Tag Archives: High Court of Australia

High Court says that bank fees may be penalties

In Andrews v Australia and New Zealand Banking Group Ltd [2012] HCA 30, the Australian High Court decided that bank fees may potentially be penalties, notwithstanding the fact that the trigger for the imposition of most of the fees was not a breach of contract. I’ve already outlined the law against penalties in some detail […]

Speak of the devil: the High Court rules on penalties

Only the other day, Sinclair Davidson and I were debating the nature of bank fees and whether they were penalties. In that post, I noted the case of Andrews v Australian and New Zealand Banking Group [2011] FCA 1376 where customers of the ANZ were suing it in relation to a variety of fees the […]

Yes, the law really does abhor a penalty

Sinclair Davidson at Catallaxy has written a post on excessive fees charged by banks, and said this: [The argument that the fees were designed purely to enrich the bank] is a bit hard to take. When you begin a banking relationship you normally sign a contract that includes the fees that you’ll pay for various […]

Restitution and illegality

The High Court has just handed down a case dealing with the question of the availability of an action for money had and received when certain contracts have been found to be unenforceable as a result of illegality: see Equuscorp Pty Ltd v Haxton [2012] HCA 7. Facts: The facts of the case are rather […]

When does the reasonable person eat chips?

Recently the High Court has had to decide when it was likely that a person might eat hot chips. Seriously. In Strong v Woolworths [2012] HCA 5, the unfortunate plaintiff slipped and fell on a hot chip which had been left on the ground outside Big W at Centro Taree Shopping Centre. She suffered serious […]

Wrongful birth – claiming for a disabled child

In The Age today there’s an article about a couple with a severely disabled child suing an IVF practitioner in negligence: Debbie and Lawrence Waller love their 11-year-old son, Keeden, but they believe he should never have been born. Just days after Mrs Waller gave birth in August 2000 following IVF treatment, Keeden suffered a […]

Spousal right to silence abolished in Australia

The High Court has recently overturned the right to refuse to give evidence against one’s spouse at common law in Australian Crime Commission v Stoddart [2011] HCA 47. It’s a fascinating decision, as it represents a further very large crack in the crumbling notion that husband and wife are one person. As I’ve mentioned here, […]

Retrospective legislation against the rule of law

Retrospective legislation and the rule of law F A Hayek neatly summarises the rule of law as follows: Stripped of all technicalities [the rule of law] means the government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority […]

Malaysian Solution Post Mark II

[This is (I hope) a more polished take on the High Court’s Malaysian Solution case, with the benefit of further reflection. It also attempts to explain just why the Federal Government thought they had such a strong case.] Also cross-posted at Online Opinion. All of Australia is buzzing with the news that the High Court […]

Breaking News: High Court declares Malaysian “Solution” illegal

Just handed down at 2:15pm today: the High Court has declared the Malaysian “Solution” to be illegal in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32. I shall shamelessly reproduce the High Court’s summary of reasons available on their site — more detailed commentary (I hope) to follow [on which, see UPDATE […]