those staff, for trespass to the person claiming damages for personal injuries allegedly inflicted intentionally and with intent to injure.
The damages awarded in each case were for less than $100,000, with a declaration made that each respondent’s costs for legal services were subject to s 198D of the Legal Profession Act. Section 198D of the Legal Profession Act provided that where the amount recovered on a claim for personal injury damages did not exceed $100,000 the maximum costs for legal services provided to a plaintiff were fixed at 20% of the amount recovered or $10,000, whichever was greater.
Section 198C of the Legal Profession Act provided that “personal injury damages” had the same meaning as in the Civil Liability Act 2002 (NSW) (“Liability Act”). The Liability Act limited awards for personal injury damages. The awards limited by the Liability Act were subject to specific exceptions contained within the Liability Act, including where personal injury resulted from intentional acts. The central point of difference between the parties was whether the definition of “personal injury damages” was to be construed by reference only to the words of the definition in the Liability Act or by reference to both the words of the definition and the limited operation which the Liability Act had in respect of awards of personal injury damages as a result of the relevant exclusions contained within the Liability Act.
In the District Court of New South Wales it was ruled that the respondents’ claims were for personal injury damages as defined under s 198D of the Legal Profession Act. On appeal, the Court of Appeal of the Supreme Court of New South Wales held that the costs for legal services were not subject to s 198D of the Legal Profession Act. By special leave, the insurer appealed to the High Court.
The High Court allowed the appeals. A majority of the Court held that the claims which the respondents made were claims for personal injury damages within the meaning of s 198D of the Legal Profession Act.
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia and upheld an assessment by the Commissioner of Taxation (“the Commissioner”) that Publishing and Broadcasting Ltd (“PBL”) (later called “Consolidated Media Holdings Ltd”) made a capital gain when shares it held in Crown Ltd (“Crown”) were bought back by Crown in an off-market share buy-back.
PBL owned all of the ordinary shares in Crown. On 28 June 2002, PBL and Crown entered into an agreement for PBL to sell some of its shares back to Crown for $1 billion. Crown recorded a debit of $1 billion in a new account labelled “Share Buy-Back Reserve Account”. It also maintained a 
“Shareholders Equity Account”, which had a credit balance and in which no entry was recorded in relation to the share buy-back.
In an off-market share buy-back, the difference between the purchase price and any part of the purchase price that is debited against amounts standing to the credit of the company’s “share capital account” is treated for income taxation purposes as a dividend paid by the company. At the relevant time, “share capital account” was defined in s 6D of the Income Tax Assessment Act 1936 (Cth) (“the ITAA 1936”). The Commissioner took the view that the $1 billion purchase price was debited against amounts standing to the credit of Crown’s “share capital account”, so that no part of the purchase price was to be taken to be a dividend. The Commissioner therefore assessed PBL to have made a capital gain on the sale of its Crown shares. PBL objected to the Commissioner’s assessment and the Commissioner disallowed the objection. PBL appealed to the Federal Court against the disallowance of its objection. The primary judge dismissed the appeal on the basis that Crown’s “share capital account” comprised both its Shareholders Equity Account and its Share Buy-Back Reserve Account. The Full Court of the Federal Court allowed an appeal, holding that Crown’s “share capital account” did not include its Share Buy-Back Reserve Account.
The High Court held that an account that is a record of a transaction into which a company has entered in relation to its share capital, or that is a record of a company’s financial position in relation to its share capital, is a “share capital account” within the meaning of s 6D(1) of the ITAA 1936. It also held that s 6D(2) required all share capital accounts to be treated as a combined “share capital account”. Accordingly, the $1 billion consideration PBL received under the share buy-back agreement was debited against amounts standing to the credit of Crown’s “share capital account” and the Commissioner was correct to have assessed PBL as having made a capital gain.
Westfield Management Limited v AMP Capital Property Nominees Limited [2012] HCA 54
Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales regarding the terms of a unitholders’ agreement between two corporations. The High Court held that the terms of the agreement did not fetter a party’s statutory right to vote for the winding up of a managed investment scheme under the Corporations Act 2001 (Cth) (“the Act”).
Westfield and AMP Capital Property Nominees are the unitholders of a trust set up to acquire and operate a shopping centre in Perth. The trust is a managed investment scheme registered under the Act. AMP sought to invoke its right under the Act to vote on a resolution to direct that the scheme be wound up, and requested that a members’ meeting be convened for that purpose. AMP was in a 
position to carry the resolution alone because it holds two-thirds of the units in the trust. Westfield opposed the resolution and obtained an injunction from the Supreme Court of New South Wales preventing AMP from voting in favour of it without Westfield’s prior consent. Westfield relied upon two provisions of its unitholders’ agreement with AMP. The first prohibits the sale of trust property without the written consent of the unitholders, and the second requires members to exercise their voting rights in a way that gives effect to the “intent and effect” of the agreement. The Supreme Court held that by voting for a winding up without Westfield’s consent, AMP would breach the second provision because a winding up would inevitably lead to the shopping centre being sold.
AMP appealed to the Court of Appeal of the Supreme Court of New South Wales. The Court of Appeal held that “intent and effect” of the prohibition on selling trust property without consent did not include preventing a sale following a determination of the trust. Therefore, the restriction on how voting rights could be exercised did not preclude AMP from voting in favour of the resolution to wind up the scheme. The injunction was set aside.
Westfield appealed by special leave to the High Court. The High Court unanimously dismissed the appeal. The Court held that, on its proper construction, the prohibition on selling trust property without consent is directed to a sale during the continuance of the scheme; it does not apply where a resolution is passed by members to wind up the scheme, even if that would result in the trust property being sold.
Papaconstuntinos v Holmes a Court [2012] HCA 53
Today a majority of the High Court dismissed an appeal brought by the appellant, Mr Tony Papaconstuntinos, against a finding that the respondent, Mr Peter Holmes à Court, had successfully made out a defence to a defamation claim brought against him by the appellant. The defamation claim arose out of events surrounding a proposal put forward by the respondent in 2005, according to which he and Mr Russell Crowe would inject $3 million into the South Sydney District Rugby League Football Club (“the Club”) in exchange for a controlling interest in its management. The proposal was to be put to a vote of the Club’s members at a general meeting. The appellant, a board member of the Club, was firmly opposed to the proposal. Two days prior to the scheduled meeting, the respondent sent a letter to the appellant’s employer making certain allegations about the appellant.
At a trial in the Supreme Court of New South Wales, it was found that the letter conveyed three imputations that were defamatory of the appellant. The respondent pleaded the common law defence of qualified privilege. The trial judge rejected that defence on the basis that the respondent lacked a sufficient interest in making the statements complained of. The respondent successfully appealed to the Court of Appeal of the Supreme Court of New South Wales.
In his appeal to the High Court, the appellant submitted that the respondent could only make out the defence of qualified privilege if he could show that there had been a “pressing need” for him to make the statements. The requirement of “pressing need” was said to arise from the fact that the respondent’s statements were made voluntarily and in the protection of interests that were purely personal. The High Court, by majority, rejected that contention. The defence of qualified privilege requires the maker of a defamatory statement to demonstrate reciprocity of duty and interest: that the maker had a duty to make, or an interest in making, the statement and that the recipient of the statement had a duty to hear, or an interest in hearing, that statement. There is no superadded requirement of “pressing need” that arises in circumstances where a defamatory statement was made voluntarily and to protect personal interests. The appeal was dismissed with costs.
