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High Court Bulletin

Produced by the High Court of Australia Library

[2010] HCAB 10 (3 November 2010)

A record of recent High Court of Australia cases: decided, reserved for judgment, awaiting hearing in the Court’s original jurisdiction, granted special leave to appeal, refused special leave to appeal and not proceeding or vacated.

1: Cases Handed Down
2: Cases Reserved
3: Original Jurisdiction
4: Special Leave Granted
5: Cases Not Proceeding or Vacated
6: Special Leave Refused

1: Cases Handed Down

The following cases were handed down by the High Court of Australia during the October 2010 sittings.

WorkCover Queensland v Amaca Pty Ltd

B10/2010: [2010] HCA 34.

Judgment delivered: 20 October 2010.

Coram: French CJ, Gummow, Crennan, Kiefel and Bell JJ.

Catchwords:

Practice and procedure — Action — Death of worker — Survival of cause of action — Section 66(1) of Succession Act 1981 (Q) (“Succession Act”) provided causes of action vested in deceased person shall survive for benefit of person's estate — Section 66(2) limited damages recoverable “in any action brought” where cause of action survives under s 66(1) — Whether s 66(1) creates new cause of action — Discussion of history of survival of causes of action.
Workers’ compensation — Insurance — Statutory scheme — Insurer’s right of indemnity against third party for compensation paid — Insurer paid compensation to worker exposed to asbestos manufactured and supplied by respondents — Worker died and no proceedings instituted by worker or estate against any persons — Section 207B(7) of Workers’ Compensation and Rehabilitation Act 2003 (Q) (“Compensation Act”) gave insurer, in these circumstances, right of indemnity against third party up to amount of compensation paid to worker, but only “to the extent of that person’s liability for the damages” — Whether s 66(2) of Succession Act limits amount recoverable under right of indemnity in s 207B(7) of Compensation Act — Nature of cause of action created by s 207B(7) — Difference between liability and damages recoverable — Relevance of history of s 66(2) of Succession Act.
Words and phrases — “in any action brought”, “liability”, “to the extent of that person’s liability for the damages”.

Appealed from Qld SC (CA): [2009] QCA 72; [2009] 2 Qd R 181.

Pollock v The Queen

B14/2010: [2010] HCA 35.

Judgment delivered: 20 October 2010.

Coram: French CJ, Hayne, Crennan, Kiefel and Bell JJ.

Catchwords:

Criminal law — Defences — Provocation — Elements of provocation — Meaning of “sudden” — Whether accused's loss of self-control must immediately follow provocation — Scope of objective test — Whether there exists a discrete requirement that accused must commit fatal act before there has been time for loss of self-control to abate.
Criminal procedure — Directions — Use of model directions — Duty to frame directions by reference to issues.
Words and phrases — “loss of self-control”, “sudden provocation”, “time for passion to cool”.

Appealed from Qld SC (CA): [2009] QCA 268.

Finch v Telstra Super Pty Ltd

M5/2010: [2010] HCA 36.

Judgment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] HCAB 10
Decision Date

CaseChat Overview and Summary

In WorkCover Queensland v Amaca Pty Ltd, the High Court considered whether the insurer's right of indemnity against a third party for compensation paid to a worker who had been exposed to asbestos, survived the worker's death, and if so, whether the amount recoverable under the right of indemnity was limited by a statutory provision that limited damages recoverable in any action brought where the cause of action survived under a similar provision. The Court concluded that the statutory provision did not limit the amount recoverable under the right of indemnity as the nature of the cause of action created by the right of indemnity was different from the nature of the cause of action created by the statutory provision. In Pollock v The Queen, the Court considered the meaning of "sudden" and "loss of self-control" in the context of the defence of provocation in a criminal case. The Court held that the accused's loss of self-control did not have to immediately follow provocation and that the objective test for provocation required consideration of whether the accused had committed the fatal act before there had been time for the loss of self-control to abate. In Finch v Telstra Super Pty Ltd, the Court considered whether the definition of "total and permanent invalidity" in a superannuation trust deed required continuous absence from "all active work" for six months, and whether the period of absence was assessed at the date the applicant left their employer or at the date of the trustee's determination. The Court held that the definition of "total and permanent invalidity" required continuous absence from "all active work" for six months, and that the period of absence was assessed at the date of the trustee's determination.

The final orders in each case were as follows:

WorkCover Queensland v Amaca Pty Ltd: The Court allowed the appeal and remitted the matter to the Queensland Court of Appeal to determine the amount recoverable under the right of indemnity.

Pollock v The Queen: The Court allowed the appeal and ordered a new trial.

Finch v Telstra Super Pty Ltd: The Court allowed the appeal and remitted the matter to the trustee to determine whether the applicant was "unlikely ever to engage in any gainful work".

Orders