High Court Review

Melway Publishing Pty Ltd v Robert Hicks Pty Ltd

John Duns — Wed, 26 Aug 2009 16:50:27 PDT

Extract:

Central to the case was the distribution system adopted by Melway to market its directories. Melway supplied its directories to selected wholesalers who in turn were responsible for distributing the directories to retailers. While Melway's arrangements with its wholesalers were informal, in the sense that there were no written terms of supply, it was clear that supply of the directories was on the basis that the wholesalers would sell the directories only to retailers within particular market segments. There were 5 segments identified by Melway for this purpose: (a) newsagents and bookshops; (b) service stations; (c) office stationers; (d) authorised car dealers; and (e) automotive parts retailers. UBD does not have a similar market segmentation system.

Jeanette Ramona Clay v Mark Gregory Clay, Paul James Clay and Moira Helen Clay and Mark Gregory Clay, Terence Charles Edwards and Delta Consulting Australia Pty Ltd

Denis S. K. Ong — Wed, 26 Aug 2009 16:50:26 PDT

Extract:

Mr Clay died testate on 20 November, 1970. Some time before his death, Mr Clay had acquired absolute registered ownership of a residential property at 24 Queenslea Drive, Claremont, Western Australia (hereinafter the property). The property became an asset of Mr Clay’s deceased estate. Mr Clay had made his will on 17 October, 1969, in which he had purported to appoint two executors and trustees. However, for reasons which are of no present relevance, probate of the estate was granted on 10 October 1972 to only one of the two executors and trustees named in the will: David Merritt Speed (hereinafter the executor). Under Mr Clay’s will, the executor was empowered to make advancements out of the income and/or corpus of the estate to Mrs Clay to a maximum of $20,000 a year, the residuary estate being given, in equal shares, to the stepchildren and Simone Clay.

Minister for Immigration and Multicultural Affairs v Fathia Mohammed Yusuf

Susan Kneebone — Wed, 26 Aug 2009 16:50:26 PDT

Extract:

Fathia Mohammed Yusuf (Yusuf) is an applicant for a protection visa under s 36(2) of the Migration Act 1958 (Cth) (the Act) which incorporates Australia’s protection obligations to asylum seekers under the Convention Relating to the Status of Refugees (1951). Her claim for protection, based upon race and membership of a particular social group, was rejected by the primary decision-maker and on review by the Refugee Review Tribunal (RRT). However, she was successful on judicial review in an application to Finn J at first instance and then to the Full Court of the Federal Court (Heerey, Merkel and Goldberg JJ). The Minister for Immigration and Multicultural Affairs (the Minister for Immigration) appeals against the latter decision.

Associated Alloys Pty Ltd v Metropolitan Engineering and Fabrication Pty Ltd and Shirlaw

Denis S. K. Ong — Wed, 26 Aug 2009 16:18:14 PDT

Extract:

In 1981 Associated Alloys Pty Limited (hereinafter the Seller) commenced selling steel to Metropolitan Engineering and Fabrication Pty Limited (hereinafter the Buyer), a manufacturer of steel products. In 1987 or 1988, the Seller started the practice of including the following printed clause (hereinafter the printed clause) on the reverse side of the invoices which it issued to the Buyer.

The Owners of the Motor Vessel "Iran Amanat" and others v KMP Coastal Oil PTE Limited

Sarah C. Derrington — Tue, 25 Aug 2009 23:57:49 PDT

Extract:

On 13 February 1998 the High Court of Australia granted special leave to appeal from the decision of the Full Federal Court of Australia in The Owners of the Motor Vessel "Iran Amanat" and the 84 other vessels as set out in the schedule attached hereto v KMP Coastal Oil Pte Limited[2] delivered on 5 June 1997.

[2] See note in article.

Data Access v PowerFlex

William Van Caenegem — Tue, 25 Aug 2009 23:57:49 PDT

Extract:

The issue in this case is relatively straightforward: does a single word in the DataFlex language amount to 'a set of instructions' in the sense of that expression in the definition of 'computer program' in s 10 of the Copyright Act 1968 (Cth)? In answering this question, we enter a well-worn and complex debate about protecting the rights of authors and subsequent owners of computer programs by classifying the latter as "literary works" in Part III of the Copyright Act 1968. [2]

[2] See note in article.

Taming the unruly horse! Contractual illegality and public policy: Fitzgerald v FJ Leonhardt Pty Ltd

Jay Forder — Mon, 24 Aug 2009 00:05:29 PDT

Extract:

FJ Leonhardt Pty Ltd (the "driller") sued for payment under a contract to drill for water. The contract had been performed without all the necessary permits. This was through no fault of the driller - he had complied with the requirements as implemented by the Water Authority at the time. While the contract was perfectly legal when formed, the question is whether it is to be rendered unenforceable because its performance unwittingly breached a statutory requirement of obtaining a prior permit. There is a line of authority which suggests that even where a contract is illegal as performed, it can nevertheless be enforced by the "innocent" party, i.e. the person not guilty of breaching the statute (Holidaywise Koala Pty Ltd v Queenslodge Pty Ltd [1977] VR 164; TP Rich Investments Pty Ltd v Calderon [1964] NSWR 709; Anderson v Daniel [1924] 1 KB 138; Marles v Philip Trant & Sons Ltd [1954] 1 QB 29). The present case is not covered by this line of authority, since both parties were held to be guilty of an offence.

Political discussion as a defence to defamation: Lange v Australian Broadcasting Commission

Rupert Burns — Mon, 24 Aug 2009 00:05:29 PDT

Extract:

Lange v Australian Broadcasting Corporation has been removed into the High Court from the Supreme Court of New South Wales so that the High Court can determine the answers to the following questions:
a. whether the 'constitutional defence' articulated in the orders of the Court in Theophanous v Herald & Weekly Times (1994) 182 CLR 104 should be the subject of an application for reopening and reconsideration;
b. whether the 'constitutional defence' extends its protection to political discussion generally;
c. whether political discussion is an occasion of qualified privilege at common law.

What is a genuine industrial dispute? Attorney General for the State of Queensland and the State of Victoria & Anor v Riordan & Ors; Ex Parte the Australian Liquor Hospitality and Miscellaneous Workers Union & Ors

Amanda Coulthard — Sun, 23 Aug 2009 19:56:46 PDT

Extract:

There is a long standing doctrine that the service and rejection of a log of claims can generate an industrial dispute within the meaning of s 4(1) of the Industrial Relations Act 1988 (Cth). It is the scope of the qualification to this doctrine, namely that the demands in a log of claims be 'genuine', that is at the heart of this appeal. The appeal arises out of a finding made by Senior Deputy President Riordan of the Australian Industrial Relations Commission ('the Commission') that the service of a log of claims by the Australian Liquor, Hospitality and Miscellaneous Workers Union ('ALHMWU') and the Ambulance Employees Association of Victoria ('AEAV') on various employers in the States of Queensland, Victoria, South Australia and Western Australia and the Northern Territory gave rise to an industrial dispute.

Genuine industrial dispute: Victoria v Australian Industrial Relations Commission & ALHMU; Attorney General for Queensland v Riordan & Ors

Greg McCarry — Sun, 23 Aug 2009 19:48:50 PDT

Extract:

Where a first or new award is sought by a registered organisation (i.e. a union), a dispute is commonly created by service of a comprehensive set of written demands (a "log of claims") on employers and their associations in various states. This is accompanied by a letter that the demands be acceded to within a specified time. Employers ritually decline to accede. Since disagreement is of the essence of an industrial dispute, this process normally results in the creation of an inter-state industrial dispute. If the steps are carried out correctly, the legal efficacy of the so-called "paper dispute" is well established (see Re State Public Services Federation; Ex parte Attorney General for Western Australia (1993) 178 CLR 249 ("SPSF") at 267-268 per Mason CJ, Deane & Gaudron JJ, at 286 ff per Toohey J and at 305 per McHugh J, where the numerous earlier authorities for these propositions are gathered and discussed).