As the sun sets on 2020, we look back to nine of the most memorable Australian court decisions and proceedings from the past twelve months. This year we’ve seen plenty of significant legal developments, shocking headlines in the media and landmark decisions.
The cases making the final cut in our annual write up are grouped into three areas: disaster, disruption and protests, big business brought to heel, and stranger than fiction.
Disruption, for better or worse
If you’ve done enough “doomscrolling” for 2020, feel free to skip this part of the list. The cases in this section remind us of why 2020 will be a year that goes down in the history books. We’re talking about bushfires, disruption caused by the pandemic, to the continued rise of cyber security threats.
The bushfire charity case
Macdonald & Or [2020] NSWSC 604
In response to Australia’s catastrophic bushfires during the summer of 2019-2020, Celeste Barber crowdfunded a staggering $51 million for the NSW Rural Fire Service & Brigades Donations Fund (RFS Fund) via PayPal. The trustees of the RFS Fund sought judicial advice under section 63 of the Trustee Act 1925 (NSW) regarding the proper performance of their powers and duties as the trustees in applying those monies.
“[the Trustees] wish to honour the intentions and beliefs of Ms Barber and the donors who responded to the appeal concerning what should be done with the donated money. But they wish to do so consistently with the [RFS] Trust Deed and in accordance with applicable law.”
– Justice Slattery at paragraph 6
The Attorney General of NSW intervened to join the proceedings on behalf of the Crown to represent the object of the charity.
In summary, Justice Slattery advised that the trustees were able to apply the monies in the RFS Fund for three of the four possible objects, which means monies:
- Could be spent, for example, on setting up or contributing to a fund to support rural firefighters injured while firefighting.
- Could not be spent, for example, on paying money to charities or rural fire services, to assist in providing relief to animals affected by bushfires.
Not only an exemplary case of civic initiative and generosity, the case will also surely feature in equity and trusts textbooks for many years to come.
Black Lives Matter protest
Padraic Gibson v Commissioner of Police (NSW Police Force) [2020] NSWCA 160
In July, the New South Wales Court of Appeal dismissed an appeal against the decision in Commissioner of Police (NSW) v Gibson [2020] NSWSC 953 that prohibited a proposed black lives matter protest in Sydney’s CBD. That decision meant the protest could not go ahead.
“The principal issue on appeal was whether any non-compliance by the Commissioner with the procedure under s 25(2) of the Act deprived the Court or was a precondition to the Court’s exercise of jurisdiction to prohibit the proposed assembly.”
– headnote extract
Bathurst CJ, Bell P and Macfarlan JA noted (at paragraph 6) that that the appeal was the fifth time in the preceding two months for which an application had been made to NSW Court of Appeal to either authorise or prohibit a public assembly under the Summary Offences Act 1988 (NSW).
“These cases have been heard at a time when, on the one hand, the state and the nation are endeavouring to cope with the profound public health challenges (and economic consequences) of the COVID-19 pandemic whilst, on the other hand, there is a strong and legitimate desire to demonstrate peacefully against the scourge of Aboriginal deaths in custody.”
– Bathurst CJ, Bell P and Macfarlan JA at paragraph five
ASIC’s cyber security power play
ASIC v RI Advice Group Pty Ltd (File Number: VID556/2020)
In August, the Australian Securities & Investments Commission (ASIC) announced that it had commenced proceedings against RI Advice Group Pty Ltd in the Federal Court of Australia for failing to have adequate cyber security systems. This marks the first time that ASIC has instituted proceedings of this kind and serves as a warning to boards that cyber security shouldn’t merely be an afterthought.
The proceedings were brought against the broader backdrop of a heightened government focus on cyber security in the wake of an increasingly sophisticated threat environment. In the same month, the government announced the Australian Cyber Security Strategy 2020 which promises to invest $1.67 billion in cyber security initiatives over the next 10 years.
“Drought and flood are the stuff of national legend”
Schieb v Burnheim [2020] NSWSC 1254 (Schieb v Burnheim)
Judges occasionally delight us with streaks of literary flare. The opening paragraph in the decision in Schieb v Burnheim is a great example, reading like an intro to an Australian version of War and Peace*:
“Water is essential to rural Australia. Drought and flood are the stuff of national life and legend. These proceedings concern access to water for a property in country New South Wales.”
– Justice Kunc at paragraph one
In summary, the case concerned whether the Schiebs had broken a promise to the Burnheims to ensure that the Burnheims would become a member of a bore scheme.
“The Great Artesian Basin lies far below the properties of the Coonamble Shire. Bores drilled hundreds of metres into the ground release water from that vast aquifer to irrigate crops and provide water for stock.”
– Justice Kunc at paragraph two
Justice Kunc ultimately found that the Burnheims’ claims against the Schiebs, in contract and under the Australian Consumer Law, were successful, which meant that the Burnheims were entitled to $131,821 in damages.
*The judgment was fortunately not in the same ballpark as War and Peace, topping out at 238 paragraphs.
Big business brought to heel
2020 saw regulators continue to take the stick to companies in the financial services sector as part of the broader fallout from the Hayne Royal Commission. A couple of players in the Big Tech sector (including Google) found themselves in the doghouse too, against the broader backdrop of the Australian Competition and Consumer Commission’s ongoing inquiry into the supply of digital platform services, and Netflix’s recent exposé, The Social Dilemma. And in a positive development for the fight against climate change, a climate change activist compelled superannuation titan Rest Super to be more of a climate-friendly corporate citizen.
Westpac under fire for AML/CTF law breaches
CEO of AUSTRAC v Westpac Banking Corporation [2020] FCA 1538
In October, the Federal Court of Australia found that Westpac breached the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (the Act) more than 23 million times. For example, the Court found that Westpac had breached section 45(2) of the Act on 19,502,841 occasions by failing to giver reports of 19,502,841 international funds transfer instructions to the CEO of AUSTRAC within the time frame required by section 45(2) of the Act.
The case resulted in Westpac being ordered to pay a $1.3 billion pecuniary penalty, which is the largest in Australia’s corporate history.
OAIC commenced proceedings against Facebook
Australian Information Commissioner v Facebook Inc & another (File Number: NSD246/2020)
In March, the Office of the Australian Information Commissioner (OAIC) commenced proceedings against Facebook alleging that the social media giant “committed serious and/or repeated interferences with privacy in contravention of Australian privacy law”.
As part of the claim, the OAIC alleges that Facebook’s actions resulted in “the personal data of around 311,127 Australian Facebook users exposed to be sold and used for purposes including political profiling, well outside users’ expectations.”
In summary, the OAIC’s statement of claim alleges that:
- From March 2014 to May 2015, Facebook disclosed the personal information of Australian Facebook users to This Is Your Digital Life, in breach of Australian Privacy Principle 6.
- Facebook did not take reasonable steps during March 2014 to May 2015 to protect its users’ personal information from unauthorised disclosure, in breach of Australian Privacy Principle 11.
In April, the Federal Court of Australia granted leave to make orders for substituted service and for the Commissioner to serve Facebook outside Australia with the various originating documents.
Australian superannuation titan settles stoush with climate change activist
Mark McVeigh v Retail Employees Superannuation Pty Ltd (File Number: NSD1333/2018)
In November, a climate change activist by the name of Mark McVeigh settled proceedings against his superannuation provider, Rest Super. The proceedings related to the fact that Rest Super had failed to provide Mr McVeigh with information that he reasonably needed to “make an informed decision about the management of the fund”.
Although the details of the settlement were not disclosed, the settlement is significant because Rest Super had approximately $57 billion under management at the time of settlement and has agreed to change its approach to align its portfolio along climate friendly grounds.
Stranger than fiction
These final two cases remind us that truth is sometimes stranger than fiction.
Pride and prejudice in the workplace
Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126 (Hughes v Hill)
The appeal in Hughes v Hill concerned sexual harassment between the principal of a legal practice, his (female) junior who was his employee, and at one time, also his client.
One of the Appellant’s arguments on appeal was that the evidence did not support the trial judge’s conclusion that he had sexually harassed the Respondent because his actions were akin to those of Mr Darcy in Pride and Prejudice.
Justice Perram (with whom Justices Collier and Reeves agreed) was far from impressed:
” … The facts of this case are about as far from a Jane Austen novel as it is possible to be… Nor can I accept Senior Counsel’s submission that one should infer that the Appellant only wished to be the Respondent’s ‘platonic’ lover.”
– paragraph 40
In considering the series of events relating to the sexual harassment, Justice Perram stated:
” … One cannot divorce the unsettling form of the Appellant in his underwear from his email protestations of love or from his request that the Respondent should be his lover or from his ghostlike practice of hovering in doorways until dispelled by a hug. They were all of the same piece.”
– paragraph 38
And in another flourish, Justice Perram found:
” … Wherever may lie the frontiers of the juristic conceptions in s 28A(1) [of the Sex Discrimination Act 1984 (Cth)] of the unwelcome sexual advance or unwelcome conduct of a sexual nature, they comfortably enclose the shabby state of affairs in which a man gains access to his female employee’s bedroom dressed only in his underwear. … ”
– paragraph 41
Unsurprisingly, the appeal was emphatically dismissed by all three judges.
A victory for pet owners
Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 (Cooper)
This case concerned an appeal to the NSW Court of Appeal in relation to a four-and-a-half-year battle over the right of a dog owner to keep her dog in Darlinghurst’s 43-storey Horizon building. Horizon reportedly spent half a million dollars on legal fees!
The general out-take and good news for pet owners (not to mention the pets themselves) is that following the decision in Cooper, strata by-laws for buildings in NSW must not include blanket prohibitions on keeping animals.
Best of the rest
Here are a handful of some of the other memorable cases from 2020:
- The Big Mac vs Big Jack trade mark dispute in the Federal Court (which has been described as a “whopper” of a bun fight).
- Clive Palmer’s challenge to Western Australia’s border closure – Palmer v State of Western Australia (No 4) [2020] FCA 1221.
- The Robodebt class action settlement.
- The first major Australian COVID-19 insurance test case decision – HDI Global Specialty SE v Wonkana No. 3 Pty Ltd [2020] NSWCA 296.
- Happy Lounge Pty Ltd v Choi and Lee Pty Ltd [2020] QDC 184. As we say farewell to 2020, this decision echoes one of the key lessons for contract drafters from the past 12 months. The lesson is never to overlook the importance of including carefully drafted boilerplate terms such as force majeure.
Now that you’ve explored the most captivating cases of 2020, stop by Practical Law’s legal wrap up available on-demand.
