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Click on each title below to read more about the cases under each section.

Torts

Cattanach v Melchior [2003] HCA 38

This is the leading High Court case on ‘wrongful birth’. Melchior and her husband sought damages from her obstetrician and gynecologist, Dr Cattanach, and the State of Queensland for the cost of raising and maintaining her unintended child to adulthood. Mrs Melchior had undergone tubal ligation which had been performed by Dr Cattanach in a Queensland public hospital. However, some time after the operation she became pregnant, giving birth to a healthy baby boy. While the surgery had not been carried out negligently, Dr Cattanach was held to have failed to warn Melchior of the chance of failure of the sterilisation if further investigations were not undertaken. The issue decided by the High Court was whether damages can be awarded for the cost of raising and maintaining a child. By a narrow majority (4:3) the justices of the High Court decided that the parents could recover compensation for raising and maintaining their child to adulthood. This was a departure from the law in the United Kingdom. However, the reasoning in the decision reveals the law’s difficulties in dealing with issues concerning women and childbearing. While the plaintiffs in the case ultimately succeeded, the judges’ reasoning predominantly failed to recognise the ramifications for women of the birth of an unplanned child. In addition, policy concerns raised in the minority judgments are reflected in subsequent legislation which will prevent parents in cases in the future recovering damages.

Commentary author

Isabel Karpin is a Professor in the Faculty of Law, University of Technology, Sydney. Previously Isabel worked as a legal officer at the Human Rights and Equal Opportunity Commission. Isabel specialises in feminist legal theory and health law.

Judgment author

Kylie Burns is a Senior Lecturer at Griffith University Law School. Her PhD focused on the role of social policy in the High Court and her research interests include negligence and accident compensation.

Consumer Protection

ACCC v Keshow (2005) FCA 558

Between September 1998 and May 2003, Mr Keshow sold and supplied to residents of Indigenous communities in the Northern Territory children’s educational materials and household goods. He arranged for eight residents to enter into open-ended periodic payments upon receipt of the goods. The applicants alleged that the respondent engaged in conduct that was unconscionable and misleading and sought declarations that, by his conduct, the respondent contravened provisions of the Trade Practices Act 1974 (Cth). The Federal Court of Australia found that the applicants were required to comply with conditions that were not necessary to protect the respondent’s legitimate interests and the receipt of the periodic payments was found to be unconscionable. This case concerns a supplier deliberately taking advantage of consumers with poor education and financial acumen in a remote community. While the outcome of this case is not contended, the reasons for it are. Despite clear evidence of the pivotal role of gender and race in the dealings, the judge cites reasons based in technicalities, form and process as being the basis for the unlawful conduct. The Indigenous women are rendered invisible and made silent in the decision. This invisibility serves to perpetuate the legal exclusion of Indigenous women in post-colonial Australia.

Commentary author

Bronwyn Naylor is an Associate Professor at the Faculty of Law, Monash University and is the Director of the Springvale Monash Legal Service. Her research interests include regulation and consumer protection.

Judgment author

Heron Loban is a Senior Lecturer, Faulty of Law at James Cook University. Heron was born on Thursday Island in the Torres Strait. She has chaired the Indigenous Consumer Assistance Network and was a former member of the Australian Communications Consumer Action Network. Her research interests include the issues and impact of justice and government systems on Indigenous and Torres Strait Islander communities.

Equity

Louth v Diprose [1992] HCA 61

In 1985, Mr Diprose purchased a house in which Ms Louth and her children lived in, and transferred title to her. He paid for the house outright and handled all the legal affairs because he was a practising solicitor. After their relationship broke down a few years later, Diprose sought to regain ownership of the house. The trial judge found that Diprose was 'emotionally dependant' on Louth at the time of transferring title to the house, and that she knowingly procured ownership of the house in these circumstances. Diprose was found to be 'utterly infatuated' with Louth which formed a legally recognisable 'disability'. Ms Louth was found to have 'manufactured an atmosphere of crisis' by which she manipulated Diprose’s disability. Louth's conduct was therefore unconscionable and the transaction was set aside. The majority of the High Court rejected Louth's appeal. This case, often criticised by feminist scholars, turns on a legal finding of a relationship of dependency and manipulation. These findings arguably employ gendered ‘stock stories’ which the feminist judgment rejects.

Commentary author

Paula Baron is Chair of the Common Law and Head of the La Trobe Law School. She was previously Dean of the Griffith Faculty of Law; and prior to that served as Acting Dean and Pro-Vice Chancellor at Victoria University Wellington, where she was also the first woman to be appointed professor of law. Paula has published in legal education, contract law, intellectual property law and law and gender issues. Her particular research interest is in psychoanalytic jurisprudence, that is, the interface of psychoanalytic theory and the law

Judgment author

Francesca Bartlett is a Senior Lecturer in the T.C. Beirne School of Law at The University of Queensland. Her research focuses on lawyers’ ethics, contracts and the impact of law on women.

Trustees of the Property of John Daniel Cummins, a Bankrupt v Cummins [2006] HCA 6

Mr Cummins, a barrister, failed to lodge tax returns for approximately 45 years. As a result of a substantial taxation liability (over $1 million), he became bankrupt in 2000. The Cummins had for many years lived in a home to which Mrs Cummins had contributed approximately three quarters of the purchase price. One of the key issues to be determined in the case was the relevant proportion of the home that 'belonged' to Mr Cummins and therefore the proportion that could be claimed by Mr Cummins' trustee in bankruptcy. In what was arguably a departure from previously established trust principles, it was held that where there is a matrimonial relationship, there is an inference that the husband and wife intended that they take a one-half interest in the property. As such, the trustee in bankruptcy was able to claim Mr Cummins' one-half interest in the home. While a feminist judgment in this case may not have reached a different conclusion as to the proportion of the home claimable by the trustee in bankruptcy on these particular facts, it is argued that the reasoning in the case - the application of an inference of joint ownership of the matrimonial home - is a flawed and blunt approach that fails to pay due regard to the impacts of gender and class on the appropriate allocation of interests in the family home as between women and third parties claiming through the husband/ male partner. A feminist judgment would take into account the impact of gender and class, and also consider the identity of the third party claimant as a relevant consideration in the allocation of the interests in the home.

Commentary author

Francesca Bartlett is a Senior Lecturer in the T.C. Beirne School of Law at The University of Queensland. Her research focuses on lawyers’ ethics, contracts and the impact of law on women.

Judgment author

Lisa Sarmas is a Lecturer in the Melbourne Law School, University of Melbourne and a Barrister and Solicitor of the Supreme Court of Victoria. Lisa’s current research interests lie in trusts, critical legal theory, feminist legal theory and gay and lesbian law reform.