High Court Decision Research Articles

Significant UK Environmental Law Cases 2015/16

This year’s case law review looks at decisions by the Supreme Court and Court of Appeal from mid 2015 to mid 2016. Several years ago it became clear that environmental case law is now sufficiently voluminous to mean there is no space for High Court decisions in an annual review. There has been one Supreme Court decision, the case of Champion v North Norfolk,1 which looks at habitats and environmental impact assessment. Lord Carnwath who gave the leading judgment also lays down in obiter markers on delay in challenging public decisions and the discretion of the Court in granting relief. As always, but particularly topical this year given the forthcoming EU referendum, EU law is prominent in the case law. EU law underlies most of the cases considered below and is apparent across a wide range of topic areas including habitats, environmental impact assessment (EIA), waste, environmental information and emissions trading.

PROTECTION OF RIGHTS UNDER RUSSIAN CIVIL LAW IN A COMPARATIVE CONTEXT

The article analyzes the new rules securing the protection of rights introduced in the Russian Civil Code. New enforcement provisions in the Code will contribute to the stability and sustainability of business transactions in the market economy and the observance of contractual discipline. They aim at ensuring the most complete restoration of violated civil rights and restoring the situation that existed before the violation. Positive changes appear in Article 395 of the Code, including penalties prescribing interest payments on unpaid funds for nonperformance of a monetary obligation. The changes to this article have already been tested in practice, as found in a number of interpretations announced in the decisions of higher courts of the judiciary. Yet, an analysis of the Code reveals the absence of any form of penalty in the chapters on the individual types of obligations. Furthermore, a forfeiture occurs only in certain circumstances where it is required due to the nature of the legal relations, as under, for example, transport charters and codes, and laws on the supply of goods for state requirements.

In the Aftermath ofD’Arcy v. Myriad Genetics Inc: Patenting Isolated Nucleic Acids in Australia

On 7 October 2015 the High Court of Australia unanimously allowed the appeal on D’Arcy v. Myriad Genetics Inc and ordered that claims 1, 2 and 3 of Australian Patent No 686004, entitled “In vivo mutations and polymorphisms in the 17q-linked breast and ovarian cancer susceptibility gene”, be revoked.The High Court's judgment overturned the decisions of Justice Nicholas of the Federal Court, at first instance, and the Full Federal Court. This case note provides an overview of the High Court's decision and discusses its meaning and implications for patenting isolated nucleic acids in Australia.

Condemning the Illegalization of Labor Unions as Violation of the Constitutional Right to Organize: Critique of the Seoul High Court's Decision to Revoke Legal Status of the Korean Teachers and Educational Workers’ Union

Condemning the Illegalization of Labor Unions as Violation of the Constitutional Right to Organize: Critique of the Seoul High Court's Decision to Revoke Legal Status of the Korean Teachers and Educational Workers’ Union

Analysis of IP-related court decisions using e-discovery - a case study of Apotex Pty. Ltd. v Sanofi-Aventis Australia Pty. Ltd. & Ors

The High Court of Australia concluded that methods of medical treatment are patentable with the judgement cited by Apotex Pty. Ltd. v Sanofi-Aventis Australia Pty. Ltd. & Ors. This is the first occasion the High Court has considered whether methods for the medical treatment of the human body are patentable inventions. This research paper investigates the High Court decision using an IP knowledge management and e-discovery approach, integrating techniques of ontology construction, text, and data mining algorithms, to evaluate the logical High Court decision made without the need to manually read, organise, and interpret all of the associated IP laws, opinions, and related cases. The ontological schema of the knowledge domain is constructed, based on the key terms that frequently appear in the opinions written by the High Court justices. K-means cluster analysis is applied to verify the linkages between the justices and their reason-based opinion statements. The research results demonstrate the consistency of the High Court decision, which can be derived and analysed scientifically using modern integrated methods of computer knowledge-based e-discovery. The research provides an innovative approach in accelerating IP court decision research where time to market and legal changes to market access requires immediate strategic management decision making and international market planning.

Analysis of IP-related court decisions using e-discovery - a case study of Apotex Pty. Ltd. v Sanofi-Aventis Australia Pty. Ltd. & Ors

The High Court of Australia concluded that methods of medical treatment are patentable with the judgement cited by Apotex Pty. Ltd. v Sanofi-Aventis Australia Pty. Ltd. & Ors. This is the first occasion the High Court has considered whether methods for the medical treatment of the human body are patentable inventions. This research paper investigates the High Court decision using an IP knowledge management and e-discovery approach, integrating techniques of ontology construction, text, and data mining algorithms, to evaluate the logical High Court decision made without the need to manually read, organise, and interpret all of the associated IP laws, opinions, and related cases. The ontological schema of the knowledge domain is constructed, based on the key terms that frequently appear in the opinions written by the High Court justices. K-means cluster analysis is applied to verify the linkages between the justices and their reason-based opinion statements. The research results demonstrate the consistency of the High Court decision, which can be derived and analysed scientifically using modern integrated methods of computer knowledge-based e-discovery. The research provides an innovative approach in accelerating IP court decision research where time to market and legal changes to market access requires immediate strategic management decision making and international market planning.

Protecting the Foundation and Magnificent Edifice of the Legal Profession: Reflections on Thukwane v Law Society of the Northern Provinces 2014 5 SA 513 (GP) and Mtshabe v Law Society of the Cape of Good Hope 2014 5 SA 376 (ECM)

The High Court decisions in Thukwane v Law Society of the Northern Provinces 2014 5 SA 513 (GP) and Mtshabe v Law Society of the Cape of Good Hope 2014 5 SA 376 (ECM) dealing with the question whether a parolee could be considered a "fit and proper person" to be admitted and readmitted to the roll of attorneys raise important and interrelated issues demanding definitive and systematic consideration. This contribution seeks to isolate some of the vexed questions concerning the novel issue of whether a person previously convicted of a criminal offence and who is still serving a sentence under a parole could be admitted and/or readmitted to the roll of legal practitioners.
 Thukwane and Mtshabe demonstrate that the admission or readmission must not be damaging to the integrity and standing of the profession, the judicial system, or the administration of justice, or be contrary to the public interest. It is trite that public confidence in the legal profession is more important than the fortunes of any one practitioner or prospective practitioner.
 

Regulation on Disposal of Treasury Shares -Analysis of the Seoul Central District Court Decision 2015Kahap80597 delivered on July 7, 2015 and Seoul High Court Decision 2015Ra20503 delivered on July 16, 2015-

Regulation on Disposal of Treasury Shares -Analysis of the Seoul Central District Court Decision 2015Kahap80597 delivered on July 7, 2015 and Seoul High Court Decision 2015Ra20503 delivered on July 16, 2015-

Ghosts and the Law

Ugandan law has long been haunted by ghosts. They come in many varied shapes and sizes — as the Common Law itself, as the Doctrine of Precedent and even in the manner, dress, deportment and language of our courts. All these are the ‘Ghosts of History Past, Present and Future.’ In the arena of Constitutional Law and governance the ghost appears in the form of the Political Question Doctrine (PQD), a concept most associated with the 1966 High Court decision, Uganda v. Commissioner of Prisons, ex parte Matovu. But as with all spiritual beings — such as the Roman God, Janus — there are two sides to the case. In other words, there are not just one but (at least) two ghosts of ex parte Matovu. There is the backward-looking one which supported the extra-constitutional overthrow of government in 1966 and paved the way for military dictatorship, judicial restraint and conservatism. And in the same case, there is its reverse which “jettisoned formalism” to the winds, overruled legal “technicalities,” and underlined the need for the protection of fundamental human rights. The jettisoning formalism decision eventually opened the way to a robust and growing industry of Public Interest Litigation (PIL) in Uganda. As we celebrate 20 years of the 1995 Constitution and approach the 50th anniversary of the decision in the case, it is the most appropriate time to look back and consider which of the ghosts of ex parte Matovu has been most successful in influencing the Ugandan body politic. What does the future portend for the life of these fraternal twins?

Korea’s Landmark Case for Improving the Legal Process for Asylum Seekers

The purpose of this article is to analyze the principle of non-refoulement as applied in four important recent Korea court decisions regarding the asylum-seeking process at ports of entry. Incheon District Court decision 2014 Gu-Hab 30385 and Seoul High Court decision 2014 Nu 52093 concern a non-referral decision; Inchon District Court decision 2014 In 39 concerns illegal airport detention; and Constitutional Court decision 2014 Heon-Ra 592 concerns the right to counsel. In these cases, the courts ordered changes to the previous detention and deportation system and recognized the right to counsel by asylum applicants at ports of entry. As the Korean refugee status determination process is biased towards denying entry to unwelcome foreigners and biased against recognizing refugees, it is important to recognize the duty of the government to develop a better system at ports of entry in order to prevent the unjustified deportation of asylum seekers back to their country of origin.

DOCTORS' LIABILITY TO THE PATIENT'S RELATIVES IN GENETIC MEDICINE: ABC V St George's Healthcare NHS trust[2015] EWHC 1394 (QB).

This comment analyses the recent High Court's decision in ABC v St George's Healthcare NHS Trust. In this case, the court struck out a claim brought by a patient's daughter against her father's doctors for their failure to warn her of his hereditary disease. The claimant argued that the doctors' failure caused her harm and violated her rights under the European Convention on Human Rights. It is argued in this comment that the judge should have accepted the claimant's application.

Administrative and Legal Act: Classical Theory and Practical Problems

The article is devoted to one of the most interesting theoretical and practical problems of Russian science of administrative law – administrative acts. It appears that many difficulties encountered in the domestic law enforcement and judicial practice are associated with poor elaboration of the theory of acts in the science of administrative law in Russia, and, accordingly, insufficient legal regulation of administrative procedures. The article highlights the concept and features of administrative-legal acts, their types, the complexity of the judicial practice, imposed by the lack of theory of acts. Decisions of higher courts that can compensate these deficiencies are described. Particular attention is paid to the problems of the theory of acts and their classification, types of acts that science “does not notice”, but in practice, they do exist and create some difficulties. The author emphasizes the idea that the theory of acts and regulation should be aimed at maximum protection of citizens’ interests. The article can be useful to law students and legal practitioners, as well as all interested in the problems of administrative law.

The Politics of Face Coverings and Masks in Russia, France, and Quebec

Since 2004, governments in a number of countries have initiated tense political debates over the question of whether religious symbols should be permitted in public places. Frequently, such debates have focussed on the head and face coverings worn by many observant Muslim women, as has been explored by a rich scholarly literature. However, relatively little has been written about the specific reasons why these laws have been adopted, and few cross-national comparisons have been made. This paper will examine the following cases: first, the law against wearing face coverings in France, adopted during Nicolas Sarkozy’s presidency in 2010; and second, the extensive debates about access to government services for people wearing religious clothing in Québèc (Canada). Finally, the paper will examine the distinct case of Russia, where high court decisions have revealed a reversal in the authorities’ former tolerance of the wearing of head coverings in public places. Three variables help to explain why these laws came upon the political agenda in these admittedly very different countries. First, all three adopted previous measures to limit citizens’ ability to don face coverings during political protests; second, these countries’ choices influenced each other, showing the importance that global influences can play in policy formation; and finally, political leaders attempted to use laws on face and head coverings as a strategy to reinforce their power.
 Full text available at: https://doi.org/10.22215/rera.v9i2.230

The Politics of Face Coverings and Masks in Russia, France, and Quebec

Since 2004, governments in a number of countries have initiated tense political debates over the question of whether religious symbols should be permitted in public places. Frequently, such debates have focussed on the head and face coverings worn by many observant Muslim women, as has been explored by a rich scholarly literature. However, relatively little has been written about the specific reasons why these laws have been adopted, and few cross-national comparisons have been made. This paper will examine the following cases: first, the law against wearing face coverings in France, adopted during Nicolas Sarkozy’s presidency in 2010; and second, the extensive debates about access to government services for people wearing religious clothing in Québèc (Canada). Finally, the paper will examine the distinct case of Russia, where high court decisions have revealed a reversal in the authorities’ former tolerance of the wearing of head coverings in public places. Three variables help to explain why these laws came upon the political agenda in these admittedly very different countries. First, all three adopted previous measures to limit citizens’ ability to don face coverings during political protests; second, these countries’ choices influenced each other, showing the importance that global influences can play in policy formation; and finally, political leaders attempted to use laws on face and head coverings as a strategy to reinforce their power.

Supplies under Continuing Leases: The Impact of the MBI Properties Decision

The significant outcome of the Australian High Court decision in the MBI Properties case was that a supply can arise even when a taxpayer passively remains bound by the actions of another, such as agreeing to be bound by the terms of an existing property lease. After this decision, the mere passive holding of property can result in GST liability. In this article, the author reviews the arguments put forward by the parties in this case, along with the decision of the Court and the subsequent Decision Impact Statement issued by the Australian Tax Office related to the case.

Civility, gender and the law: critical reflections on the judgments in Monis v The Queen

Law sets the bounds of civility within any given society. Setting those bounds so as to reflect evolving community expectations and understandings requires frank, open and inclusive discussion. Through an analysis of the male and female judgments in the recent High Court decision of Monis v The Queen (2013) 249 CLR 92, this article exposes a worrying, uncritical endorsement of incivility in public and political discourse that may undermine the inclusivity and therefore value of this discussion. The case provides an opportunity for reflection on the nature of political discourse within the Australian system and more particularly on the role of gender in setting the standards of that discourse.

Holding the Line: Regulatory Challenges in Ireland and England When Business and Charity Collide

Developing a legal framework to manage the interactions between the worlds of commerce and charity presents challenges. Should there be situations in which charities can engage in trade in competition with for-profit firms? Should there be limits to the extent of any such involvement? Should the ‘relatedness’ of the business activity to charitable mission act as a mitigating factor? Or, should the ultimate ‘destination’ of the resulting income be the deciding factor in sanctioning charitable trading, regardless of the relatedness of the activity to the charitable mission? Should charity law or tax law control the extent to which the market/charity boundary accommodates incursions by either business or charity in the other sphere? Even to the degree to which such intersectoral activity is tolerated, what should be the financial and structural consequences for entities that engage regularly and substantively in such ‘cross-border’ activities? Prompted by the 2008 Australian High Court decision in Word Investments, this paper reviews the legal framework governing so-called ‘hybrid activity’ in Ireland and the United Kingdom, acknowledging both the difficulties caused by the shifting nature of the boundary line between the business and nonprofit sectors and the challenges inherent in any reformulation of the guiding legal principles. The paper looks at these issues from both a trading and charity law perspective and a trading and tax law perspective before considering how Irish and UK law might have responded differently to the Australian courts in a Word Investments type scenario.

Study on Legal Issues Concerning “Resident” of the Income Tax Treaty between the Republic of Korea and the United States ― In re：decision of Seoul High Court No.2012no594(2014.6.27.) ―

Study on Legal Issues Concerning “Resident” of the Income Tax Treaty between the Republic of Korea and the United States ― In re：decision of Seoul High Court No.2012no594(2014.6.27.) ―

The importance of least restrictive care: the clinical implications of a recent High Court decision on negligence.

This paper aims to explain the meaning and implications for practice of the High Court of Australia's finding in the negligence case, Hunter and New England Local Health District v McKenna [2014] HCA 44. The facts of the case and the law of negligence are reviewed before reporting the Court's decision. The High Court found that the obligation upon doctors to provide the least restrictive option for care that was imposed by the, then applicable, Mental Health Act 1990 (NSW) was inconsistent with an obligation that might otherwise be imposed by a common law duty to have regard to the interests of those with whom a psychiatric patient may come into contact if not detained. The Court's finding underlines the importance of clinicians documenting their clinical reasoning around why their negotiated management plan was the option least restrictive of the patient's freedom and most protective of his or her human rights.

The Status of the Kable Principle in Australian Constitutional Law

This article looks at the significance of a recent trio of High Court decisions for the status of the principle established in Kable v Director of Public Prosecutions (NSW). The Kable principle as it has come to be understood will be outlined and also why it has attracted criticism and generated controversy in some quarters. The analysis undertaken will demonstrate that the High Court has secured its status in Australian constitutional law. It will however be suggested that the more significant legacy of the Kable principle after these cases is to secure a fuller integration of the Australian judicial system and outline what this may entail for the operation of constitutional doctrine, in particular the emerging due process principle.