7 Landmark Cases of 2015

The past year has seen a number of very high profile cases reported in the media. Often a case that has stirred the interest of the public and the media isn’t always that legally significant. However, this year many of those cases that have piqued our curiosity have been very significant for the development of the law. In this article we will look at some of these landmark cases and explain why they don’t just have juicy facts, but they are legally important too.

1. Why you should be careful of what you tweet

Defamation and social media was examined in the case of Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652. The defendants published two tweets. One read “Treasurer for Sale” and the second “Treasurer Hockey for Sale”.

Both contained hyperlinks to the related newspaper articles. The newspaper articles were found not to be defamatory. Importantly, however, it was held that the tweets were discrete publications and would have been understood by readers as conveying that the former treasurer, Mr Hockey, was ‘taking, or willing to take, payments which were influencing his decisions as Treasurer of the Commonwealth’.

Justice White did not accept that the meanings conveyed by the two tweets should be considered in the context of the hyperlinked articles but that a number of Twitter users would have read the tweets ‘without going further’ and that the tweets should be regarded as discrete publications. As such, the tweets were defamatory.

2. Running a brothel linked to a bikie gang? You might want to tell your insurer

Insurance companies around Australia no doubt eagerly awaited the decision about the duty to disclose in Stealth Enterprises Pty Ltd (t/as The Gentleman’s Club) v Calliden Insurance Ltd [2015] NSWSC 1270.

In this case a brothel tried to claim on its insurance policy after a fire destroyed its premises. However, the insurance company refused to pay, claiming that the insured had failed to disclose firstly, that the director and manager were associated with the Comancheros bikie gang and, secondly, that the brothel was no longer registered under the Prostitution Act 1992 (ACT), when the policy was renewed.

Evidence was accepted by the court that activities of bikie gangs were “widely known” to result in property damage and personal injury. The court also agreed with the insurer that the policy would not have been renewed if it had been disclosed that the business was no longer registered under the Prostitution Act.

As such, the insurer was able to reduce its liability under the policy to nil as the brothel had failed to disclose relevant information upon renewal of a policy where it had been proven that, had the necessary disclosures been made, the policy would not have been renewed by the insurer.

3. No mutual trust and confidence in the workplace

In Commonwealth Bank of Australia v Barker [2014] HCA 32 an employee, Mr Barker, was made redundant. The Bank’s redeployment policy provided that certain steps be made to attempt to facilitate the redeployment of employees to be made redundant. However the redeployment policy was explicitly excluded from Mr Barker’s contract of employment.

Mr Barker brought proceedings arguing that the Bank had breached the implied term of mutual trust and confidence of his contract of employment by failing to make proper efforts to redeploy Mr Barker elsewhere within the Bank. This was the first time that the High Court had been asked to decide the contentious matter of whether there is, in Australian common law, an implied term of mutual trust and confidence between an employer and employee.

The court held unanimously that such an implied term does not exist. This clarifies the law for employers as this is final and clear authority on the matter.

4. Visa swiped by the competition regulator

In Australian Competition and Consumer Commission v Visa Inc [2015] FCA 1020 the Federal Court ordered Visa Worldwide to pay a penalty of $18 million for engaging in anti-competitive conduct. Visa supplies the currency conversion services necessary to allow Australian merchants to be paid in Australian dollars when an overseas traveller pays using their Visa card.

The purchases are later billed to the cardholder in their home currency. Visa earns substantial revenue from the provision of these services, both in the form of foreign currency trading revenue and fees.

A competing system, called Dynamic Currency Conversion (DCC), gives international cardholders a choice to complete a transaction in their home currency rather than in the local currency. The exchange rate is locked in and disclosed to the cardholder at the time of making a transaction.

During the period 1 May 2010 to 6 October 2010, Visa Worldwide prohibited the further expansion of the supply of DCC services on the Visa network by its rival suppliers of currency conversion services.

This prohibition meant that retail stores, hotels and restaurants that were not already offering DCC to their customers as at 30 April 2010 could not choose to offer DCC. In effect, this froze the pool of merchants who could offer DCC during the period of the prohibition, which in turn prevented the further expansion of DCC during that period.
The Court declared that by this conduct Visa contravened the Competition and Consumer Act 2010 (Cth), s 46.

5. Corruption watchdog leashed

The high profile NSW Crown Prosecutor Margaret Cunneen found herself about to face the Independent Commission Against Corruption (ICAC) this year. In Independent Commission Against Corruption v Cunneen [2015] HCA 14 it was alleged that Ms Cunneen encouraged her son’s friend to fake chest pains to avoid a breath test.

Ms Cunneen argued that it was beyond ICAC’s power to investigate her for corrupt conduct. This was the first time the High Court had been asked to rule on the definition of “corrupt conduct” under the Independent Commission Against Corruption Act 1988 (NSW).

A key part of the definition of “corrupt conduct” refers to conduct which “adversely affects” the exercise of official functions by any public official. According to the majority of the High Court the meaning of “adversely affect” in the definition of “corrupt conduct” was to cover conduct which affects the probity of the exercise by a public official of their functions. In other words, the conduct in question must be conduct which has, or is likely to have an injurious effect or otherwise detract from the integrity of the exercise by a public official of their official functions.

It was not sufficient to simply establish that the conduct could give rise to a reduction in the effectiveness or “efficacy” in the exercise of the relevant official function.

What this meant in practice was that Cunneen’s actions would only constitute corrupt conduct if she had done something to affect the police officer’s probity – for example, by offering them a bribe, which had not happened in this situation.

6. Profit from cancer? The High Court gets abreast of the matter

In a highly anticipated judgment, the High Court held in the case of D’Arcy v Myriad Genetics Inc [2015] HCA 35 that an isolated nucleic acid, coding for a BRCA1 protein, with specific variations from the norm that are indicative of susceptibility to breast cancer and ovarian cancer, was not a “patentable invention”.

Breast cancer survivor Yvonne D’Arcy sought to invalidate claims 1 to 3 of Myriad’s patent, which covered isolated nucleic acids. Those specified variations, characterised as mutations or polymorphisms, are indicative of susceptibility to breast cancer and ovarian cancer.

Section 18(1)(a) of the Patents Act 1990 (Cth) requires that, for an invention to be patentable, it must be “a manner of manufacture” within the meaning of the Statute of Monopolies, s 6. Since the Statute of Monopolies is an English statute dating back to 1623, Australian courts have had to stretch the meaning of this phrase to keep up with technological developments. In the Myriad case, the High Court has held that this phrase can only be stretched so far.

The High Court held that, when the proper emphasis is placed on the role of genetic information in the claims, the Myriad claims were at the boundary of the concept of manner of manufacture. Even though what was claimed was a result of human endeavour, to include it in patentable subject matter would involve an extension of the concept which was “inappropriate for judicial determination”.

7. No freedom for developers to speak

Freedom of speech was before the High Court in the case of McCloy v New South Wales [2015] HCA 34. In this case former lord mayor of Newcastle and property developer Mr Jeffery McCloy challenged the validity of provisions in the Electoral Funding, Expenditure and Disclosures Act 1981 (NSW) that imposed caps on political donations, prohibited donations from property developers and restricted indirect campaign contributions in New South Wales. He argued that those provisions were invalid for impermissibly infringing the freedom of political communication implied in the Commonwealth Constitution.

The High Court upheld the provisions. They found that their purpose was to secure and promote the actual and perceived integrity of the Parliament and institutions of government in New South Wales by preventing corruption and ensuring political equality. The provisions were therefore compatible with the maintenance of the constitutionally prescribed system of representative government and were reasonably appropriate to advance that legitimate object. As such, they were a permissible burden on the freedom of political communication implied in the Commonwealth Constitution.

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