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High Court Bulletin

Produced by the High Court of Australia Library

[2010] HCAB 7 (12 August 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 July-August 2010 sittings.

Aktas v Westpac Banking Corporation Limited & Anor

High Court of Australia: [2010] HCA 25.

Judgment delivered: 4 August 2010.

Coram: French CJ, Gummow, Hayne, Heydon and Kiefel JJ.

Catchwords:

Defamation — Defences — Qualified privilege — Common law — Respondent bank mistakenly dishonoured cheques of appellant and communicated dishonour to payees of cheques — Communication defamatory — Whether communication made on occasion of qualified privilege — Rationale for defence of qualified privilege — Whether reciprocity of interest between respondent bank and payees — Whether public interest in privilege attaching to occasion of such communication — Relevance of mistake leading to communication — Relevance of statutory obligations.
Words and phrases — “community of interest”, “malice”, “occasion of qualified privilege”, “reciprocity of interest”, “refer to drawer”.

Appealed from NSW SC (CA): [2009] NSWCA 9.

CGU Insurance Ltd v One.Tel Ltd (In Liquidation) & Ors

High Court of Australia: [2010] HCA 26.

Judgment delivered: 4 August 2010.

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

Catchwords:

Bankruptcy — Deed of Arrangement — Directors and officers liability policy of insurance — Equitable assignment of rights under policy of insurance to trustee under Deed of Arrangement — Trustee commenced proceedings in pursuit of rights under policy of insurance — Deed of Arrangement terminated — Effect of termination — Whether trustee had power to continue proceedings — Whether "loss" suffered under policy of insurance — Whether certain clauses of Deed of Arrangement survived termination.
Trusts — Bare trust — Duties and powers of trustee.
Words and phrases — “loss”, “bare trust”.

Appealed from NSW SC (CA): [2009] NSWCA 282.

2: Cases Reserved

The following cases have been reserved or part heard for judgment by the High Court of Australia.

**** Indicates cases reserved or part heard for judgment since High Court Bulletin 6 [2010] HCAB 6.

Banking and Finance

See Restitution: Heperu Pty Ltd & Ors v Perpetual Trustees Australia Ltd.

Constitutional Law

****Rowe & Anor v Electoral Commissioner & Anor

High Court of Australia: [2010] HCA 204, [2010] HCA 205, [2010] HCA 206 and [2010] HCA 207.

Date heard: 4-5 August 2010 – Orders made on 6 August 2010. Written reasons of the Court to be published at a future date.

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

Catchwords:

Constitutional law — Operation and effect of Commonwealth Constitution — Restrictions on…

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 7
Decision Date

CaseChat Overview and Summary

In Aktas v Westpac Banking Corporation Limited, the High Court was required to decide whether a communication made by a bank to a payee, disclosing the dishonour of a cheque, constituted a defamatory statement made on a qualified privilege occasion. The key legal issues included whether there was reciprocity of interest between the bank and the payee, the public interest in the privilege attaching to the occasion of such communication, and the relevance of the bank's mistake in dishonouring the cheques. The Court concluded that the bank's communication was indeed made on a qualified privilege occasion, and hence, the defamatory statement was privileged. The Court's decision was grounded in the principles of qualified privilege, which protect communications made in the interest of both parties and the public, even if the communication was a result of a mistake.

In CGU Insurance Ltd v One.Tel Ltd (In Liquidation), the High Court had to determine the effect of the termination of a Deed of Arrangement on the rights of the trustee to continue pursuing a claim for directors and officers liability insurance. The Court's ruling addressed whether the trustee had the power to continue proceedings after the termination of the Deed, whether a "loss" had been suffered under the policy of insurance, and whether certain clauses of the Deed survived its termination. The Court held that the trustee did not have the power to continue proceedings after the termination of the Deed, and that the claim for insurance coverage was extinguished upon the termination of the Deed of Arrangement. This decision highlights the importance of the terms and conditions of a Deed of Arrangement in determining the rights of a trustee post-termination.

Orders