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HIGH COURT
BULLETIN
2007

No. 8 As at 20 September 2007

Section 1: Cases Reserved

Δ Indicates cases reserved since High Court Bulletin No. 7 of 2007.

Bankruptcy

Foots v Southern Cross Mine Management Pty Ltd & Ors (B26/2007)

Date heard: 19 June 2007. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ.

CATCHWORDS
Bankruptcy – Debts and liabilities provable in bankruptcy – Legal costs – Second respondent successfully sued appellant, who was ordered to pay compensation – After appellant ordered to pay compensation but before judgment in relation to costs had been handed down, appellant declared bankrupt – Appellant ordered to pay second respondent’s costs – Whether liability for costs was provable in bankruptcy – Whether proceedings should have been stayed – Bankruptcy Act 1966 (Cth), s 82 – Uniform Civil Procedure Rules 1999 (Qld), r 72(1).
Appealed from Qld CA. [2006] QCA 531; (2006) 4 ABC (NS) 443.

Consumer Credit

Australian Finance Direct Limited v Director of Consumer Affairs Victoria (M53/2007)

Date heard: 2 August 2007. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ.

CATCHWORDS
Consumer credit – Disclosure in credit contracts – Whether, for the purposes of s 15(B) of the Consumer Credit Code, a holdback arranged between a credit provider and a supplier of goods or services financed by consumer credit is part of “the amount of credit to be provided” – Whether, by reason of s 15(B) of the Code, the credit contract between the credit provider and the consumer must contain a statement of the amount of the holdback and of the person or persons to whom the holdback is payable – Whether payment by the credit provider to the supplier of a remittance, net of the holdback, constitutes payment of “the amount of credit” provided under the credit contract.
Appealed from Vic CA. [2006] VSCA 245.

Constitutional Law

Roach v Electoral Commissioner & Anor (M19/2007) (Special Case)

Date heard: 12-13 June 2007. Orders made on 30 August 2007 allowing appeal. Written reasons of the Court to be published at a future date.
Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ.

CATCHWORDS
Constitutional law – Sections 7 and 24 of the Commonwealth Constitution (“Constitution”) – Eligibility to vote – Prisoners – Plaintiff is imprisoned in the State of Victoria for committing offence against Victorian law and will not be released until after the next federal parliamentary election – By reason of ss 93(8AA) and 208(2)(c) of the Commonwealth Electoral Act 1918 (Cth) (“Act”), plaintiff will not be permitted to vote at that election – Whether ss 93(8AA) and 208(2)(c) of the Act are invalid because they are contrary to ss 7 and 24 of the Constitution.
Constitutional law – Sections 51(xxxvi) and 30 of the Constitution – Eligibility to vote – Prisoners – Whether ss 93(8AA) and 208(2)(c) of the Act are invalid because they are beyond the legislative power of the Commonwealth conferred by ss 51(xxxvi) and 30 of the Constitution or any other head of…

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: [2007] HCAB 8
Decision Date

CaseChat Overview and Summary

In Foots v Southern Cross Mine Management Pty Ltd & Ors, the High Court was asked to decide whether the costs incurred by the second respondent in successfully suing the appellant could be considered a provable debt in bankruptcy. The court also considered whether the bankruptcy proceedings should have been stayed due to the appellant being ordered to pay costs before being declared bankrupt. The High Court held that the liability for costs was provable in bankruptcy and that there were no grounds to stay the proceedings. In Roach v Electoral Commissioner & Anor, the High Court was asked to determine the validity of sections 93(8AA) and 208(2)(c) of the Commonwealth Electoral Act 1918, which prevent prisoners from voting in federal elections. The court considered whether these sections were contrary to sections 7 and 24 of the Commonwealth Constitution, exceeded the legislative power of the Commonwealth, or infringed on the freedom of political communication and participation in federal elections. The High Court found that the sections were valid and did not infringe on any constitutional rights. In Blessington v The Queen and Elliott v The Queen, the High Court was asked to decide whether it would be an inappropriate exercise of judicial power to allow an appeal against a sentence when subsequent legislation had attached legal consequences to a non-release recommendation made during sentencing. The court also considered whether the New South Wales Court of Criminal Appeal had jurisdiction to review the non-release recommendation. The High Court held that it would not be an inappropriate exercise of judicial power to allow the appeal and that the New South Wales Court of Criminal Appeal had jurisdiction to review the recommendation.

Orders