Shuaiqi/CLSum huggingface dataset:
HIGH COURT OF AUSTRALIA 2 December 2015 FAIR WORK OMBUDSMAN v QUEST SOUTH PERTH HOLDINGS PTY LTD & ORS [2015] HCA 45 Today the High Court unanimously allowed an appeal from the Full Court of the Federal Court of Australia. The High Court held that s 357(1) of the Fair Work Act 2009 (Cth) prohibits an employer from misrepresenting to an employee that the employee performs work as an independent contractor under a contract for services with a third party. Quest South Perth Holdings Pty Ltd ("Quest") operated a business of providing serviced apartments and employed Ms Margaret Best and Ms Carol Roden as housekeepers. Contracting Solutions Pty Ltd ("Contracting Solutions") operated a labour hire business. Quest and Contracting Solutions purported to enter into a triangular contracting arrangement under which Contracting Solutions purported to engage Ms Best and Ms Roden as independent contractors under contracts for services, and then purported to provide the services of Ms Best and Ms Roden as housekeepers to Quest under a labour hire agreement. Quest represented to Ms Best and Ms Roden that they were performing housekeeping work as independent contractors of Contracting Solutions, despite the fact that they continued to perform that work for Quest under implied contracts of employment. Section 357(1) provided that: "A person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor." The Fair Work Ombudsman commenced a proceeding in the Federal Court claiming, amongst other relief, pecuniary penalty orders against Quest for contraventions of s 357(1). The Federal Court ordered at first instance that the proceeding be dismissed so far as it related to that claim, and an appeal from that order was dismissed by the Full Court. The Full Court held that s 357(1) would only be contravened by an employer's representation to an employee which mischaracterised the contract of employment that existed between the employee and the employer as a contract for services made between the employee and the employer, not between the employee and a third party. By grant of special leave, the Fair Work Ombudsman appealed to the High Court. The High Court unanimously allowed the appeal, holding that s 357(1) prohibited the misrepresentation of an employment contract as a contract for services with a third party. The Court declared that Quest contravened s 357(1) by representing to Ms Best and Ms Roden that the contracts of employment under which they were employed by Quest were contracts for services under which they performed work as independent contractors.
HIGH COURT OF AUSTRALIA 11 May 2016 ROBERT BADENACH & ANOR v ROGER WAYNE CALVERT [2016] HCA 18 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Supreme Court of Tasmania. The Court held that, in the circumstances of the present case, a solicitor did not owe a duty of care to a beneficiary under a will to advise the testator of the options available to the testator to avoid exposing his estate to a claim under the Testator's Family Maintenance Act 1912 (Tas) ("the TFM Act"). The first appellant ("the solicitor") is a legal practitioner and was a partner of the second appellant, a law firm. The solicitor received instructions from Mr Jeffrey Doddridge ("the client") to prepare his will, by which the entirety of his estate was to pass to the respondent (who was the son of the client's long-term de facto partner). The client's principal assets were two properties which he owned as a tenant in common in equal shares with the respondent. The client died later that year having executed a will drawn by the solicitor in accordance with his instructions. Following the client's death, his daughter from a previous marriage (and for whom he made no provision in his will) brought proceedings under the TFM Act and was successful in obtaining a court order that provision be made for her out of the client's estate. As a result, the client's estate was substantially depleted. The respondent brought proceedings against the appellants in which the respondent claimed that the solicitor had been negligent in failing to advise the client of the possibility that his daughter might make a claim under the TFM Act and the options available to him to reduce or extinguish his estate so as to avoid such a claim. At first instance, the Supreme Court of Tasmania held that the solicitor owed the client a duty of care to enquire as to the existence of any family members and, upon discovering the existence of the client's daughter, to advise the client of the risk to his estate of a successful claim under the TFM Act. However, the primary judge was not satisfied that the solicitor's advice about a possible claim under the TFM Act would have triggered an enquiry by the client about how to protect the respondent's position. The Full Court allowed the respondent's appeal. In their Honours' view, the solicitor's duty to the client extended to advising of the possible steps the client could take so as to avoid exposing his estate to a TFM claim, even if the client did not make any enquiry about those steps. The Full Court also held that the solicitor owed a duty of care to the respondent that was co-extensive with that owed to the client. By grant of special leave, the appellants appealed to the High Court. The High Court held that the duty to the respondent recognised by the Full Court did not arise. The interests of the client were not coincident with the interests of the respondent and as such the solicitor could not owe any duty to the respondent that was co-extensive with the solicitor's duty to the client.
HIGH COURT OF AUSTRALIA 7 September 2005 BANKSTOWN CITY COUNCIL v ALAMDO HOLDINGS PTY LIMITED The Council was not liable for stormwater damage to two industrial buildings owned by Alamdo, the High Court of Australia held today. Alamdo bought its site at Chester Hill in Sydney in 1988. The land is at a low point of the local catchment area and managing director Anthony Maurici was aware of an incident of short-lived flooding of both buildings not long before he bought the site. In 1998 and 2000, parts of the land, including one building on the first occasion, were briefly flooded. A stormwater channel, connected the Council’s drainage system, runs alongside the land. Water ran into the channel from a “gross pollutant trap” or barrage where two 2.4-metre stormwater pipes met near the property’s boundary. Alamdo brought a nuisance action in the New South Wales Supreme Court. Justice Ian Gzell held that the frequency with which the land was likely to be inundated had significantly increased from once every five to 10 years in 1960 to more than once every two years by 1998. This affected plans for the site and was an unreasonable interference with the use and enjoyment of the land. Justice Gzell granted an injunction restraining the Council from causing or permitting stormwater from inundating the land and ordered the Council to carry out abatement works which the Council estimated would cost $1.5 million. A valuer called by the Council estimated the value of the site had diminished by more than $1.4 million, while Alamdo claimed the figure was higher and that the risk of flooding had cut rental values for both buildings. Justice Gzell did not award damages. The Court of Appeal dismissed both an appeal by the Council and a cross-appeal by Alamdo, but it suspended the injunction pending the outcome of the High Court appeal by the Council. The Council based the appeal on its contention that section 733 of the NSW Local Government Act provided an exemption from liability for decisions about land liable to flooding. The High Court unanimously allowed the appeal. It held that a body such as the Council is not, without negligence on its part, liable for a nuisance attributable to the exercise of, or failure to exercise, its statutory powers. The Court rejected Alamdo’s contentions that section 733 did not extend to protecting the Council from exposure to injunctive relief and that the Council had not acted in good faith so could not rely upon section 733. The Court held that section 733 applied in this case.
HIGH COURT OF AUSTRALIA 12 October 2022 BOSANAC v COMMISSION OF TAXATION & ANOR [2022] HCA 34 Today, the High Court unanimously allowed an appeal from the Full Court of the Federal Court of Australia. The appeal concerned whether the appellant ("Ms Bosanac") held half of her interest in a residential property ("the Property") on trust for her husband, the second respondent ("Mr Bosanac"), where the purchase money was paid jointly by Ms and Mr Bosanac. Ms Bosanac purchased the Property with loans held and taken out jointly with Mr Bosanac, secured against properties they each separately owned. The Property was registered in Ms Bosanac's name alone and used as the matrimonial home of the Bosanacs. Mr Bosanac never claimed an interest in the Property. Ms and Mr Bosanac had a history of holding their substantial real and other properties in their own names and using them as security for joint loans. The first respondent ("the Commissioner") is a creditor of Mr Bosanac. The Commissioner, relying upon the presumption of resulting trust, sought a declaration that Ms Bosanac holds half of her interest in the Property on trust for Mr Bosanac. The Commissioner argued that the presumption of advancement of a wife by her husband, which operates to preclude a resulting trust from arising, is no longer part of the law of Australia in relation to the matrimonial home. The primary judge dismissed the Commissioner's application, holding that the presumption of advancement arose in Ms Bosanac's favour, and that the evidence did not support an inference that Mr Bosanac intended to have an interest in the Property. The Full Court allowed an appeal, holding that the presumption was rebutted by the evidence in this case. The High Court held the presumption of resulting trust will not arise where there is evidence from which it may be inferred that the parties' objective intention is inconsistent with the person providing the purchase money obtaining an interest in a property. The "presumption" of advancement allows an inference to be drawn from the fact of certain relationships, such as husband and wife, that the presumption of resulting trust will not arise. When evidence of the way in which the spouses deal with their property is given, inferences to the contrary of the presumption may readily be drawn. Both presumptions cease to be of practical significance other than in a rare case where the totality of evidence is incapable of founding an inference as to what the purchaser intended. The question of intention as to whether a trust arises is entirely one of fact, and the facts of this case do not give rise to such an intention. The proper inference to be drawn from the objective facts was that the parties objectively intended Ms Bosanac to be the sole beneficial owner of the Property, and that Mr Bosanac was merely facilitating Ms Bosanac's acquisition of the Property. The Commissioner invited the Court to abolish the presumption of advancement as having no acceptable rationale and being anomalous, anachronistic, and discriminatory. The Court refused, observing the "presumption" of advancement is an entrenched "land-mark" of the law in Australia.
HIGH COURT OF AUSTRALIA 14 March 2018 IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING MS JACQUI LAMBIE [2018] HCA 6 Today the High Court published reasons for orders it made on 6 February 2018. Those orders were that Mr Steven Martin is not incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution. On 8 December 2017 the High Court, sitting as the Court of Disputed Returns, answered questions referred to it by the Senate under s 376 of the Commonwealth Electoral Act 1918 (Cth) ("the Act") concerning Ms Jacqui Lambie. The answers given by the Court included that, by reason of s 44(i) of the Constitution, there was a vacancy in the representation of Tasmania in the Senate for the place for which Ms Lambie was returned at the federal election held on 2 July 2016, and that the vacancy should be filled by a special count of the ballot papers. The special count that was conducted identified Mr Martin as one of the candidates who would be elected as a senator for Tasmania as a result of the special count. On 13 December 2017, Nettle J stated for the consideration of the Full Court the question of whether Mr Martin is incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution. Mr Martin has at all relevant times held the elected offices of mayor and of councillor of Devonport City Council, a local government corporation established under the Local Government Act 1993 (Tas) ("the Local Government Act"). In respect of each office, Mr Martin has a statutory entitlement to be paid a substantial annual allowance by the Council. There was no dispute that the positions which Mr Martin held answered the description of "offices of profit". The issue before the Court was whether the positions were offices of profit "under the Crown" within the meaning of s 44(iv), which would render Mr Martin "incapable of being chosen or of sitting" as a senator. The Court unanimously held that the offices of mayor and of councillor held by Mr Martin are not offices of profit "under the Crown" within the meaning of s 44(iv). A majority of the Court held that the particular conflict to which s 44(iv) is addressed is that which would arise from a member of Parliament holding at the will of an executive government an office in respect of which he or she receives a financial gain. The majority held that the Local Government Act did not confer on the executive government of Tasmania effective control over the holding of or profiting from the office of mayor or of councillor. The Court unanimously held that Mr Martin is not incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution.
HIGH COURT OF AUSTRALIA 14 August 2019 GLENCORE INTERNATIONAL AG & ORS v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA & ORS [2019] HCA 26 Today the High Court unanimously dismissed proceedings by which the plaintiffs, being companies within the global Glencore plc group, sought an injunction restraining the defendants – the Commissioner, the Second Commissioner and the Deputy Commissioner of Taxation – and any other officer of the Australian Taxation Office from making any use of documents described as the "Glencore documents", on the basis that those documents are subject to legal professional privilege. The High Court held that legal professional privilege is not an actionable legal right capable of sounding in injunctive relief. The plaintiffs identified the Glencore documents as having been created for the sole or dominant purpose of the provision by Appleby (Bermuda) Limited ("Appleby"), an incorporated law practice in Bermuda, of legal advice to the plaintiffs. They were amongst documents known as the "Paradise Papers", which were stolen from Appleby's electronic file management systems, provided to the International Consortium of Investigative Journalists, and further disseminated. After becoming aware that the Glencore documents were in the defendants' possession, the plaintiffs asserted that those documents are subject to legal professional privilege, and requested that the defendants return them and provide an undertaking that they would not be referred to or relied upon. The defendants did not accede to those requests. The plaintiffs brought proceedings in the original jurisdiction of the High Court, seeking an injunction in equity's auxiliary jurisdiction restraining the defendants' use of the Glencore documents and orders requiring the delivery up of the documents. The plaintiffs claimed that legal professional privilege was a sufficient basis for the grant of the injunction sought, and did not seek to rely on the equitable doctrine of breach of confidence, or to expand any other area of law. The defendants demurred on the principal ground that no cause of action was disclosed by which the plaintiffs were entitled to that relief. The Court upheld the demurrer on the principal ground, holding that legal professional privilege is not a legal right which may found a cause of action. The privilege is only an immunity from the exercise of powers that would otherwise compel the disclosure of privileged communications. The Court held that policy considerations cannot justify the creation of a new, actionable right respecting privileged documents in circumstances where that development is not available having regard to the state of settled principles. The Court observed that on the present state of the law, once privileged communications have been disclosed, resort must be had to the equitable doctrine of breach of confidence for protection respecting the use of that material.
HIGH COURT OF AUSTRALIA 4 May 2016 [2016] HCA 17 Today the High Court unanimously dismissed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales. The High Court held that the Court of Criminal Appeal was correct to quash the sentences imposed by the sentencing judge and re-sentence the appellant as was done. The appellant shot and wounded the deceased, who was a police officer, while the deceased was lawfully executing a search warrant in company with other police officers on premises in close proximity to the appellant's home. The shot struck the deceased in the arm, thereby causing him a serious but non-fatal gunshot wound. In the course of the fire-fight which ensued, one of the other police officers fired a shot which was intended for the appellant, but which unfortunately instead hit the deceased in the neck, thereby inflicting a wound from which he later died. About two weeks before these events, the appellant was the victim of an attempted robbery. The Crown accepted that it could not exclude as a reasonable possibility that the appellant honestly believed that the deceased was someone posing as a police officer who was intent on robbing the appellant. The appellant pleaded guilty to one count of manslaughter and one count of wounding with intent to cause grievous bodily harm. The appellant was taken to have accepted responsibility for killing the deceased by excessive self-defence on the basis that, by firing at the deceased, he substantially contributed to the ensuing exchange of gunfire where it was reasonably foreseeable that someone in the vicinity of the exchange might be fatally, even if inadvertently, shot. The appellant was sentenced by a judge of the Supreme Court of New South Wales to a total effective sentence of nine years and six months' imprisonment. On a Crown appeal, the Court of Criminal Appeal held, with reference to R v De Simoni (1981) 147 CLR 383 ("De Simoni"), that the sentencing judge erred in her assessment of the objective gravity of the offence of manslaughter by contrasting it with what the sentencing judge supposed would have been the gravity of the offence if the appellant had known that the deceased was a police officer. The Court of Criminal Appeal also considered that the sentencing judge erred by not cumulating part of the sentence imposed for the offence of wounding on the sentence imposed for the offence of manslaughter. The Court of Criminal Appeal was satisfied that the sentences were manifestly inadequate. The Court of Criminal Appeal quashed the sentences and re-sentenced the appellant to a total effective sentence of 17 years and two months' imprisonment. By grant of special leave, the appellant appealed to the High Court. The High Court unanimously dismissed the appeal, holding that although the Court of Criminal Appeal's reference to De Simoni was misplaced, it was correct to hold that the sentencing judge erred in her assessment of the objective gravity of the offence of manslaughter and correct to quash the sentences imposed by the sentencing judge and re-sentence the appellant as was done.
HIGH COURT OF AUSTRALIA 29 September 2010 KOSTAS & ANOR v HIA INSURANCE SERVICES LIMITED T/AS HOME OWNERS WARRANTY & ANOR [2010] HCA 32 In August 1999, the appellants engaged a builder to undertake substantial renovations to their home. By June 2000, disputes had arisen and the appellants purported to terminate the building contract. They made a claim with HIA Insurance Services Limited ("HIA"), the statutory insurer of the builder's work. Upon HIA rejecting the claim, the appellants commenced proceedings in September 2000 against HIA and the builder in the Consumer, Trader and Tenancy Tribunal of New South Wales. In a decision handed down in May 2005, the Tribunal held that the appellants had not validly terminated the contract. Central to this decision was a finding that the builder had served two claims for extensions of time in accordance with the contract and that the appellants had not disputed those claims in the manner required by the contract. The appellants appealed against the Tribunal's decision to the Supreme Court of New South Wales under s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). At the relevant time, that section provided for a right of appeal to the Supreme Court against a decision by the Tribunal of "a question with respect to a matter of law". The appellants contended that there was no evidence properly before the Tribunal that supported its finding that the builder had served time- extension claims in accordance with the contract. They contended that, as a result, the Tribunal had made an erroneous decision of a question with respect to a matter of law. The Supreme Court agreed, finding that the termination of the contract was lawful and effective and quashing the Tribunal's decision. HIA successfully appealed to the Court of Appeal on the basis that there was no "question with respect to a matter of law" to attract the Supreme Court's jurisdiction. The Court of Appeal held that a contention that there was no evidence to support a factual finding of the Tribunal could not form the basis of a statutory appeal under s 67 of the Consumer, Trader and Tenancy Tribunal Act. The appellants were granted special leave to appeal to the High Court against the Court of Appeal's decision. Today, the High Court allowed the appeal and restored the decision of the Supreme Court. The Court held that the question whether there was no evidence to support a factual finding of the Tribunal was a question with respect to a matter of law. The factual finding in this case was that the builder had served the relevant time-extension claims. The Court held that there was no evidence before the Tribunal upon which it could make this finding. The jurisdiction of the Supreme Court under s 67 was properly invoked and the decision of the judge at first instance on this point was correct.