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Legal Herald - by Craig Hill

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Legal Herald

Alcopops Dispute Fizzes Out In Federal Court

April 22nd 2009 06:17
The Federal Government has been taking a variety of measures intended to reduce "binge drinking". One of those measures has been to increase rates of duty and excise on "ready to drink" mixed drinks known as Alcopops. Many of you have been following the fate of measures intended to raise customs duty on imported products and to raise excise duty on such products distilled here.

The Federal Government raised the rate of duty and excise by "Tariff Proposal" last year without legislation, allegedly as a measure to stop binge drinking by young people using the products. This was effected by the use of "Tariff Proposals" which were introduced into Federal Parliament prescribing increased rates of customs duty (by Customs) and excise duty (by the ATO). These measures are used to quickly introduce the new measures while awaiting the passage of legislation to formally implement the increased tariffs.

Generally the process is reasonably non controversial with the legislation being passed to validate the collection of duties according to the Tariff Proposals. However, this should not be construed as meaning that the process is actually legal. A number of High Court cases have held that the collection of increased duty in these circumstances is illegal. Many commentators have made observations to the same effect. Indeed, Cooper's classic text on Customs and Excise describes the process as being tantamount to "extortion". The ability for Customs and the ATO to undertake the collections is however, protected by provisions in the Customs Act and the Excise Act which state that even in the absence of validating legislation, no action can be brought against the illegal collection for a period of 12 months (or until the session of Parliament finishes if that is earlier ). The issue has rarely been contentious in recent times as the validating legislation has generally been passed.

If the validating legislation is not passed in the 12 month time period that leaves a number of interesting questions, not the least the process of claiming back the overpayments, the refunding of the amounts which had been overpaid, the correct recipients of the refunds and whether the parties who made the overpayments are entitled to interest. We have formed some views on these issues which may or may not yet need to be tested

In the case of the Alcopops duties and excise, as many would be aware, the legislation to support the increases was defeated by a sole Senator in the Senate (holding the balance of power) who wanted TV advertising of alcohol banned during family viewing hours on TV which was not forthcoming. The measures seemed defeated which raised issues of refunds. However, the distillers are now taking a voluntary ban on TV advertising as requested. The Senator has said that if that can be legislated he will support the measure which will allow the legislation to pass just before the 12 month deadline (13 May 2009), allowing the Government to keep the revenue collected and continue to impose the higher rates of duty and excise.

In the meantime, the Government has not withdrawn the Tariff Proposal meaning that Customs and the ATO continue to collect the higher rates of duty and excise as directed by Government.

Against this politics, the legal position has become even more controversial by a very recent application brought by one company (Suntory) against the ATO in the Federal Court with the support of the Distillers Industry association. The thrust of the action is seeking an interlocutory injunction against the ATO (not Customs) to stop the collection of the increased excise as the measure was apparently defeated during the last sitting of Parliament. Some novel arguments have been raised that the protections against collection of excise without legislative support only apply to past and not future action so that future collections should not be permitted – a version of the argument that there can be "no collection without legislation". The Federal Government opposed the proceedings and in doing so, sought a stay on the hearing of the application until 14 May 2009 – being the date 12 months after the introduction of the Tariff Proposal and also the beginning of the next sitting of Parliament at which time the fate of the measures will probably have been resolved through the political agenda and the continued collection of the measures will either have been confirmed or rejected so that refunds will then be payable.

The judge of the Federal Court has today (15 April 2009) ordered that Suntory's application be stayed until after midnight on 13 May 2009, reflecting the 12 month protection granted in the Excise Act. The application in respect of the substantive claim, being the refund of the duty, still has to be heard and a decision made on the application. Although if the measures are not passed and the Government voluntarily refunds the duty, the parties may agree that the application be dismissed.

As you would expect, there were a lot of people watching the proceedings closely even if they potentially only would have had an impact for a month in this case. The fact that the Court would not hear Suntory's application prior to the 12 month period passing certainly clarifies the position in respect of the future use of the Tariff Proposal approach.

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Posted By: Craig Hill - Category: Health
   


Another Trip And Fall Case Rejected

January 15th 2009 12:50
The Queensland Court of Appeal [McMurdo P, Fraser JA and Mackenzie AJA] has upheld the decision of the Supreme Court in another trip and fall case where the primary judge held that the unfortunate injury was not caused by the negligence of the respondent but rather the plaintiff's own carelessness.

ELLIS V UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q) [2008] QCA 388

FACTS

The plaintiff, Mr Ellis, was walking home late on a rainy evening. He had consumed alcohol in the hours leading up to the incident but not enough to impair his ability to keep a proper lookout. He was in a hurry to get home and out of the rain. The fall occurred on the driveway of the premises run by Lifeline. The area of the fall was poorly illuminated due to the absence of a nearby street light.

Trip and Fall Case Lost


The plaintiff was well aware of the protruding paver.

He struck his foot on the raised paver and lost his balance.

The plaintiff was unable to walk after the accident and had to crawl to the shelter of a nearby tree until someone found him which did not happen for many hours.

Evidence was led that the respondent engaged in a system of regular inspection of the premises, noting possible danger areas and organising remedial work by a tradesman or volunteer if necessary.

It was accepted that the passage of vehicles over the pavers caused them to become uneven and accepted that this occurred to the extent that it was recognised by the respondent as creating a risk. The pavers were later replaced with pebblecrete.

AT TRIAL

The plaintiff had merely encountered a normal hazard of daily life on that evening ie unevenness on a road or footpath. This is accepted as an everyday aspect of life. Although the respondent knew of the hazard there was no duty on it to remove a slight and obvious danger. Although it was a foreseeable risk, the law of negligence would depart from the concept of fault according to everyday standards if it imposed a duty to protect pedestrians on footpaths against such a hazard. Skoien AJ drew on the decisions of Neindorf v Junkovic [2005] 222 ALR 631 and Ghantous v Hawkesbury City Council [2001] 206 CLR 512.

ON APPEAL

The plaintiff's Counsel on appeal attempted to argue that the trial judge had erred in not determining Mr Ellis' claim on the basis that the respondent's duty to him was that owed by a commercial occupier to members of the public: Australian Safeway Stores Pty Ltd v Zaluzna [1987] 162 CLR 479 rather than the less demanding duty owed by an occupier to entrants of "ordinary residential premises": Neindorf v Junkovic.

This was rejected by the Court of Appeal.

The Court distinguished the cases of Pascoe v Coolum Resort Pty Ltd [2005] QCA 354 involving a fall during the course of the plaintiff's employment and Turnbull v Alm & Anor [2004] NSWCA 173 involving a fall by a pedestrian on a footpath owned by a shopkeeper.

The respondent was not the occupier of the land. However, the primary judge had generously assumed that a duty of care was owed by the respondent as if it had occupied the driveway, namely a duty of care under the ordinary principles of negligence to take reasonable care for the safety of entrants. Here the magnitude of the risk and the degree of probability of an accident was so slight that reasonableness did not require any corrective action on behalf of the respondent.

Although appreciated by both Courts that the Civil Liability Act 2003 (Qld) applied the case did not require relevant departure from the common law principles.

This case can be added to the growing body of authority supporting a finding of no breach of duty for everyday hazards on footpaths.
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Posted By: Craig Hill - Category: Litigation
   


Ten Major Developments In Commercial Litigation In 2008

January 11th 2009 12:11
Economic conditions, court decisions, and a new Federal Government all will generate changes during 2009. The following are the top ten developments according to Clayton Utz Solicitors.

Top Ten Development Commercial Litigation


1. Economic downturn triggers a rise in litigation

As the economy slowed in 2008, litigation departments became increasingly busy. Demand for litigation has traditionally been counter-cyclical. The conventional wisdom is that in boom times, failed deals are simply put down to the cost of doing business but when the economy comes off the boil, companies are more likely to litigate. With deals scarce on the ground, companies are more inclined to take action to recover their losses.

In addition to advising on failed deals, litigation teams have been kept busy by insolvency-related litigation and actions mounted by aggrieved investors, unaccustomed to margin calls and investment losses.

2. The rise and rise of litigation funding

2008 was a bumper year for litigation funders. The Aristocrat class action was settled for a record $145 million and agreements were signed to fund class actions against Centro, ABC Learning, Octaviar and Pan Pharmaceuticals, just to name a few.

Those companies, which fund class actions in exchange for a share of any settlement or damages award, are having a dramatic impact on commercial litigation. Working with plaintiff lawyers, they have essentially developed a new type of litigation: the financial sector class action. Boardrooms are now on notice that it is not just the regulators who are scrutinising their company announcements, financial statements and share price movements. Litigation funders are constantly on the look out for their next class action.

3. Last year of the Gleeson-led High Court

August 29 marked the end of the Gleeson era, as the 11th Chief Justice of the High Court reached the constitutional retirement age. The Gleeson court will be fondly remembered by the business community. Gleeson promoted consensus on the bench which resulted in over a decade of stability and certainty in the law affecting commercial relations.

Gleeson's legacy also includes returning the principle of personal responsibility to the law of negligence and confirming the expanded jurisdiction of the Commonwealth through the Workchoices decision.

4. Sub-prime litigation

The fallout from the sub-prime crisis triggered an explosion of litigation in the USA in 2008. We saw a similar spike in litigation after the dot com bust in 2000. What is different this time around is the range of parties that are being sued. Actions have been brought against essentially every participant in the securitisation process from mortgage originators and real estate agents, to ratings agencies, issuers of sub-prime backed bonds and accounting firms.

Sub-prime litigation in Australia has been more confined. Actions have been brought against companies caught out by the liquidity freeze and at least one arranger of structured finance products. Recently, there has also been talk of actions being launched against ratings agencies.

5. Spotlight on the cost of litigation

How to keep litigation costs under control was again a key issue in 2008. In the shadow of the C7 appeal, various proposals were mooted to discourage mega-litigation including abolishing the tax deductibility of legal costs. The review of the Victorian civil justice system recommended a range of measures to reduce the cost of litigation such as narrowing the scope of discovery. Such a proposal would be welcomed by clients and lawyers alike. The forensic benefit of complex discovery processes rarely justifies the costs involved and unless this process can be streamlined, parties will be increasingly reluctant to litigate.

We would not be surprised if the courts take action on this issue. We predict that over the next twelve months we will see a trend towards more active case management by the courts including an increase in orders for compulsory mediation prior to discovery.

6. A new government

Faced with a severe financial crisis in its first full year on the job, the Rudd government resisted the temptation to over regulate. It will however, be interesting to see what flows from the government's review of credit ratings agencies and its survey of company directors. With many in the media calling for greater regulation of the financial services industry, we could see the development of new laws and causes of action in 2009. In terms of its broader legislative agenda, significant amendments were made to the Trade Practices Act and the Attorney General, Robert McClelland, took steps towards a uniform national approach to proportionate liability.

7. Push for an action for invasion of privacy gathers pace

The debate about personal privacy was brought to a head in 2008, with the Australian Law Reform Commission recommending the introduction of a statutory cause of action for a serious invasion of privacy. Calls for greater protection of individuals' privacy have grown louder since defamation laws were watered down in 2005. Under the national defamation laws, the media are free to publish anything that is true, no matter how personal. It will be interesting to see whether the government will be prepared to adopt the ALRC's recommendation and risk upsetting powerful media lobbies. If the government does not act, we predict that a common law action will be developed by the courts.

8. Protecting privilege

The protection of client legal privilege was the sleeper issue of 2008. Since the decision in the Federal Court case of Rich v Harrington was handed down at the end of last year, claims for privilege over communications with in-house lawyers are being far more closely scrutinised by the courts. There is a plain risk for companies that commercial strategy will be revealed through the loss of privilege over internal communications.

In this environment, the time is right for businesses to conduct a privilege audit. To reduce their exposure to litigation risk, companies now need to review their internal structures and processes to ensure in-house lawyers have sufficient independence to maintain claims for privilege.

9. Criminalising cartels

The headline issue in trade practices law in 2008 was the release of draft laws to criminalise serious cartel conduct. If the draft legislation is ultimately enacted, offenders will risk gaol sentences of up to 5 years and fines of up to $220,000 for individuals and $10 million for corporations. The expansion of white collar crime provisions into the trade practices field will bring Australia in to line with many overseas jurisdictions, including Germany, the US and the UK.

10. An emboldened regulator?

After enduring accusations over the years of being too conservative in its approach to prosecuting corporate misfeasance, the Australian Securities and Investments Commission took the bold move of launching a $200 million action against KPMG over its auditing of various Westpoint entities. Some commentators have suggested that this marks the emergence of a more emboldened regulator. On the whole, 2008 was a litigious year for ASIC. The corporate regulator's prosecution of former directors of James Hardie went to trial in September and it has 16 actions relating to the Westpoint collapse on foot.

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Posted By: Craig Hill - Category: Litigation
   


State Of Mind And Waiver Of Privelege

January 10th 2009 11:49
Do you impliedly waive privilege in your legal advice by putting in issue your state of mind? Generally speaking, two distinct approaches emerged, a broad view and a narrower view, but recently the narrower view has prevailed. The NSW Court of Appeal recently signalled however that it might be prepared to take a broader view of issue waiver when a party has put in issue his or her state of mind.

Key Point

* If the Court of Appeal's comments are followed, framing a case might be enough to inadvertently waive privilege.

Broad vs narrow

An example of the broad view is the decision in Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152. BT claimed that Telstra had engaged in misleading and deceptive conduct which induced it to enter into an agreement. Telstra then sought discovery of legal advice received by BT, on the basis that the advice went to BT's state of mind when it entered into the agreement. Even though BT did not refer to any legal advice, the Court found that privilege had been waived.

State Of Mind Waiver Of Privilege


The High Court then handed down its decision in Mann v Carnell (1999) 201 CLR 1. By focusing on the notion of inconsistency, Mann v Carnell caused a shift away from the broad formulation in Telstra. For example, in Liquorland (Australia) Pty Ltd v Anghie (2003) 7 VR 27 Justice Byrne held that the putting in issue of a relevant state of mind (one of reliance or otherwise) is merely the starting point for an examination of whether privilege has been waived. The chronological coincidence of the legal communication and the establishment of that state of mind does not of itself determine the question.

The comments in Archer

Council of the New South Wales Bar Association v Archer [2008] NSWCA 164 concerned the application of waiver in the context of certain provisions of the Legal Profession Act 1987 (NSW). In that case Justice Hodgson (with Justice Handley agreeing) made certain general obiter observations about the common law principles of issue waiver:
"What would involve inconsistency and relevant unfairness is the making of express or implied assertions about the content of the privileged communications, while at the same time seeking to maintain the privilege. In this respect, it may be sufficient that the client is making assertions about the client's state of mind, in circumstances where there were confidential communications likely to have affected that state of mind" [emphasis added].

Is this a return to the broad view in Telstra, and perhaps a widening of the scope of that principle beyond Telstra and certainly beyond Mann v Carnell?

"Likely to have affected"

Previous cases referred to the likelihood of legal advice having contributed to a state of mind in the context of the dates and descriptions of specific known documents. But what does "likelihood" mean here? It could have two meanings:

* it could qualify the existence of confidential communications; or

* it could qualify the probability of those communications having affected the privilege holder's state of mind.

If it refers to the likelihood of the existence of the documents, a court would then need to determine the likelihood that a party has obtained legal advice, which would throw up some practical problems:

* Should a court assume that a large corporate entity is more likely to have received legal advice than an individual litigant?

* An affidavit of documents might not reveal the existence of legal advice because of the practice of using a general catch-all to describe privileged documents, so a notice to produce might be necessary - but neither of these will reveal if oral advice has been taken. How then should a court determine if it has been?

If "likely" is intended to qualify the impact of a privileged communication on the privilege-holder's state of mind, additional complex questions arise:

* Is the test an objective or subjective one?

* What degree of likelihood is required?

* How is the test to be applied where there is more than one decision-maker, for example, several company directors?

A return to the broad old days?

It may be that the comments of the Court of Appeal in Archer were intended to be read more narrowly. This would be consistent with earlier decisions of Justice Hodgson appearing to support the narrow view.

The narrow view certainly has much going for it as a matter of principle; not only does it protect the status of privilege as an essential common law right, it is consistent with the test in Mann v Carnell. The necessary unfairness stems from the inconsistency which would arise if a privilege-holder were allowed on the one hand to use privileged material to advance his or her position, while at the same time asserting privilege over that material.

If, however, the Court is signalling that it is prepared to reconsider the position, and the broader view were to become accepted again, there could be serious ramifications for litigants. It could be that merely pleading a cause of action which is based on reliance (for example, a section 52 TPA claim) could be said to be inconsistent with a claim for privilege, even though the privilege-holder has not disclosed part of legal advice - indeed, he or she would not be seeking to rely on any advice.

It is clear that, nearly a decade after Mann v Carnell, the profession would benefit from a clarification of these issues at appellate level.

Original article by Clayton Utz
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Posted By: Craig Hill - Category: Litigation
   


Breach Of Confidence Claims And Awards Of Damages

January 9th 2009 11:31
Previously, the Victorian Court of Appeal awarded damages for the distress caused by the unauthorised showing of a private sex tape. It is worth looking at the decision in Giller v Procopets [2008] VSCA 236, and its potential consequences, in more detail.

Key Points

* Damages are now available for pure mental distress for breach of confidence claims, where the essence of the claim is that there has been a misuse of private information. This could have important consequences for the media in Australia.

* In this case, the Victorian Court of Appeal chose to adapt the existing action of breach of confidence rather than recognise a novel action for breach of privacy.

In Giller v Procopets, the Victorian Court of Appeal declined to decide whether a common law action for breach of privacy currently exists in Australia. However, it is the first Australian appellate decision to follow a line of English authority allowing damages for emotional distress for breach of confidence, in cases where that action is akin to a tort of "misuse of private information". These cases have most commonly involved the tabloid media publishing surreptitiously obtained photographs of celebrities.

Breach Of Confidence


Accordingly, the decision is important for both its impact on the approach taken to developing privacy law in Australia, and its consequences for Australia's media and others who have the power to disclose "private information".

The parties and the relationship of confidence

Mr Procopets and Ms Giller were in a de facto relationship. After they ceased living together, they continued to have sex. Mr Procopets filmed a number of these sexual encounters on a hidden video camera. At first, Ms Giller was unaware of the filming but later she acquiesced in it. After the relationship deteriorated, Mr Procopets attempted to show the videos to several of Ms Giller's family and friends. Although several refused to watch it, he did show the video to the mother of one of her friends. Further, he phoned her employer and said that he had a video of her engaging in sexual activity, in circumstances where (he said) it was unethical for her to do so.

Shortly thereafter, Mr Procopets was arrested and a restraining order (which included a restraint on the distribution of the videos) was taken out. However, six months later Mr Procopets showed the video to another woman he was in a relationship with and his bail was revoked.

Ms Giller sought damages for publication of the videos as part of a broader civil action (including a de facto property dispute and civil claims for assault). Ms Giller relied on three causes of action: breach of confidence; breach of privacy; and intentional infliction of mental harm. We deal only with the actions for breach of confidence and breach of privacy.

Breach of confidence

The Court of Appeal overturned the trial judge's decision that damages could not be awarded for "mere distress" not amounting to psychiatric injury. Justice Neave, with whom President Maxwell agreed, said that because "the Australian position [was] at large on this issue" the Court could, in line with one suggested approach in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, develop the action for breach of confidence by following the English decisions in Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457, Douglas v Hello! Ltd [2006] QB 125, and Cornelius v De Taranto [2001] EMLR 12. While acknowledging these decisions were based in part on the right to privacy in Article 8 of the European Convention and the Human Rights Act 1998 (UK), Justice Neave thought that to find damages were not available, "in circumstances where no other substantial remedy is available, would ... illustrate something was wrong with the law". Accordingly, she held that damages for distress should be available "where the essence of the plaintiff's case is that he or she has been embarrassed by the exposure of private information."

Justice Ashley agreed, citing amongst his reasons the lack of any conflicting authority, the anomalous situation of an injunction being obtainable where damages were not, and the fact that similar damages would be recoverable in an action for defamation.

Justice Neave and President Maxwell awarded damages of $40,000, including $10,000 in "aggravated damages" because Mr Procopets had acted with the "deliberate purpose of humiliating, embarrassing and distressing Ms Giller". However, Justice Ashley would have awarded no more than $27,500, including $7,500 for aggravation. None of the judges awarded exemplary damages, citing both the decision in Harris v Digital Pulse (2003) 56 NSWLR 298 and the fact that Mr Procopets had already been punished by the criminal law, as a bar to doing so.

Breach of privacy

At first instance, the trial judge had held that the common law had "not developed to the point where the law in Australia recognises an action for breach of privacy" ([2004] VSC 113 per Justice Gillard). Just as the High Court did in ABC v Lenah Game Meats Pty Ltd, the Court of Appeal sidestepped the issue, stating that it was unnecessary for it to decide this point in light of its findings in relation to the action for breach of confidence. In doing so, Justice Ashley commented that "the development of such a tort would require resolution of substantial definitional problems... which might contraindicate such a development". Justice Neave simply commented on the divergent approaches which had been adopted in England and New Zealand, the two Australian first instance decisions which have recognised an action for breach of privacy, Grosse v Purvis [2003] Aust Tort Reports ¶ 81-706 and Doe v ABC [2007] VCC 281, and the recommendation of the Australian Law Reform Commission to develop a statutory cause of action.

The significance of the decision

In a legal sense, the decision is important because it is the first time an Australian appellate court has accepted the High Court's invitation to adapt a recognised form of action to "identify and protect interests of a kind which fall within the concept of privacy"1 Whether the courts continue with this approach, or whether either a senior level court or the legislature bites the proverbial bullet and develops an action for breach of privacy remains to be seen.

The key aspect of the decision was the willingness of the Court to award damages for emotional distress, falling short of a recognised psychiatric injury. In a practical sense, this is important because it removes a major obstacle to individuals suing for this type of breach of confidence; after all, distress, hurt and embarrassment are likely to be the most common human reactions to the misuse of private information. This is particularly important for Australia's tabloid media, who now risk damages awards for the distress caused by publishing long-lens photographs, footage from hidden cameras or other "private information". This is in addition to the potential damages they had previously faced for trespass or defamation, albeit using these causes of action had some considerable difficulties. This decision represents an important swing back of the legal pendulum, from freedom of the press to an individual's right to privacy, following several years of increased reporting powers (eg. the removal in some jurisdictions of the need to show publication was in the public interest for a truth defence in defamation).2

Although the decision removes the major legal obstacle to the use of breach of confidence as a de facto tort of misuse of private information, it should be noted that there are still a number of practical obstacles to its widespread use in Australia, particularly where the media is concerned.

One barrier is likely to be the relative cost of bringing such a claim, compared to the potential damages;3 particularly given that it appears that exemplary damages will not be available.

A second potential barrier might be the need for an initial confidential relationship. In reality, it is unclear whether an initial confidential relationship is still required to found the action for breach of confidence in Australia,4 or whether we have already taken, or will in the future go down, the English path of imposing "a 'duty of confidence' whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential" (Campbell v MGN [2004] 2 AC 457). If an initial confidential relationship is still required, this will often act as a practical barrier to claims made against the media, who will rarely be in such a relationship with the subject/owner of the information (although sometimes they may have received the information from someone who was).5 If an initial confidential relationship is not required, as Justice Hampel found in the Victorian County Court case of Doe v ABC,6 then the implications of this case for the media could be significant.

Finally, if the Australian courts do continue to develop breach of confidence to deal with the misuse of private information, in cases where it is applied to the media it is likely they will try to balance the often competing rights of privacy and freedom of the press. In England (and other jurisdictions such as New Zealand and the USA), this has resulted in allowing the publication of otherwise private information, if it is of legitimate public interest (eg. the publication of details of an affair of a politician who had run for office on a platform of family values).

Footnotes

1 Such an approach was advocated by Justices Gummow and Hayne, and Chief Justice Gleeson, in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. The previous two Australian decisions on the issue were at a county/district level: See Doe v ABC [2007] VCC 281 and Grosse v Purvis [2003] Aust Tort Reports 81-706.

2 For a discussion of this issue, see Peter Keel & Norm Lucas, 'Managing Reputation - An Industry' in The Sydney Papers¸ 20(1), Summer 2008, 13.

3 In Grosse v Purvis $30,000 was awarded for wounded feelings following stalking and harassment. In Doe v ABC, $25,000 was awarded for distress, after details of a rape victim's identity were published by the ABC.

4 Because this case clearly involved a confidential relationship (ie. a private sexual relationship), the Court was not required to analyse whether an initial confidential relationship is still a necessary element for a breach of confidence in Australia. The English position was noted in footnote 391 of Justice Neave's judgment.

5 Such a requirement was removed in England in AG v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109.

6 Justice Hampel relied, at least in part, on the comments of Chief Justice Gleeson in ABC v Lenah Game Meats to support her view.
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Second Thoughts Do Not Justify Reinstatement

January 7th 2009 10:08
In Fitzsimmons and Comcare [2008] AATA 919, the Administrative Appeals Tribunal (Tribunal) rejected Mr Fitzsimmons's application to reinstate his claim on the basis that it was 'dismissed in error' under section 42A(10) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

BACKGROUND

Mr Fitzsimmons appealed a decision by Comcare that it was not liable to pay compensation for viral hepatitis B, allegedly contracted as a result of his employment with the Australian Customs Service.

In August 2006, Mr Fitzsimmons's lawyer, Mr Stockley, wrote to the Deputy Registrar of the Tribunal seeking withdrawal of his application on the basis that there was insufficient evidence to directly support the claim.

On 25 August 2008, Mr Fitzsimmons wrote to the Tribunal requesting that his application be reinstated.

Mr Fitzsimmons argued that the application should be reinstated on the basis that it had been dismissed in error because Mr Stockley had not investigated all possible causes of hepatitis B.

Mr Fitzsimmons also argued that his withdrawal was also compounded by his depression, which affected his understanding of the withdrawal.

AAT Fitzsimmons Comcare


DECISION

The Tribunal found that Mr Fitzsimmons had full knowledge of the reasons and consequences of withdrawing his application.

In coming to this conclusion, the Tribunal considered the following matters:

* Mr Fitzsimmons's reliance on the authority in Re Stevenson and Comcare [2005] AATA 870 that if an applicant has an arguable case, they should not be denied the opportunity to have their claim reviewed.
* The scope of section 42A(10) of the AAT Act extends to errors by a party or a party's representative: Goldie v Minister of Immigration and Multicultural Affairs [2002] FCAFC 367.
* Whether Mr Stockley was at fault for not fully investigating the possibility that the hepatitis B may have been contracted through sweat exchanges.
* Whether Mr Fitzsimmons had an awareness of the consequences of withdrawing his application and had given fully informed consent to the withdrawal.
* The relevance of Mr Fitzsimmons's depression.

The Tribunal noted that Re Stevenson was a case that was decided in relation to applications for extension of time rather than applications for reinstatement.

Despite the fact that his solicitor had not fully investigated all possible ways in which the virus could have been contracted, the Tribunal considered that at the time of the withdrawal there 'was no decisive evidence either way'. Therefore, it noted, Mr Stockley had recommended that Mr Fitzsimmons pursue a claim for depression instead.

The Tribunal found that Mr Fitzsimmons accepted Mr Stockley's advice, and had discussed it with his wife. The Tribunal did not accept that any subsequent medical evidence, or legal advice to the contrary, did not amount to an error in relation to the decision to withdraw the application.

Mr Fitzsimmons's depression was not found to have influenced his knowledge of the consequences of withdrawal.

IMPLICATIONS

This case demonstrates that merely having second thoughts about a decision to withdraw is not a sufficient ground to have a claim reinstated. If an applicant is fully aware of the reasons for withdrawal and its implications and proceeds to withdraw the application in that knowledge, the Tribunal is unlikely to allow reinstatement of their application.
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Jurisdiction To Review An Out Of Time Claim

January 5th 2009 09:58
In Bain v Military Rehabilitation and Compensation Commission [2008] AATA 884, the Administrative Appeals Tribunal (Tribunal) was satisfied that it had jurisdiction to review decisions which the Commission had conceded could be reviewed out of time.

BACKGROUND

Mr Bain was injured during his Army Service in October 1969. Claims for compensation and other relevant records were lost, however determinations had been made on 19 April 1971 and 26 November 1975 rejecting the claims for compensation. A request made in 1999 for an extension of time to request a reconsideration of the determinations was subsequently refused.

By a decision given on 27 September 2006 (Bain and Military Rehabilitation and Compensation Commission [2006] AATA 822), the Tribunal made a provisional decision on the following matters:

* The decision dated 16 May 1999 not to allow an extension of time within which Mr Bain could request reconsideration of determinations made in 1971 and 1975 is a reviewable decision.
* Mr Bain made a claim for compensation on or about 10 December 1969 in which he referred only to his knee collapsing when he was in his living quarters and did not refer to jumping from the back of a truck.
* Mr Bain made a further claim for compensation on or about 19 November 1974 in which he referred to an injury sustained as a result of two events, namely jumping from the back of a truck and the knee collapsing when he was in his living quarters.

AAT Claim Out Of Time


By a further decision given on 21 August 2008 (Bain and Military Rehabilitation and Compensation Commission [2008] AATA 730), it was decided that Mr Bain had not given an acceptable explanation for the delay in seeking review of the determination of 26 November 1975. It was found that Mr Bain had rested on his rights and did not pursue his claim for very many years. In all the circumstances, the Tribunal was not persuaded that it would be just to grant an extension of time in respect of the 1975 determination.

The position relating to the 1971 determination was noted to be different, as Mr Bain provided an acceptable explanation for the delay in pursuing his claim. Whilst the length of delay was considered to be extreme, accepting that there were special circumstances, the Tribunal did not think that the extent of prejudice suffered by the Commission was as great as might ordinarily result from such an extreme delay. It was therefore considered that not granting an extension of time would cause Mr Bain to suffer much greater prejudice from being unable to pursue what, on the information presently before the Tribunal, was apparently a meritorious claim.

A formal decision was delayed as the parties had requested the opportunity to consider whether the Tribunal should remit this matter to the Commission for reconsideration pursuant to section 42D of the Administrative Appeals Tribunal Act 1975.

DECISION

By its decision dated 3 October 2008, the Tribunal noted that, rather than the parties making further submissions as to whether the matter should be remitted for reconsideration under section 42D, the Commission had suggested that, in the unusual circumstances of the present matter, the Tribunal should proceed with the substantive application for review of the decision dated 19 April 1971. Mr Bain agreed with this proposed course of action. The Tribunal was satisfied that it had the jurisdiction notwithstanding that the Commission had not reconsidered the primary decision on the merits. That was on the basis that there had been a refusal to consider the request for reconsideration, which constitutes a deemed decision reviewable by the Tribunal.
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Damages For A Risk Of Injury Where Damages Already Paid

January 3rd 2009 09:09
In Muscat v Comcare [2008] AATA 872, the Administrative Appeals Tribunal (AAT) considered whether an employee was entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in circumstances where he had settled an action for damages against the Commonwealth in the Dust Diseases Tribunal of NSW (DDT).

In making its decision, the AAT looked at the nature of the settlement of the damages action and considered the concept of 'injury' for the purposes of the SRC Act.

AAT damages


PREVIOUS ACTION FOR DAMAGES

Mr Muscat had filed a statement of claim in the DDT on 25 August 1999 claiming damages for a number of injuries including, relevantly, asbestosis and increased risk of developing lung cancer.

As part of Mr Muscat's claim, he sought an order for further damages pursuant to section 11A of the Dust Diseases Tribunal Act 1989 (DDT Act). Section 11A was noted to be a provision peculiar to the DDT which allowed Mr Muscat to re-open his claim for damages without having to re-visit the issue of liability if he developed certain nominated diseases, including lung cancer, in the future.

On the day of settlement of the damages action, in which judgment was entered against the Commonwealth in the sum of $165,000 inclusive of costs, an amended statement of claim was filed, which omitted any claim pursuant to section 11A of the DDT Act.

ISSUE BEFORE THE AAT

There was no dispute that Mr Muscat had developed lung cancer and that his exposure to asbestos, whilst employed by the Commonwealth, was a material contributing factor.

Comcare argued, however, that the settlement entered into by Mr Muscat in the DDT resulted in his receiving damages in respect of lung cancer and therefore section 48 of the SRC Act operated to prevent the payment of compensation under that Act.

Mr Muscat argued that any damages awarded for the increased risk of developing lung cancer were not damages 'in respect of an injury in respect of which compensation was payable'.

The AAT was therefore required to consider whether Mr Muscat did recover damages in respect of an injury, lung cancer, in respect of which compensation was payable under the SRC Act.

AAT'S DECISION

The AAT noted that the SRC Act defined 'injury' as:

1. A disease suffered by an employee; or
2. An injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment.

The AAT referred to the High Court decision in Canute v Comcare (2006) 225 CLR 535 at 540 regarding the concept of 'an injury':

'At this juncture, three things may be observed about the concept of 'an injury'. First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of 'the injury'. Secondly, the term 'injury' is not used in the Act in the sense of 'workplace accident'. The definition of 'injury' is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Further, the term 'injury' is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to 'disease' or 'physical or mental' injuries and, at least to that extent, it assumes that an employee may sustain more than one 'injury''.

The AAT accepted that, at common law, damages could not be assessed until actual loss or damage was suffered: Scarcella v Lettice and Anor (2000-01) 51 NSWLR 302 at 306.

The AAT also considered the phrase 'in respect of', which was held by Justices Deane, Dawson and Toohey in Workers' Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 at 653 to '[gather] meaning from the context in which it appears and it is that context which will determine the matters to which it extends'. The AAT quoted the following passage from that decision:

'The most that can be drawn from these decisions dealing with differently worded provisions is that the use of the phrase 'in respect of' does not, of itself, extend the meaning of an expression such as 'damages in respect of injury to any worker' so as to include damages payable to a person other than the worker'.

The AAT considered that the passage could be rephrased to state that the phrase 'in respect of' does not of itself extend the concept of injury as a result of one disease, for example, asbestosis to another disease, namely lung cancer, although both had the same cause, being exposure to asbestos.

It was held that the head of damage in the statement of claim, the risk of developing lung cancer, was peculiar to the DDT and could not affect the definition of 'injury' under the SRC Act.

The AAT found that the decision in Canute made it clear that 'injury' in the terms of the SRC Act means 'the resultant effect of an incident upon an employee's body' and that in Mr Muscat's case the injuries were asbestosis and lung cancer. The AAT was not satisfied that the damages received by the employee in the DDT for a head of damage otherwise unquantifiable, being a risk of injury, did not result in part of the damages being awarded 'in respect of' the actual injury when it did occur.

The AAT therefore determined that Mr Muscat was entitled to compensation for permanent impairment resulting from the disease of lung cancer, assessed at 70% whole person impairment, and that he was also entitled to weekly compensation pursuant to section 19 on the basis of a total incapacity for work (and that section 23(1A) of the SRC Act applied).
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New Queensland Liquor Licence Types And Fees

January 1st 2009 08:17
From 1 January 2009 all liquor licences in Queensland will be re-categorised into the new streamlined licence types under the amended Liquor Act 1992 (Liquor Act). On 12 December 2008, the Government promulgated the amendments to the Liquor Regulation 2002, which sets out the new annual licence fee structure. The first instalment of annual licence fees will be levied at the start of January 2009 and due for payment by 2 March 2009.

New Queensland Liquor Licence Types


Summary of licence-type restructure

The new licence structure broadly divides liquor licences into "commercial" and "community" licences. "Commercial" licences will be further divided into:

* commercial hotel licences;

* commercial special facility licences; and

* commercial other licences.

These licence types form the basis for the amount of annual fees charged on each licence.

There are five further subcategories of licences under the "commercial other" type:

* subsidiary on-premises licence;

* subsidiary off-premises licence;

* bar licence;

* industrial canteen licence; and

* producer/wholesaler licence.

Originally, the proposed changes did not retain special facility licences as a licence type. A number of special facility licensees and Deacons made submissions to the Government pressing for the retention of special facility licences. The Government took these submissions into account and retained special facility licences, including the ability to trade 24 hours for airport and casino premises.

Also of interest is the new "commercial other – bar licence". Licences for small bars have been available in Victoria for some time and in Western Australia since 2007. The idea behind small bar licences is to provide a comparatively simple and cost-effective licence for small venues, partly in the hope of encouraging a more responsible drinking culture. Small bars in Queensland must have limited seating for no more than 60 patrons at any one time. In contrast to a commercial hotel licence (which has a base annual fee of $2,700), the annual licence fee for a bar licence will be $500, plus any additional fees for other risk factors (see below).

Like the commercial licence category, the "Community" licence type will also be subdivided into:

* community club licence; and

* community other licence.

A "community other licence" is a general community licence for the provision of facilities and services to a club's members and the achievement of the club's objectives, while "community club licence" is the successor licence type to existing Club licences.
Transition of existing licences

From 1 January 2009 all existing licences in Queensland will be converted to the new licence types. The transitional provisions of the Liquor and Other Acts Amendment Act 2008 list the new licence types for the conversion:

Existing licence type-----------------------New licence type

* General licence---------------------- --------Commercial hotel licence
* Special facility licence---------------------- Commercial special facility licence
* Residential licence---------------------- -----Subsidiary on-premises licence
* On-premises licence---------------------- ---Subsidiary on-premises licence
* Producer/wholesaler licence-------------Producer/ wholesaler licence
* Limited licence relating to a canteen---Industrial canteen licence
* Limited licence relating to a business--Subsidiary off-premises licence
other than a canteen (for example,
a florist that includes bottles of
wine in gift baskets)
* Club licence---------------------- ----------Community club licence

The Government has noted in its recent paper "Final Outcomes – Review of the Liquor Act 1992" (Final Outcomes Paper) that, in some circumstances, licensees will have the option to change licence type (with the approval of the Chief Executive of the Office of Liquor, Gaming and Racing) if a different licence type is better suited to how the licensee intends to operate the business in future. At this time, the Government has not released any information beyond this general proposition, however we understand that special facility licensees have been written to by the Office of Liquor, Gaming and Racing and told that they have the option of applying for a commercial other (subsidiary on-premises) licence instead of transitioning to a commercial special facility licence.
Licence fees

The Liquor and Other Legislation Amendment Regulation (No. 1) 2008 confirms the licence fee structure previously publicised by the Government.

Base annual fees range from $250 for "community – other" licences, to $10,000 for a special facility trading 5 am to 12 midnight. Originally, no provision was made for the fact that a number of outlets may operate under the authority of one special facility licence. Following submissions on the proposed changes, the Government amended the fee structure so that up to 10 outlets can operate under a special facility licence for the one annual fee. Each outlet beyond 10 will incur an additional $1,000 in annual fees.

A commercial hotel licence has an annual fee of $2,700, plus $3,000 for each detached bottle shop, and commercial other licences will attract a $500 fee. Community club licences will pay $500 per annum for less than 2,000 members and $2,200 per annum for more than 2,000 members.

Licensees must also conduct a self-assessment for further annual fees relating to practices that elevate the risk of harm.

Licensees who trade in extended hours will pay $7,500 for 12 midnight to 3 am trade, and $10,000 for 3 am to 5 am trade. Approved trade from 7 am to 9 am will attract a further fee of $1,000, and trade between 9 am and 10 am will attract an additional $500. Extended hours that only apply to weekends will attract a pro-rata fee, so for example, premises trading 12 midnight to 3 am on weekends only will attract a fee of $5,625, rather than the full $7,500.

Licensees who do not have meals available up to 2 hours prior to closing will pay an extra $1,000 per annum. There is an exception for this extra fee for business that a person would not ordinarily expect liquor to be available for sale. Examples given in the regulation include cinemas, hospitals, retirement villages and TAFE institutions.

The Government has not included the previously proposed annual fees relating to increased noise and the fees for a poor compliance history. This is particularly interesting given the focus on harm minimisation.

Payment of fees will be self-assessed by licensees. Fees will be levied on 1 July each year for the whole financial year, payable by 31 July. The first instalment of fees will be a half fee for the period from 1 January 2009 to 30 June 2009, and will be due on 2 March 2009 and not 31 January 2009 as originally proposed.

Failure to pay fees by the due date will result in a suspension of the licence for 28 days. If the fees are not paid during that 28 day period, the licence will be cancelled.

Application fees for new licences have been set at $5,000 for commercial hotel and commercial special facility licences, and $1,000 for commercial other licences. The application fee for a community club licence is $2,200 and $500 for a community other licence.

All licensees should prepare for the new fees payable by 2 March 2009.
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Court Of Appeal Clarifies Scope Of Appeals Against Acquittal

December 27th 2008 05:37
The New South Wales Occupational Health & Safety Act (Act) permits the prosecutor to appeal to a Full Bench of the Industrial Court of New South Wales, against a verdict of acquittal. This is an exception to the normal principles of criminal law. Recently the New South Wales Court of Appeal was called upon to consider the scope of the orders which the Full Bench can make in determining such an appeal.

The case (Bros Bins Systems Pty Limited v Industrial Court of New South Wales [2008] NSWCA 292) is another example of the type of long running litigation to which, it appears, the Act is prone. The difficulty arises because of the need to reconcile two competing principles of interpretation – on the one hand, the need to give a broad or generous construction to legislation that is designed to secure a public benefit and, on the other hand, the need to follow an approach of strict construction because the Act is also penal in nature.

Bros Bins operated a business involving the removal of industrial rubbish. The company owned a number of trucks that were specially fitted with a hydraulic bin mechanism. One of the trucks required repair and for that purpose was taken to Tibby Rose Auto, an auto repair business. An employee of Bros Bins (Mr Wood) drove the truck to the premises of Tibby Rose Auto and remained there whilst the vehicle was worked on by an employee of Tibby Rose Auto.

During the course of the repairs, the bin mechanism was raised. Some time later it fell, killing an employee of Tibby Rose Auto. It was accepted that another employee of Tibby Rose Auto had touched a control lever that caused the mechanism to descend.

Workplace Safety Australia


Bros Bins was charged under what is now section 10(2) of the Act, which requires that a person who has control of plant (to any extent) that is used by people at work must ensure that the plant is safe and without risks to health.

At first instance, the trial judge (Marks J) acquitted Bros Bins on the basis that the truck was not "plant" for the purposes of the Act. Whilst the truck was at the premises of Tibby Rose Auto, it represented the product of work processes carried out by Tibby Rose Auto and it was not a fixture, implement or apparatus used in the carrying on of the work.

The prosecutor brought an appeal to a Full Bench of the Industrial Court. The prosecutor argued that the word "plant" in the Act should not be given a narrow meaning, and the mere fact the truck was being repaired did not mean that it was not plant.

Bros Bins argued that if such a view was to be accepted it would be impossible for a company to have an item of machinery or equipment repaired by a third party without breaching the Act. In effect the company could only discharge its obligation if it had the plant fixed before it was given to the repairer. Such an absurd result could not have been intended by Parliament. It might be thought that, at a common sense level, this argument has much to commend it.

The Full Bench did not agree and concluded that the vehicle constituted "plant" under the Act. The Full Bench set aside the acquittal and directed that the matter be returned to Marks J for rehearing.

At the rehearing, the company was found guilty. A subsequent appeal to the Full Bench was unsuccessful.

The company then applied for a review of the decision by the New South Wales Court of Appeal. The Court of Appeal possesses a supervisory jurisdiction under which it may quash a decision of the Full Bench if that decision is affected by jurisdictional error.

Bros Bins argued that jurisdictional error occurred in two ways, namely:

1. the Full Bench's conclusion that the truck constituted plant under the Act; and
2. the right of appeal against acquittal does not permit the Full Bench to remit the matter for re-trial to a single judge of the Court.

On the first ground, the Court of Appeal concluded that even if the Full Bench had been in error, the mistake was not jurisdictional in nature and so the Court of Appeal had no capacity to intervene.

However, Bros Bins was successful on the second ground. The Court of Appeal held that the right against double jeopardy is such a powerfully entrenched right within our law, that it can only be abrogated by the express will of Parliament. Parliament had expressed its will to permit an appeal against acquittal (and so to abrogate double jeopardy), but if it had been Parliament's intention that the consequence of a successful appeal could be a rehearing, then this would have been made clear within the legislation. It was not.

The Court of Appeal ordered that the re-trial conducted before Marks J was beyond jurisdiction and the results of it were void. The matter was sent back to be fully determined by the Full Bench.

The course of this litigation is a further indication that the jurisprudence relating to the operation of key provisions of the Act may have become unbalanced and that the penal aspect of the legislation is not sufficiently taken into account. It is difficult, again at a common sense level, to accept that a person who seeks to get a vehicle repaired should be penalised because of an accident that the repairer has caused.

It is noteworthy that the recommendations of the advisory panel (referred to in the Report on National Harmonisation of OHS Laws) have made it clear that the model national OHS legislation should not allow appeals from acquittal. The recommendations of the panel also state that a right of appeal against conviction and/or sentence should exist to the relevant State Supreme Court and, thereafter, to the High Court. This measure would serve to prevent any tendency toward unrealistically absolute interpretations of the Act.

Article by Deacons Solitors, Australia
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