CA SE NOTES - SUPREME COURT
CAMERON FORD BARRISTER, ARBITRATOR, ADJUDICATOR, MEDIATOR
www.cameron-ford.com
Supreme Court judgments Civil procedure Abuse of process – relitigating issues finally determined In DO v Attorney-General (Cth) & Ors [2021] NTSC 5, Brownhill J dismissed an application for habeas corps as an abuse of process because it sought to relitigate issues finally determined in the Federal Circuit Court, the Full Court of the Family Court and the High court, there was ample opportunity to raise the arguments there that were raised here, the orders were final and binding on the plaintiff, the essentials issues were the same, there was no plea of fresh evidence, it would be oppressive and unfair to the defendant, the principle of finality would be undermined, and the balance of justice supported dismissing the proceeding.
Costs Differential and indemnity orders In Young & Conway v Chief Executive Officer, Housing (Costs) [2021] NTSC 8, Blokland J declined to make an differential costs order based on success on individual issues, saying the background, context and facts had relevance to most issues a that the appellant was substantially, although not overwhelmingly, more successful than the respondent. Her Honour said it would be unfair to order each party to bear its own costs on the basis the matter had been remitted to NTCAT to
determine according to law as this was contrary to practice and would discourage appeals on questions of law. Her Honour declined to award indemnity basis sought because a party conceded an issue. Her Honour said that, although the issue should have been conceded earlier, it was appropriate to take time to consider.
Criminal procedure Valdity of complaint – ambiguity, specificity, duplicity In Whittens Pty Ltd v Judge Fong Lim & Anor [2021] NTSC 9, Brownhill J dismissed an application for judicial review of the Local Court’s holding a complaint was valid. Her Honour held that that it is jurisdictional error not to dismiss an invalid complaint, just as it is to dismiss a valid complaint. A reference to ‘workers’ in the complaint referred to, in the context, workers of the accused employer and was not ambiguous. A complaint alleging breach of a duty in failing to take reasonably practicable measures must state what measures should have been taken but need not specify the detailed actions which it was reasonably practicable for the accused to take. It is proper to charge an accused with a breach of its health and safety duty by reference to the acts or omissions of its employees.
LAW SOCIETY NT BALANCE EDITION 1|21
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