Some interesting decisions were handed down by the Supreme Courts of Australasia in April and May 2012. Selected cases are summarised below, and include the grant of access to court documents to a third party TV researcher and the confirmation that pregnancy could in some circumstances amount to “personal injury”.


The Hancock Family Memorial Foundation Ltd (Claimant) v Fieldhouse (First Respondent) [No.4] [2012] WASC 176, 29 May 2012

The Supreme Court of Western Australia considered a third party application from Ms Lorna Knowles, a researcher on a current affairs programme, for leave to inspect and copy documents in relation to the above proceedings for the purposes of a programme which was being created (the “Programme“).

The proceedings, concluded on 9 May 2012, concerned a claim for breach of fiduciary and common law duties by the First Respondent, who was a solicitor for the Claimant.  The Claimant opposed the granting of leave to Ms Knowles on the following grounds:

1. as the proceedings had concluded and the decision was reserved, any inspection of documents may lead to a public and prejudicial discussion of the merits of the case;

2. the proceedings had nothing to do with the subject of the Programme, a mining magnate named Gina Rinehart;

3. the purpose of the request was not to assist the media to obtain a full and fair understanding in order to report on the proceedings in an informed manner, therefore it was not facilitating the principles of open justice; and

4. the principles of open justice do not require all documents on the court file to be open to inspection to any person.

Le Miere J held that there was no risk of the court or witnesses being affected by any public discussion of the case.  Investigative journalism was deemed to be a proper purpose for inspecting documents which had been referred to in an open court, whether the purpose is to report on the proceedings in question or to obtain information relevant to the subject matter of investigative journalism.  The Court held that in this instance, the principle of open justice had been engaged and it therefore granted Ms Knowles access to the documents.

New Zealand

Fagalilo (Applicant) v Time (Respondent) [2012] NZSC 28, 16 April 2012

The Applicant and the Respondent are leaders of two factions of the congregation which worshipped at a church owned by the Green Valley Samoan Assembly of God Trust Board (the “Trust Board“), such board being governed by a deed (the “Trust Deed“).  In 2005, the Applicant’s group excluded the Respondent’s group from worshipping at the church.  The Respondent brought proceedings in the High Court to remove the existing trustees and appoint new trustees to the Trust Board. 

The High Court decided to dismiss the existing trustees and appoint the Public Trust as an interim trustee in order to conduct an election for new trustees.  The Court of Appeal judgment dealt with the subject of who should vote at the election, to the detriment of the members of the Applicant’s group.

In the Supreme Court, the Applicant contested the Court of Appeal’s approach to the election and appointment of new trustees, arguing that it was not in compliance with the Trust Deed or the law.  He also attempted to re-litigate an issue already determined by the High Court which was not addressed in the Court of Appeal.  The Court dismissed both grounds of application on the basis that the interpretation of terms of a specific Trust Deed was not a question of public or general importance; neither were the circumstances of the Applicant and his group as a result of the Court of Appeal’s decision capable of giving rise to a miscarriage of justice.  In any case, the Court considered that the Court of Appeal’s approach conformed closely to the relevant provisions of the Trust Deed.

Keith Allenby (Appellant) v H (First Respondent) [2012] NZSC 33, 9 May 2012

This appeal addressed the question of whether a woman who becomes pregnant following a failed sterilisation has suffered personal injury caused by medical misadventure, and is therefore entitled to cover under the Injury Prevention, Rehabilitation and Compensation Act 2001 (the “Act“).

The First Respondent suffered mental illness after she fell pregnant following a sterilisation procedure carried out by the Appellant, a surgeon.  She subsequently commenced proceedings in tort against the Appellant and the District Health Board which employed him in the High Court.  The Appellant applied to strike out the proceedings on the basis that the First Respondent had cover under the Act which consequently precluded a civil claim.  The First Respondent remained neutral as to whether she would seek a remedy under the Act or through a civil claim.  However, the Accident Compensation Corporation, as an interested party, argued that the Court of Appeal’s decision in a 2008 case (Accident Corporation v D), that pregnancy is not “personal injury” and cover was therefore not available, was right and should be confirmed.

The appeal was allowed.  The Court was not persuaded by the argument that pregnancy is a natural process and could not, therefore, amount to injury.  The judges unanimously held that an impregnation resulting from a medical misadventure was a personal injury for which cover was available under the Act.  Blanchard J noted that denial of such coverage would not be consistent with the overall spirit of the statute which was “intended to provide universal coverage for…the consequences of medical misadventure“.