Carter Newell’s 12 Cases of Christmas

On the twelfth day of Christmas, Master Sanderson gave to me, the burial of Bell litigation, ex parte...

On 22 September 2020, the Supreme Court of Western Australian finally said goodbye to the long running Bell Group litigation in Bell Group (UK) Holdings Limited (in liquidation) [2020] WASC 347. According to the short reasons, this and related pieces of litigation had been on foot for 25 years, with thousands of people having worked on the case, the trial taking 404 days to hear, and the judgment taking two years to write and spanning more than 2,600 pages. Master Sanderson delivered a ‘requiem’. Resisting the temptation to ‘drive a wooden stake through the heart of the company to ensure it does not rise zombie-like from the grave’, or to order that ‘the files be removed to a secure facility in Roswell’, his Honour granted the application (to terminate the winding up of Western Interstate Pty Ltd) and, fittingly, finished the judgment off with a one word paragraph, ‘Amen

On the eleventh day of Christmas, the US Supreme Court gave to me, a knock-out blow to four more years of President T...

In very brief orders made on 11 December 2020 in Texas v. Pennsylvania, et al, the majority denied the State of Texas’s motion for leave to file a bill of complaint, holding that Texas had not demonstrated a judicially cognisable interest in the manner in which another State conducts its elections.

On the tenth day of Christmas, Justice Martin gave to me, a reference to truffles and the duties of advocacy...

Justice Martin of the Supreme Court of Queensland in Mineralogy Pty Ltd & Anor v The State of Western Australia [2020] QSC 344 had to consider the State of Western Australia’s application to set aside an order made in favour of the plaintiff, on an ex parte basis, to enforce commercial arbitration awards. His Honour found that the application should not have been brought ex parte, and that the applicant did not expose the substantial authority to the contrary of its submissions that such ex parte proceedings were usual or common or orthodox. In setting aside the order, his Honour referred to the onerous duties of advocates appearing on such applications, including that they must bring forward all of the material facts which the absent party would presumably have brought forward in defence of the application. His Honour also paraphrased what was said by Posner J in United States of America v Dunkel 927 F. 2d 955 (7th Cir 1991) that ‘judges are not pigs, hunting for truffles in the documents’ – noting that, in this case, the supporting affidavit and exhibits exceeded 250 pages and the two authorities relied upon comprised 347 and 149 paragraphs respectively. As his Honour stated ‘No judge sitting in Applications has the time to closely examine documents of that length in order to determine whether they support, in all necessary respects, an applicant’s case’.

On the ninth day of Christmas, the QSC gave to me, a decision on validity of notices in a JV...

The Supreme Court of Queensland in Rolleston Coal Holdings Pty Ltd v ICRA Rolleston Pty Ltd [2020] QSC 352 considered certain cash call notices provided under a coal mining joint venture agreement, issued by the joint venture manager in order to fund certain expenditure. Justice Bowskill dismissed an application seeking a declaration that the notices were invalid and, in particular, considered whether contractual stipulations as to time had to be strictly complied with. Her Honour observed that, although the words were clear and unambiguous, the question was whether as a matter of construction of the relevant provision, in the context of the joint venture agreement as a whole, strict compliance was required or whether substantial compliance was sufficient. Justice Bowskill analysed the competing detriments and benefits arising from being given a notice that was not precisely referable to the relevant time period, and was not persuaded that it was essential to avoid ‘commercial confusion’. Her Honour also found that estoppel by convention would have been established, based on a review of the authorities (including as to the effect of entire agreement and no waiver provisions) and consideration of a course of conduct between the parties over a six year period.

On the eigth day of Christmas, the QCA gave to me, good faith not yet implied contractually...

The Queensland Court of Appeal in Glencore Coal Queensland Pty Ltd v Aurizon Network Pty Ltd & Ors [2020] QCA 182 considered the interpretation of deeds entered into with Aurizon, a rail network operator. The purpose of the deeds was to have Aurizon upgrade a network to facilitate the anticipated levels of transport of coal from various customers to the Wiggins Island Coal Export Terminal. The case concerned the validity of contractual notices provided by various customers, for unexplained reasons, but which would have excused them from contributing to the costs of upgrading certain segments of the network when much of the work had been completed. At first instance it was held that the notices were invalid on the basis that the exercise of the power to issue notices was subject to a term of good faith, implied in fact, which had been breached. The Court of Appeal referred to the ‘illuminating discussion of the authorities’ by the trial judge (see the trial decision from [216]) in relation to the implication of a term of good faith, but found it unnecessary to express a concluded view. Instead, the Court held that on the proper construction of cl 6.1(c) or, alternatively through a different implied term, a notice could not be issued by a customer if they needed the segment to enjoy access rights.

On the seventh day of Christmas, the High Court gave to me, an estoppel case in a claim for alimony...

The High Court of Australia in Clayton v Bant [2020] HCA 44 was asked to consider whether a judgment of a court in Dubai in divorce proceedings had the effect of precluding the wife from pursuing earlier commenced property and spousal maintenance proceedings under the Family Law Act 1975 (FCA). The husband had applied for a permanent stay of the Family Court proceedings on the basis of res judicata and cause of action estoppel – failing at first instance, but succeeding on appeal. The High Court gave consideration to res judicata, cause of action estoppel, and Anshun estoppel. The majority emphasised the importance of first identifying with precision the jurisdiction of the Family Court to hear and determine the wife’s proceedings. Having done so, it was held that there was no res judicata as there could be no ‘merger‘ of the statutory rights under the FCA in any judicial orders other than final orders of a court having jurisdiction under the FCA. With respect to the property settlement proceedings, the Dubai ruling was incapable of being classified as cause of action estoppel or Anshun estoppel – primarily since the right to seek a share of joint investment property in the Dubai proceeding was not of a substantially equivalent nature and did not cover substantially the same subject matter as the rights under the FCA. With respect to the spousal maintenance proceedings, it was found that although the nature of the right to seek alimony under the Dubai and Australian law were substantially equivalent, there was a significant difference in coverage of the rights (insofar as the Dubai law could not be shown to apply beyond the date of divorce unlike rights under the FCA). There was also unanimous concern raised with the lengthy delays in determination of the Family Court proceedings, with Justice Gordon observing that ‘Justice delayed is justice denied‘.

On the sixth day of Christmas, Justice Williams gave to me, a case about a so-called barrister’s lien...

In Williamson & Williamson v Pay [2020] QSC 324, Justice Williams considered a claim reliant on a ‘barrister’s lien‘ – an equitable lien for the recovery of costs similar to the well-known ‘solicitors lien‘. Her Honour helpfully reviewed the relevant authorities at paragraphs [46] to [80] of the judgment, before dismissing the claim and concluding in respect of a barrister’s lien that, although there appeared to be some support for such a lien,  ‘… it appears it may be limited to where counsel receives a direct brief from a client or where a solicitor was not directly liable for counsel’s fees‘. Her Honour also held that to the extent such relief is discretionary, the applicant had not established that it was appropriate to exercise that discretion.

On the fifth day of Christmas, the High Court gave to me, clarity about 'officers' of a company...

In Australian Securities and Investments Commission v King & Anor [2020] HCA 4 the High Court of Australia provided clarity regarding who is an ‘officer of a corporation’ under the extended definition in s 9(b)(ii) of the Corporations Act 2001, namely a person ‘… who has the capacity to affect significantly the corporation’s financial standing‘. In this case, it was held that the CEO/executive director of a parent company had the capacity to significantly affect the financial standing of one of the members of the group such that he was an officer of that company with associated obligations. The High Court rejected the earlier appellate court decision that it was necessary to establish that the person had acted in an ‘office‘ of the corporation (in the sense of a recognised position with rights and duties attached to it). Interestingly it was observed that bankers and other third parties could fall within the reach of the extended definitions of officers, with the example provided of lenders managing the way in which a company attempts to work its way out of financial distress.

On the fourth day of Christmas, the Federal Court gave to me, guidance in correcting registered security...

In Curo Capital Pty Ltd v Registrar of Personal Property Securities [2020] FCA 1515, the Federal Court of Australia reviewed a decision of the Registrar refusing to restore registrations on the Personal Property Security Register (PPSR), in circumstances where the registered party had agreed to assign its security interests but instead mistakenly discharged its registrations from the PPSR. Upon the secured party realising its mistake, it applied to the Registrar pursuant to s 186 of the Personal Property Securities Act 2009 (Cth) (PPSA) to correct and restore its registration. Relevantly, s 186 of the Act allows for the Registrar to register a financing change statement to restore data to the register if it appears to the Registrar that the data was incorrectly removed from the register. It was held that all that is required to activate the Registrar’s discretion is that there be information before the Registrar which leads the Registrar to form the view that, on the face of that information, data was incorrectly removed from the PPSR. That is, the standard for the Registrar to correct the PPSR is not one of certainty, but merely that on the face of the presented information it was incorrectly removed (albeit, the power remains discretionary). The Court found that the Registrar had adopted a policy of not exercising a discretionary power to restore data to the PPSR under s 186 of the PPSA if any of the grantors expressed opposition, and in refusing the application on the basis of expressed opposition by two of the three grantors, the Registrar applied that policy inflexibly and without regard to the merits of the case. The Registrar’s decision was set aside and referred back to the Registrar.

On the third day of Christmas, the NT gave to me, a decision on advocates’ immunity...

The Supreme Court of the Northern Territory in Kiranou v Black [2020] NTSC 60 summarised the well-established principles relating to advocate’s immunity, namely that a lawyer is immune from civil action in respect of the conduct of a case in court, or work intimately connected with the conduct of a case in court. The Court helpfully set out a number of examples from past judgments where the immunity did, and did not, apply. In entering summary judgment based on the immunity, the Court held that the following were all subject to the immunity: failing to submit a defence to a claim; failing to adequately explain certain provisions of the Family Law Act to the plaintiff; failing to engage an interpreter to translate documents to be sworn or signed or for the purposes of a court hearing; failing to appoint a forensic accountant; failing to issue subpoenas; failing to submit documents to the court; arguing the case as a business dispute and not as a domestic relationship property settlement dispute; and failing to put some matters and documents before the court.

On the second day of Christmas, the High Court gave to me, a helicopter and admissions by an employee...

The High Court of Australia in Commonwealth of Australia v Helicopter Resources Pty Ltd & Ors [2020] HCA 16 considered a provision in the Evidence Act 2011 (ACT) which extended the common law by allowing a representation made by an employee to be taken as an admission by the employer if the representation related to a matter within the scope of the employee’s employment. It was held that invocation of an investigative power to compel an employee to give evidence about a matter with respect to which his or her employer stands charged with a criminal offence does not amount to compelling the employer to give evidence contrary to the rule that an accused cannot be required to assist the Crown in proving its case. It was also held that there was nothing fundamental to the accusatorial system of justice which would require an accused employer to prevent an employee’s words being used as evidence against it. That is, a company does not have property in a witness, even a witness who may be identified as the guiding mind of the accused or whose answers may be attributable to the accused employer.

On the first day of Christmas, a Supreme Court gave to me, a case regarding waiver of LPP....

The NSW Supreme Court in Re Northern Energy Corporation Ltd [2020] NSWSC 1073 held that privilege had not been waived in respect of legal advice provided to an auditor, and could therefore not be accessed by liquidators for subsidiaries. Unlike Westpac v 789Ten, where the solicitors prepared an advice for provision to the auditor, it was significant that the dominant purpose of obtaining the advice was to advise the company. It was also held that so long as privilege and confidentiality are maintained when disclosing the communication to the auditor, the company does not thereby waive privilege vis a vis other companies in the corporate group. Finally, the audit letter itself did not waive privilege because it did not disclose the lawyers’ views – instead it disclosed the views of the auditor.

Special thanks for the contribution of Timothy Bowles.

Sarah Ewing
Special Counsel

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