News: Live tweeting the High Court

Two weeks ago, I ‘live tweeted’ a hearing at Victoria’s Court of Appeal, sending out roughly 115 tweets in around an hour (‘storified’ here) of discussions about alleged contempt by three Ministers.  It was my first try at live tweeting and the tweets were well received and distributed – and, it turns out, wrong. At last Friday’s hearing, a court officer told me that the use of mobile phones (or even having them on) is forbidden in Victoria’s Supreme Court When I  asked if that included live tweeting, he told me that if I ‘argued any more’, I’d have to leave. It turns out, though, that there is a rule on live tweeting by ‘members of the public’ set out on the Court’s website:

Accredited journalists may use electronic equipment for the publication of material on the internet (blogging, twittering and similar)…. Non-accredited journalists, free-lance writers, ‘citizen journalists’ and members of the public need to seek permission from the trial judge for the use of electronic equipment in Court.

Alas, this rule is cleverly hidden away. While court visitors who consult the website’s instructions on ‘court etiquette‘ are simply told to ‘turn off all mobile phones and other electronic equipment’, those seeking the process allowing them to live tweet must first click ‘contact us’, then ‘media centre’, then a link that directs ‘members of the media’ to a document titled ‘media policies and practices‘, which has  a heading – ‘journalists using electronic equipment in court’ – where the above discussion is buried in the middle (behind a sign that says ‘beware of the leopard’.) How visitors are meant to seek permission to live tweet appeal proceedings, particularly urgently scheduled ‘mentions’ such as those about contempt, is anyone’s guess.

So, what is the policy on live tweeting High Court proceedings? Continue reading

Rizeq v Western Australia

The High Court has dismissed an appeal on a constitutional matter on the operation of s 79 of the Judiciary Act 1903 (Cth). The appellant was a New South Wales resident who was convicted of state drug offences against s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) in the Western Australia District Court by a majority jury verdict. As the trial was a ‘federal diversity’ matter (that is, between a state and the resident of another state), the WADC tried the appellant in exercise of its federal jurisdiction. The WASCA dismissed his arguments that this majority verdict was inconsistent with the requirement in s 80 of the Constitution that juries must return unanimous verdicts for convictions, and held that Western Australia’s state law on majority verdicts, and not s 80, applied to the case as a federal diversity matter, due to the operation of s 79. Before the High Court the appellant sought to contend that the WASCA erred in its application of the High Court’s decision in Momcilovic v The Queen [2011] HCA 34, and that it erred in its approach to the interaction between the State law and s 79.

The High Court unanimously dismissed the appeal.

The plurality (Bell, Gageler, Keane, Nettle and Gordon JJ) held that s 6(1)(a) applied at the time of the appellant’s offences and continued to govern the assessment of his criminal liability, even though the WADC exercised federal jurisdiction to resolve the controversy between the appellant and WA about the Continue reading

The Queen v Dickman

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on the admissibility of photoboard identification evidence. The respondent was convicted of intentionally causing serious injury and making a threat to kill on the basis that he was the ‘old man’ who participated in a gang bashing, as identified by the victim, who selected him from a photoboard two years after the crime (but had made other wrong selections at the time). A majority of the VSCA allowed his appeal against conviction, holding that the trial judge erred in failing to exclude the photobaord evidence because its ‘seductive quality’ outweighed its weak probative value, setting aside the convictions and ordering a new trial. Before the High Court, the Crown sought to challenge these conclusions, and contended that the VSCA erred in assessing the probative value by reference to the complainant’s unreliability.

The High Court (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) unanimously allowed the appeal and restored the convictions, holding that the real issue was the majority’s conclusion that the identification’s probative value was outweighed by the danger of unfair prejudice to the respondent: Continue reading

GAX v The Queen

The High Court has allowed an appeal against a decision of the Queensland Court of Appeal on unreasonable or insupportable jury verdicts. The appellant was convicted of aggravated indecent dealing with a child and acquitted of two other counts of the same offence. A majority of the QCA (Atkinson J, Morrison JA agreeing) rejected his appeal against that conviction, in which he contended that the guilty verdict was inconsistent with the not guilty verdicts for the other counts. Before the High Court, the appellant argued that the QCA majority failed to make an independent assessment of the evidence in determining that it was open to the jury to convict him, and that the majority erred in concluding that the verdict was not unreasonable (see at [21]–[22).

The High Court unanimously allowed the appeal. The plurality judges (Bell, Gageler, Nettle and Gordon JJ) noted that there was ‘force’ to the appellant’s arguments that the lead judgment of Atkinson J did not disclose her Honour’s own Continue reading

News: Bell J on ‘The Individual Judge’

UNSW Law Journal has now released the video of Bell J’s keynote speech at the launch of its thematic issue on ‘The Individual Judge.’ Pleasingly, this was certainly no puff piece. Beyond praising the journal’s ‘honoured place’ amongst peer-reviewed law journals and describing the issue as ‘very readable and stimulating’, she didn’t (unless I missed something) have a single good thing to say about any of the papers inside it. Indeed, she strongly criticised several and threw in some critiques of academic writing on the Court’s 2013 Monis decision to boot. Her language was forceful and full of humour, and many of her arguments were persuasive. All of this, in my view, is a powerful example of everything we lose when each High Court judge’s individual voice is submerged in anonymous and depersonalised joint judgments.

Unsurprisingly, Bell J directly addressed the paper by Partovi et al identifying the authors of the Mason Court’s joint judgments, discussed here. She says: Continue reading

News: Sir Keith Aickin’s death, 35 years ago

At 1.25pm on Friday 4th June 1982, Gwyn Reiseger was driving on Coolart Road in Somerville on Victoria’s Mornington Peninsula. Ahead of her, she could see a small green Volkswagen waiting at a stop sign to cross the road. As she slowed down and indicated that she was turning left at the intersection, the driver of the green car slowly drove across Coolart Road. Unfortunately, he didn’t look the other way until too late. Seeing a silver Datsun speeding towards him at 90km/h, he stopped in the middle of the intersection. Reiseger heard a screech of brakes and then saw the Volkswagen spin off the road. Both cars were wrecked. She later told the coroner:

Both drivers were having a conversation when I got there. I told someone to go and ring an ambulance. The driver was still seated in the vehicle and I had a quick look at him and he seemed to be alright. He had a cut on his left calf which was the only injury I observed.

The Datsun driver, navy diver Russell Crawford, was uninjured. After the ambulance left, he asked a tow truck operator who the Volkswagen driver was. He was told that it was Keith Aickin.

Two weeks later, and thirty-five years ago yesterday, the High Court’s Sir Keith Aickin died at Melbourne’s Prince Henry’s Hospital. Continue reading

News: Three private law matters granted special leave

My co-editor Katy Barnett has lately lamented the lack of special leave grants in private law matters. She will be happy about the three grants last Friday. In my view, a particular pleasure of private law matters is how hard-fought they can be over minutiae. An example is one of the three matters granted, which was described as follows in the lower court by the dissenting judge:

This is yet another appeal in what has been a long and bitterly contested series of actions and appeals between Clone Pty Ltd (“Clone”) and Players Pty Ltd (“Players”). There have already been two sets of proceedings that have been the subject of appeals to the Full Court and unsuccessful applications for leave to appeal to the High Court.

For added interest, one side of the dispute – who lost two High Court special leave applications but succeeded in their most recent state appeal – includes three well-known sports stars. Their opponent – a company owned by a wealthy family including a high profile investment banker – obtained leave to appeal the reopening of their victory 11 years ago. Astonishingly, the core dispute is about whether the word ‘NIL’ in a 1994 lease agreement was crossed out with a blue pen, to be resolved by examining four surviving photocopies of the lease because the original was lost. (For a taste of the factual subtleties of that process, see the dissenting judgment at [673]-[694].) And yet, the case raises some very major issues indeed concerning civil discovery, the obligations of civil litigants and the finality of civil rulings.

The three matters where leave have been granted are: Continue reading

News: High Court cases behind today’s contempt hearing

Today’s reported contempt proceedings in the Supreme Court of Victoria do not (yet) involve the High Court. Rather, they concern an ongoing appeal in Victoria’s Court of Appeal by the Commonwealth Director of Public Prosecutions against a ten year sentence imposed on convicted terrorist Sevdet Besim by the Supreme Court. However, the issues are closely tied to several past High Court decisions.

One is a ruling in late 2015 allowing a Cth DPP sentencing appeal in a federal drugs matter, where the High Court unanimously held that:

to prefer one State’s sentencing practices to sentencing practices elsewhere in the Commonwealth, or at least to prefer them for no more reason than that they are different, is contrary to principle, tends to exacerbate inconsistency and so ultimately is unfair.

This ruling almost certainly is the background for reported comments by judges hearing the DPP’s appeal that, the case of terror sentences:

Warren CJ: “NSW courts appeared to put less weight on the personal circumstances of the offender than Victorian courts, with greater concern for denouncing the crime and sending a message to others in the community. It’s as if the Murray River is an enormous gap in terms of sentencing.”

Weinberg JA: “The range seems to be in the 20s [years] for offending somewhat similar to this. It is extremely worrying, I would have thought, that there is such a gap.”

Just as in the 2015 case, the difficulty faced by the judges is that Victorian courts consistently gave lower sentences than other states, notably NSW. The High Court has made it clear that Victoria should generally follow the national approach, rather than its own one.

The other High Court rulings in play today are ones concerning the common law offence of scandalizing the court. Continue reading

Air New Zealand v Australian Competition and Consumer Commission; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission

The High Court has dismissed two appeals against a decision of the Full Federal Court on restrictive trade practices law and the location of markets, specifically the meaning of a market ‘in Australia’. Section 4E of the Competition and Consumer Act 2010 (Cth) provides that for the purposes of the Act ‘market’ means, absent a contrary intention, a ‘market in Australia’. The ACCC brought proceedings against the two appellant airlines, who are both involved in transporting cargo from other countries into Australia, claiming that the airlines had engaged in collusive behaviour by fixing surcharges and fees on air cargo arriving into Australia from Hong Kong, Singapore and Indonesia. The airlines claimed that the markets for that cargo were located in the departure nations, not Australia, and thus the provisions of the Act did not apply to their dealings there. The primary judge agreed with the airlines, holding that the markets were located in those countries because they were where the decision to choose an airline to carry freight into Australia took effect (the ‘switching decision’), and that decision was made when the Continue reading

Hughes v The Queen

The High Court has dismissed an appeal against a decision of the New South Wales Court of Criminal Appeal on tendency evidence in the context of multiple child sexual offences. The appellant, a well-known actor in a 1980s television series, was convicted of nine child sexual offences and sentenced to 10 years and nine months imprisonment. Among the evidence at trial was evidence from a range of complainants and other witnesses on the appellant’s sexual interactions with them, which was said to establish a tendency of the appellant to act in a particular way or have a particular state of mind, specifically, holding a sexual interest in children, using his social, familial and employment relationships to gain access to them, and engaging in particular kinds of sexual conduct. The NSWCCA dismissed his appeal against the conviction and sentence, rejecting (among a number of other arguments) that the trial judge erred in allowing the tendency Continue reading

News: High Court hears appeal in…. Sydney??

This may not seem like news, but it is a first in nearly four decades. While the High Court’s Sydney Registry is often host to hearings of Australia’s apex court, these have long been limited to minor fare: special leave hearings, case management and the like, involving between one and three judges. By contrast, today’s hearings involve the Court’s core business (appeals) and at least five judges, something that last happened in Sydney on 10th and 11th March 1980, when all seven members of the Barwick Court heard a workers compensation dispute.

What changed after that date? The opening of the High Court’s first and only dedicated premises in May 1980 in Canberra. While Sir Garfield wanted that move to mark an end to the Court’s ‘circuits’ of Australian capitals (then administered by its Sydney Registry), a combination of resistance from the other judges (who didn’t want to live in Canberra) and state bars preserved the circuit system, albeit in a more limited form described in the Court’s most recent annual report as follows:

The Court conducts its sittings in Canberra and such other places as are determined by a Rule of Court made by the Justices in the preceding year. In addition, applications for special leave to appeal to the Court are heard regularly in Sydney and Melbourne, and the Court continues the practice, established on its inauguration, of sitting in Brisbane, Adelaide, Perth and Hobart if warranted by the amount of business.

So, what has changed now? Continue reading

News: Who wrote the Mason Court’s joint judgments?

Monday evening was the launch of the latest ‘thematic’ issue of the UNSW Law Journal. This issue’s theme is ‘The Individual Judge’, which is also the title of Kiefel CJ’s 2014 speech and paper, where she first said ‘collegiality is not compromise’. The paper is one of three where she has defended the High Court’s practice of attributing judgments largely written by one judge to all the judges who agreed with it. While there is much of interest in the new issue of the UNSWLJ, only one of the articles responds directly to Kiefel CJ’s stance. The paper by Andisheh Partovi et al sets out five arguments for correctly attributing authorship of judgments: ensuring individual accountability (an argument I also put here), discouraging free riding, and serving the interests of judges, academics and lawyers. More importantly, the authors acted on their views by outing the likely authors of the joint judgments of the High Court from 1987 to 1995, when Sir Anthony Mason was Chief Justice. Needless to say, their list is absolutely fascinating.

So, who, out of the eight judges who sat in that period, likely wrote the most important joint judgments of the Mason Court? Continue reading

News: Upcoming conferences include French court legacy

In two months, Melbourne Law School’s own Centre for Comparative Constitutional Studies will hold its fourth annual conference, this time focussing on:

  • Non-Statutory Executive Power;

  • Proportionality after McCloy;

  • Restrospectivity and the Rule of Law

The first of these topics in particular is associated with the work of the French court, while the second captures a key issue in the transition to the successor Kiefel court. More importantly:

The final session of the Conference provides a retrospective on the High Court under Chief Justice Robert French, with a special focus on Chapter III and the separation of powers.

Unsurprisingly, the day will encompass a host of High Court cases:

The cases to be discussed include: Re Culleton [No 2] (2017); Cunningham v Commonwealth (2016);… Murphy v AEC (2016); Plaintiff M68 (2015); P T Bayan Resources v BCBC Singapore (2016); Rizeq v Western Australia (2016); McCloy v New South Wales (2015); Assistant Commissioner Condon v Pompano Pty Ltd (2013); Wainohu v New South Wales (2011); Momcilovic v The Queen (2011); Kirk v DPP (2010); South Australia v Totani (2010) and International Finance Trust Co Ltd v New South Wales Crime Commission (2009).

Looking further ahead, 2018 will be the first time that the biennial Public Law Conference series (previously held in Cambridge) will be held in Australia, inevitably including a consideration of the French Court’s work. Former High Court judge Ken Hayne is a speaker at both conferences.

The website for the CCCS conference is here, while the one for the Public Law conference is here.

News: Bumper crop of special leave grants includes a sequel

After rejecting all written applications this session, the High Court granted seven applications in Friday’s twin oral hearings in Canberra. The grants include a direct sequel to a 2015 decision by the Court concerning an industrial dispute in Melbourne. As discussed in this post, the incident was a 2013 blockade of concrete trucks in Footscray at a site connected to the Regional Rail Link, seemingly led by Joe Myles, a CFMEU employee. Two years ago, the High Court ruled that the CFMEU, facing contempt proceedings for allegedly breaching an order barring such action, could be required to divulge telephone details that could link it to Myles. The contempt matter has since been settled and the CFMEU and Myles have admitted breaching the Fair Work Act in a parallel proceeding in the Federal Court. The new issue before the High Court concerns an unusual civil penalty that the Federal Court imposed on Joe Myles for his role in the Footscray incident.

The seven matters where leave has been granted this session are: Continue reading

News: High Court overrules 130 year-old criminal law precedent

In a decision this week, Aubrey v The Queen [2017] HCA 18, a 4-1 majority of the High Court overruled an 1888 decision of the Court of Crown Cases Reserved (a predecessor to England’s Court of Appeals), which had held that a man who gave his wife gonorrhoea could not be convicted of ‘inflicting’ harm. Holding that the English decision should not be applied to the case of Michael Aubrey, a NSW man convicted of maliciously inflicting grievous bodily harm by giving his sexual partner HIV in 2004, the majority said:

Granted, until this case, Clarence had not been distinguished or judicially doubted in New South Wales. It was assumed that proof of an offence against s 35 of the Crimes Act necessitated proof of a direct causing of some grievous physical injury with a weapon or blow…  It may also be accepted that the Court is ordinarily loath to overturn a long-standing decision about the meaning of a provision unless there is doubt about it, or to depart from the view of judges who, because of proximity in time to the passage of the legislation in question, were more aware of the reasons underlying the legislation. But that is not this case.

The majority listed nine reasons why Clarence should no longer be followed, including contrary pre-1888 authority, the lack of a single majority view in the case, two forceful dissenting judgments, subsequent discoveries about infection, the subsequent abandonment of the presumption of consent to marital sex and the more recent rejection of Clarence in England’s courts.

Few, other than people in a similar position to Aubrey himself, will mourn the death of Clarence. However, the majority’s approach to overruling that decision is an interesting contrast to the Court’s refusal last year to overturn its own little-loved decisions on complicity Continue reading

Aubrey v The Queen

The High Court has dismissed an appeal against a decision of the New South Wales Court of Criminal Appeal on the meaning of ‘inflict’ in ‘infliction of grievous bodily harm’ and the foresight of risk in establishing recklessness. Aubrey was charged with several offences related to his allegedly infecting his partner with HIV through unprotected sex and in the knowledge that he was HIV positive. The appellant sought to have a more general offence against s 35 of the Crimes Act 1900 (NSW) of maliciously inflicting grievous bodily harm quashed on the basis that, on the Crown’s factual case, the transmission did not constitute an ‘infliction’. The NSWCCA held that ‘inflicts’ should not be given a limited, technical meaning or require any violent act with an immediate result, and that transmitting a disease that manifests itself over time could amount to grievous bodily harm; special leave to appeal to the High Court against that decision was refused. Following these interlocutory appeals and a trial, Aubrey was convicted of maliciously inflicting grievous bodily harm. A differently constituted NSWCCA rejected his argument that this count disclosed no offence known to the law, agreeing with the reasoning in the earlier NSWCCA decision. Following a grant of special leave, the appellant sought to Continue reading

The Queen v Afford; Smith v The Queen

The High Court has decided two related appeals against decisions of the Victorian Court of Appeal and the New South Wales Court of Criminal Appeal on proof requirements for federal drug trafficking offences where the accused deny knowledge of drugs discovered in their luggage. Afford was arrested at Melbourne Airport for importing heroin hidden in oil and a laptop that he had been given as part of an apparent scam. A majority of the Victorian Court of Appeal allowed his appeal against conviction on the basis that Afford clearly did not want or intend to import any drugs. Smith was arrested at Sydney Airport with methamphetamine hidden inside soap and golf sets that he had been given as part of the scam. The NSWCCA unanimously upheld Smith’s conviction because his intent could be inferred from an admission that he had ‘significant misgivings’ about the gifts. The NSWCCA, which handed down its decision after the VSCA decision in Afford, also held that the VSCA erred in distinguishing the matter before it from Kural v The Queen [1987] HCA 16, in which the High Court held that the intention to import drugs can be inferred from a person’s awareness of a risk that the luggage contains drugs.

The High Court allowed the Crown’s appeal in Afford and dismissed Smith’s appeal against his conviction. The joint judges (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) Continue reading

News: Forest challenge stumbles into a factual thicket

This week, the full bench of the High Court heard a challenge by ex-politician Bob Brown to Tasmanian laws giving police new powers to protect ‘workplaces’, including part of the Lapoinya forest where a logging operation has been occurring. Apart from its immediate political significance, the case is of enormous legal interest because the Court is being asked to revisit both ‘limbs’ of 1997’s Lange test on the operation of the Constitution’s implied freedom of political communication: what counts as a burden on the freedom (Tasmania argues that the new law cannot impose a burden on people who were, it claimed, already trespassers) and the test for when a law that burdens the freedom is invalid (some of the State parties have asked the Court to rethink the three-step proportionality test adopted by a bare majority of the Court in 2015’s decision on political donations.)

But these political and legal issues have long risked being sidelined by factual concerns. Continue reading

Talacko v Bennett

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on the enforcement of Australian judgments overseas in the context of bankruptcy. Section 15(2) of the Foreign Judgments Act 1991 (Cth), which lays out the procedure for an Australian court to issue a certified copy of a judgment for the purposes of enforcement in a foreign court, provides that a judgment creditor cannot make an application until the expiration of any ‘stay of enforcement’. Section 58(3) of the Bankruptcy Act 1966 (Cth) provides that when a debtor has become bankrupt ‘it is not competent for a creditor  to enforce any remedy against the person’.

Following a long-running family dispute over properties in then Czechoslovakia that were expropriated by the Communist regime, the VSC held in 2009 that one sibling had reneged on an agreement with the others to Continue reading

Plaintiff M96A/2016 v Officer in Charge, Melbourne Immigration Transit Accommodation

The High Court has allowed a demurrer and dismissed proceedings in relation to a challenge to the constitutional validity of ss 189 and 196 of the Migration Act 1958 (Cth). The plaintiffs, Iranian asylum seekers detained on Nauru since 2014, were brough to Australia under s 198B for the ‘temporary purpose’ of medical treatment on mainland Australia. While in Australia, they contended that there was no lawful basis for their detention while temporarily in Australia, arguing that a non-citizen brought to Australia for a temporary purpose cannot be detained under ss 189 and 196, because that detention would constitute an invalid exercise of federal judicial power by the Executive. Continue reading

Pickering v The Queen

The High Court has allowed an appeal against a decision of the Queensland Court of Appeal on whether part of a general defence of compulsion is available for the crime of manslaughter under Queensland’s criminal code. During a fight with his best friend, Pickering produced a knife and warned the deceased to stay away from him. The deceased charged at him and during the scuffle Pickering’s knife stabbed and killed the deceased. A jury acquitted him of murder, but convicted him of manslaughter. The QCA rejected Pickering’s arguments that the trial judge should have directed the jury on the general defence of reasonably resisting violent threats (known as ‘compulsion’) in s 31(1)(c) of the Criminal Code 1899 (Qld), and not just the narrower defence of self-defence in s 271. Section 31 provides that a person is not criminally responsible for an act or omission when it is reasonably necessary to resist actual and unlawful violence threatened to that person, though the protection does not extend to actions which would constitute murder Continue reading

News: Four new criminal cases

The latest round of special leave determinations is notable for the attention the media gave to some refusals of leave. On Wednesday, the Court published a list of thirteen written refusals of leave. One, refusing Victoria’s Attorney-General leave to appeal Attorney-General v Glass (in her capacity as Ombudsman) [2016] VSCA 306  (where the Court of Appeal held that the Ombudsman can investigate a referral from the Legislative Council concerning entitlements) was reported with the headline ‘High Court delivers embarrassing blow to Andrews government‘, including criticism from the shadow Attorney-General of the challenge’s ‘scandalous waste of taxpayer dollars’. The Court’s disposition (published the next day) stated:

The application for special leave to appeal discloses no reason to doubt the correctness of the decision of the Court of Appeal of the Supreme Court of Victoria.

which does, perhaps, qualify as somewhat embarrassing. A second case, refusing leave from Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181, which held that misleading labelling on Nurofen warranted a penalty of $6M (as ‘the bottom of the appropriate range for the contraventions’), was widely reported, including internationally, through Associated Press under the headline ‘Australian court rejects British painkiller firm’s appeal‘. The disposition stated that ‘The decision of the Full Court of the Federal Court is not attended with sufficient doubt to warrant the grant of special leave to appeal’, which is perhaps a little less embarrassing than the disposition of the Ombudsman matter.

The wider significance of special leave determinations has always been hard to parse, as the Court’s reasons are not always about the merits of the appeal or the arguments made by either side and, anyway, they typically only represent the views of two of the Court’s seven judges. However, the Court’s shift to written determinations, while a welcome saving of (amongst others’) ‘taxpayer dollars’, have made it even harder to judge the flavour of any particular determination, because we no longer have access to clues that would appear i a transcript of the oral hearing about the arguments that were made by each side and the particular views of the judges about the merits and other issues. An extreme illustration is a matter granted leave on the papers on Thursday. Commissioner of the Australian Federal Police v Hart & Ors [2016] QCA 215, part of a decade-long saga of proceeds of crime litigation, is 1275 paragraphs (and nearly 130,000 words) long. Justice Morrison’s judgment begins with a 5-page overview detailing the three appeals dealt with (each with notices of contention), the seven common issues, the sixteen appeal grounds, eighteen determinations of general disputes and the eleven outcomes for particular assets – and his judgment turns out to be in dissent on a number of key issues! The High Court granted the Commonwealth leave in each appeal, but we don’t yet know what arguments they raised (and what notices of contention will  be raised.) We may get a hint when the transcript announcing the written determination s published, but otherwise we will have to wait until the next High Court bulletin (for a brief summary) or the parties’ submissions on appeal (for fuller details.)

Having noted these uncertainties, here are summaries of the four cases where leave was granted last week, all criminal and three from Queensland: Continue reading

Re Day [No 2]

The High Court, sitting as the Court of Disputed Returns, has answered a set of questions referred to it by the Senate regarding the qualifications of Robert John Day AO to be chosen as a senator under s 44(v) of the Constitution. The Court held that he was ineligible to be chosen, that there is a vacancy in the place for which he was returned, and that that vacancy will be filled by a special count of ballots.

Section 44(v) provides that any person who has any direct or indirect pecuniary interested in any agreement with the Commonwealth Public Service shall be incapable of being chosen or sitting as a senator.

Day was first elected to the Senate in 2013, taking office in July 2014. Following the 2016 double dissolution election, he was declared re-elected to the Senate in August 2016. In December 2015, the Commonwealth entered into a lease agreement with Fullarton Investments Pty Ltd, the registered proprietor of a property on Fullarton Rd in Kent Town, South Australia. The property had been used by Day as an office since April 2015, and the December lease was for the purposes of Day’s office accommodation (an ordinary parliamentary benefit). Through a set of transactions in 2014 (see, eg, [6]ff), the ownership of the Fullarton Rd Property passed from B & B Day Pty Ltd — controlled by Day (and later his wife) and the Continue reading

News: Kiefel J’s last judgment, Kiefel CJ’s first

Yesterday’s two judgments mark the final step of the transition from the French Court to the Kiefel Court. Until this week, judgments published by Susan Kiefel have been attributed to ‘Kiefel J’, even though she has been Kiefel CJ since January 30th. In today’s two decisions, the first, Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12, has a joint judgment attributed to ‘Kiefel, Bell & Gordon JJ’, while the second, Kendirjian v Lepore [2017] HCA 13, has a solo judgment attributed to ‘Kiefel CJ’. The obvious explanation of the shift is that ‘Kiefel J’ is used for judgments where Susan Kiefel was still a mere Justice when she sat at the hearing. Ecosse was heard on 14th December last year, at a time when Robert French was still Chief Justice – he had six weeks left in the role – but by then he had not heard any cases for over two months and the Court had already held a ceremony to mark his retirement. By contrast, Kendirjian is the fifth case heard by the High Court since Susan Kiefel became Chief Justice, but the first to be decided.

So, what were the first ever words in a judgment by Kiefel CJ?:

I agree with Edelman J.

Continue reading

Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on contract clause amendments and liability for rates and land taxes. The respondent is the current tenant on an ambiguously amended old-form 99-year lease, concluded between an earlier landlord and tenant in 1981, over farmland now owned by the appellant. Clause 4 of the lease stated, and was amended by striking through, that: ‘all rates taxes assessments and outgoings whatsoever excepting land tax which during the said term shall be payable by the Landlord or tenant. A majority of the VSCA held that this clause left the landlord liable for those payments including land taxes levied upon the landlord. Kyrou JA, in dissent, held that this interpretation was not tenable because of the existence of cl 13, which required the tenant to pay the entire 99-year rent in advance, Continue reading

Kendirjian v Lepore

The High Court has allowed two appeals against a decision of the New South Wales Court of Appeal on advocates’ immunity. The appellant was the plaintiff in a car accident matter. The appellant sued his solicitor (Lepore) and barrister (Conomos) for professional negligence after they informed him that a settlement offer had been made just before trial, but allegedly failed to tell him the amount ($600,000). Instead, the appellant claimed the respondent lawyers rejected the offer without seeking instructions on the basis that it was too low, and advised him that his claim was worth twice as much. Upon the claim succeeding, the appellant received only $300,000. The NSWCA held that the advice or omission to advise was out of court conduct that led to the continuation of Court proceedings, and consequently fell within the scope of advocate’s immunity. After the NSWCA’s judgment, the High Court handed down its judgment in Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16, holding that advocate’s immunity does not extend to negligent advice that leads to a settlement between the parties. On appeal to the High Court, the appellants contended that Continue reading

News: Kiefel CJ describes and defends her Court’s judicial method [updated]

The new Chief Justice of the High Court, Susan Kiefel, gave the 2017 ‘Supreme Court Oration‘ in Brisbane last week to a sell-out crowd. I dare say it is one of the most significant speeches a sitting Chief Justice has given, outlining in detail the High Court’s current process for producing judgments and responding to some criticisms of that Court’s approaches, including those of former High Court judge Dyson Heydon and current President of the NSW Court of Appeal, Margaret Beazley. The Australian Financial Review covered the speech as favouring ‘productivity over prose‘, and contrasted her approach to one-time law student favourite Lord Denning. The Chief Justice’s line:

I have always assumed it to be a universally held view that a judgment should be as succinctly stated as the matter allows.

has the potential to be her version of Dixon CJ’s famous, and much debated, pronouncement: ‘There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.’

The 12-page speech has far too much detail to cover in a short news post. However, one passage, explaining one reason she deprecates unnecessary separate judgments, caught my (and the Australian Financial Review‘s) eye: Continue reading

News: Three grants of leave

Last week’s special leave hearings broke a four-month drought in appeals granted special leave ‘on the papers’. There were three grants of leave announced, one on Wednesday (without a hearing) and one each on Friday’s two oral hearings in Brisbane and Sydney.

The three appeals that will now go to the High Court are:

  • Compton v Ramsay Health Care Australia Pty Ltd [2016] FCAFC 106, which concerns the circumstances when a person who a court previously held owed a debt and is now bankrupt can now argue that he didn’t owe the debt. In 2015, the NSW Supreme Court held that the respondent owed just under $10,000,000 [EDITED: see comments] to the applicant after guaranteeing a now bankrupt company’s debts, rejecting his argument that details of the debt were not attached to the papers he signed and that he wasn’t aware of them. After he went bankrupt and the applicant applied to sequester the debt (preserving it from the demands of other creditors), he submitted new financial evidence challenging whether the bankrupt company ever owed anything to the respondent. The Full Court of the Federal Court unanimously held that the trial judge should have opted to inquire into whether any debt was owed, even though the applicant never challenged the amount of the debt in the NSW Supreme Court.
  • Kennedy & Thorne [2016] FamCAFC 189, which examines the enforceability of binding financial agreements (colloquially known as ‘pre-nups’), where one party insists on the agreement as a pre-condition to marriage. The parties to a 2007 marriage differed in assets (none vs $18M),  Australian immigration status (a tourist visa vs Australian citizenship) and English fluency (little vs complete.) A week before they married, they signed an agreement prepared by the richer party’s solicitor, despite the poor party receiving independent legal advice that the agreement was ‘no good’ and (about a further agreement shortly after the marriage) ‘terrible’. Ruling after their 2011 separation and the richer spouse’s death in 2014, the Full Court of the Family Court overturned a trial judge’s finding that the agreement was the result of duress, holding that the trial judge failed to provide adequate reasons for the finding of duress and failed to make a finding of unlawful pressure (as opposed to a mere threat not to marry), instead holding that the agreement was binding on both parties.
  • Shop, Distributive & Allied Employees Association v ALDI Foods Pty Ltd [2016] FCAFC 161, concerns the process for approving a regional enterprise agreement with employees who are presently in a different region. After the majority of seventeen employees of Aldi who were offered roles in a new ‘region’ of the company’s operations (on the NSW/SA border) voted to approve an enterprise agreement and the agreement was approved by the Fair Work Commission, the union (which was not involved in the earlier agreement) challenged the agreement on three grounds. A majority of the Full Court of the Federal Court held that the agreement could not be approved because it failed a statutory requirement that ‘the agreement has been genuinely agreed to by the employees covered by the agreement’ – at the time of the vote, the new region had no employees. The same majority also held that the Commission failed to properly apply the requirement that the employees be ‘better off overall’, relying instead on a clause in the agreement that promised the employees equal (but not better) terms than the award. But the Court unanimously held that it could not invalidate the agreement because of a one-word deviation between the notice given to the employees and the required wording, because, to the extent that the different wording was important – something the three judges differed on –  the Commission’s failure to act on it was not a jurisdictional error.

Prior v Mole

The High Court has dismissed an appeal against a decision of the Northern Territory Court of Appeal on the legality and consequences of a public drunkenness arrest. Two police officers fined the appellant for drinking in public and, following an altercation, took him into protective custody purportedly under s 128 of the Police Administration Act (NT). Section 128(1) allows a police officer to take a person into custody if the officer has reasonable grounds for believing the person is intoxicated in a public place and because of that intoxication is unable to care for him or herself, may intimidate, alarm or cause substantial annoyance to people, or is likely to commit an offence. The appellant was acquitted on a charge of disorderly behaviour, Continue reading

Kumar v Minister for Immigration and Border Protection

The High Court has allowed an appeal against a decision the Federal Court of Australia on the extension of time limits on visa applications that fall on a weekend. The appellant received the respondent’s application for a temporary student visa on a Monday and rejected it on the basis that the applicant must hold a temporary graduate visa, which for the respondent had expired on the Sunday immediately before. North J allowed the applicant’s appeal, holding that s 36(2) of the Act Interpretation Act 1901 (Cth), which provides that where an act ‘requires or allows a thing to be done’ and the ‘last day’ for doing it is a Saturday, a Sunday Continue reading

Perara-Cathcart v The Queen

Jeremy Gans, ‘News: The High Court Splits Three Ways on Three-Way Splits’ (1 March 2017).

The High Court has dismissed an appeal against a decision of the Full Court of the Supreme Court of South Australia on the use of evidence of illegal drug dealing within a rape trial. A jury convicted the appellant of rape and making a threat to kill against K. During the trial the prosecution led evidence from K and her boyfriend J that the appellant had supplied them with methylamphetamine prior to the rape and death threat incident, and marijuana at a later date. The SASCFC held that both K and J’s evidence was admissible in the appellant’s trial because they cast light on both the prosecution’s claim that the rape Continue reading

Bondelmonte v Bondelmonte

The High Court has dismissed an appeal against the Full Court of the Family Court on whether teenage children removed from Australia in breach of a parenting order must return despite their expressed unwillingness to do so. Following the Bondelmontes’ separation in 2010, the Family Court made equal shared parenting orders with living arrangements to be decided by the parties and the children. In 2016, the father removed the two teenage boys to the United States, where they stayed for more than 14 days, in breach of the parenting orders. A majority of the Full Court of the Family Court upheld the trial judge’s order Continue reading

News: The High Court splits three ways on three-way splits

Today’s decision in Perara-Cathcart v The Queen [2017] HCA 9 reviews a split decision in the Full Court of South Australia’s Supreme Court, which Gageler J’s judgment usefully describes with a table:

This combination raises a long-standing puzzle about the judgments of multi-member courts that have to decide two different issues in a particular case and manage to produce a three-way split. Continue reading

News: Four new criminal law appeals, including Van Beelen case

The Kiefel Court held its first oral special leave hearings on Friday morning. Last week, the Court ruled on several dozen written applications, dismissing them all. According to the High Court’s business list, a further seven matters were ‘TO BE HEARD IN CANBERRA AND BY VIDEO-LINK TO ADELAIDE AND TO SYDNEY’. However, on Thursday, the next day’s court list revealed, for the first time, that there would be two separate hearings at the same time, one in Canberra (hearing three applications, including two from Adelaide via video link) and the remaining four live in Sydney (rather than from Sydney via video link. [EDIT: Corrected. See comment below.]) It seems unlikely that anyone was put out by this late change of plans, but it is also unclear why it was not announced earlier.

The High Court granted leave in four matters, all of which relate to crimes or the criminal law. The four decisions appealed are: Continue reading

Western Australian Planning Commission v Southregal Pty Ltd; Western Australian Planning Commission v Leith

The High Court has allowed an appeal against a decision of the Western Australian Court of Appeal on the availability of compensation for landowners affected by a public purpose reservation. The respondents were in the process of purchasing a parcel of land when it was made subject to a public purpose reservation under pt 4 of the Planning and Development Act 2005 (WA), which prevented the respondents from developing the land without the appellant Commission’s approval. The appellant refused that approval, and the respondents then claimed compensation under pt 11 div 2 of the Act, s 173 of which provides that ‘a person whose land is injuriously affected by the making … of a planning scheme is entitled to obtain compensation’ for that injurious affection. The appellant then declined each claim on the basis that none of the respondents fitted Continue reading

Commissioner of State Revenue v ACN 005 057 349 Pty Ltd

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on the repayment of erroneous land tax payments. The appellant Commissioner wrongly assessed a double land tax payment of the respondent taxpayer’s land between 2008 and 2012, and repaid the excess amounts assessed. The Commissioner refused to repay similar excessive payments from 1990 to 2002. The Court of Appeal held that the earlier assessments contained the same duplication error as the later one. The Court of Appeal noted that that error was not disclosed on the face of the assessments and could not have been discovered by the taxpayer with reasonable diligence, though it was known to the Commissioner, and ordered repayments. The Court of Appeal Continue reading

Palmer v Ayres, Parbery and Owen as liquidators of Queensland Nickel Pty Ltd (in liq); Ferguson v Ayres, Parbery, Owen as liquidators of Queensland Nickel Pty Ltd (in liq)

The High Court has decided a constitutional matter on the validity of s 596A of the Corporations Act 2001 (Cth), holding that the section is not invalid as contrary to ch III of the Constitution by conferring non-judicial power on federal courts and courts exercising federal jurisdiction. Section 596A provides that on the application of an eligible applicant, a court is to summon a person for examination about a corporation’s examinable affairs if it is satisfied that the person is or was an officer of the company prior to it being wound up.

The plaintiffs were directors of Queensland Nickel at various points from 2013. Following a successful application by creditors to wind the company up in April 2016, the defendant liquidators summoned the plaintiffs for examination under s 596A, and the plaintiffs were examined and produced documents. The plaintiffs then challenged the constitutional basis of s 596A, making six submissions in support of that argument. First, that the power to summon a person under s 596A did not satisfy the functional or ‘classical’ Continue reading

Catch-22 in the Court of Disputed Returns: Re Culleton (No 2)

By Jeremy Gans

Re Culleton [No 2] Case Page

‘What did you mean,’ he inquired slowly, ‘when you said we couldn’t punish you?’ ‘When, sir?’ ‘I’m asking the questions. You’re answering them.’

No-one cares about Re Culleton [No 2] [2017] HCA 4. Not Rod Culleton, who is out of the Senate regardless, thanks to his bankruptcy problems. Not political types, because the One Nation candidate’s spot will just be taken by another one. Not anyone else, because no-one much likes the ex-Senator (or never Senator or whatever he is — was? — now) or cares who’s who in One Nation. And, it seems, not the High Court either, which last week phoned in a judgment in the case.

This indifference is a bit of a pity. Re Culleton [No 2] raises lots of issues that have nothing to do with Culleton and a number that have nothing to do with elections — and the High Court’s judgment fluffs several of them. Re Culleton [No 2] is a fine example of much that is wrong with Australia’s apex court these days.

‘I didn’t say you couldn’t punish me, sir.’ ‘When?’ asked the colonel. ‘When what, sir?’ ‘Now you’re asking me questions again.’

Every Australian’s right to be elected to Parliament (and to cast a valid vote for their preferred candidate) is limited by the following text:

44 Any person who:

(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or

(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or

(iii) is an undischarged bankrupt or insolvent; or

(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or

(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Section 44 of the Constitution is well meant, but has mostly silly effects. Para (i) forces all dual citizens who want to stand for election to first give up their non-Australian citizenship forever. Para (iv) likely forces all public servants (including all teachers) to quit (and not just take leave from) their jobs if they just want to try to become an MP. Para (v) is basically incomprehensible (and might invalidate the election of many investors, depending on how the High Court rules in Re Day [No 2].) Para (iii), the best of a bad bunch, still makes it risky for anyone to combine running a business with being a politician (as both Rod Culleton and Bob Day exemplify.)

And then there’s para (ii), which keeps Parliament free of (some) criminals. While that certainly sounds like a good idea, Australia’s contemporary criminal law is a good deal broader than most people imagine. The drafters of s 44(ii) wanted to ban people convicted of a ‘felony or any infamous crime’, which in 1900 covered the sort of crimes that could see criminals executed or deprived of all of their property. But Samuel Griffiths, realising that criminal law terms can change or lose their meaning over time, suggested a different test: ‘any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer’. Alas, those replacement words – especially ‘offence punishable’ – are now s 44(ii)’s biggest problem.

‘When didn’t you say we couldn’t punish you? Don’t you understand my question?’ ‘No, sir. I don’t understand.’ ‘You’ve just told us that. Now suppose you answer my question.’

We mainly know criminal ‘offences’ by their shorthand labels — murder, rape, theft, etc — but, under Australian law, offences actually consist of a complex (often very broad) definition and a maximum (often very high) penalty. Lots of offences cover an extremely wide range of behaviour, from absolutely trivial to extremely serious. Assault can be anything from an unwanted tap on the shoulder to a kick in the face. Drug possession can be anything from one banned pill to a truck full of contraband. Criminal damage can be anything from putting up a poster to burning down a house. Child pornography can be anything from a sext on your phone to a hard drive’s worth of horror. And so on. We tolerate these broad definitions (and the accompanying vast maximum penalties) because Australia’s criminal justice system is also full of discretion: prosecutors rarely chose to prosecute trivia and, if they do, judges rarely choose to punish it.

But there is no discretion in s 44(ii). If you have ever done anything trivial that happens to fall within the definition of a serious offence, then you can lose your right to stand for election (and your voters will lose their right to elect you) simply through bad timing, even though you never came within cooee of ‘imprisonment’. All it takes is for someone to charge you with an offence that bundles together whatever trivial thing you did with much more serious behaviour that merits a lengthy stay in prison. That is exactly what happened to Rod Culleton. Continue reading

News: New High Court Robes

During Kiefel CJ’s ceremonial sitting to mark her investiture as Chief Justice (recorded here), it is noted that she had particular involvement with the design of the new High Court robes. She was also apparently pivotal in designing the Federal Court robes, and commissioned theatre designer Bill Haycock to design them. Haycock was subsequently also asked to redesign the High Court robes.

I confess to having a crafty streak, although I am no weaver – drawing, writing and knitting are more my cup of tea.

I was delighted by this blog post, by Kay Faulkner, the weaver responsible for the sleeves for the new High Court robes. Please do read it all in detail if you want to know about the process of creating the robes. The material is handwoven, and exquisite. The pattern of the sleeves were designed to resemble the ripples left by waves on sand. It is fascinating to look at the way in which the various parties worked together and created these beautiful robes. Delightfully, everyone took a turn at weaving the final thread on the fabric.

After reading this post, I watched the video of Kiefel CJ’s investiture with a different understanding of the care which had been taken to make those robes.

Re Culleton [No 2]

The High Court, sitting as the Court of Disputed Returns, has decided a matter referred to it by the President of the Senate over the validity of the election of Senator Culleton. Culleton was elected as a Senator for the State of Western Australia in July 2016. In March 2016, prior to his nomination and election, he was convicted in his absence of larceny in a NSW court, and was liable to be sentenced to up to two years imprisonment. In August 2016, after his election, Culleton was brought before the court, which annulled the earlier conviction and heard the matter afresh, found him guilty on his own plea, and then dismissed the charge without convicting him of the offence. In November 2016 the President of the Senate referred the matter of Senator Culleton’s eligibility to the Court of Disputed Returns (see at [10]–[12]).

Section 44(ii) of the Constitution provides that ‘Any person who:

has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer … shall be incapable of being chosen or of sitting as a senator.

The Court unanimously held that because Culleton had been convicted of and was subject to be sentenced for an offence punishable by imprisonment for a year or longer, s 44 operated to disqualify Culleton from being elected Continue reading

News: ACs in the HCA

This has undoubtedly been a busy week for the High Court’s website manager, with multiple changes to incorporate, including moving Kiefel J to Chief Justice and inserting Edelman J in the current justices list, and removing French CJ from the current justices list – he is now at the end of the Former Chief Justices list. A further change, also visible on the Court’s ‘About the Justices’ page, as to add ‘AC’ to all mentions of Gageler J:

As this image shows, the photo of the seven judges has not yet been updated (though French CJ is blocked by the drop-down menu.) Presumably, the Court is waiting for the first occasion when the seven current judges sit together (probably Thursday’s hearing of Rizeq v Western Australia, concerning the application of the constitutional right to a jury in state prosecutions involving non-state residents.)

Amidst the excitement of Kiefel CJ and Edelman J’s new judicial roles, Gageler J’s entry into the General Division of the Companion of the Order of Australia,  five years after his appointment to the High Court, has received little attention. Continue reading

News: Kiefel CJ’s swearing in by Bell J

The swearing in of Justice Kiefel as the Chief Justice of the High Court of Australia was major news throughout Australia, and rightly so. But, as Professor Adrienne Stone pointed out on twitter, the Australian Financial Review fluffed its reporting:

The photo the Fin used was from Kiefel J’s swearing in as a High Court judge in 2007. On Monday, Kiefel CJ was sworn in by the High Court’s next most senior judge, Bell J, arguably adding to the groundbreaking nature of the event from a gender perspective.

Without letting Fairfax off the hook, I have noticed that there don’t seem to be any photos online of Bell J swearing in Kiefel CJ anywhere. Continue reading

News: Testimony in the High Court

Here’s something you don’t often read in High Court transcripts:

HER HONOUR: Come into the witness box please, Mrs Smith. Do you wish to take an oath or an affirmation?
MRS SMITH: An oath.
DEBRA KIM SMITH, sworn:
HER HONOUR: Have a seat please, Mrs Smith, and pour yourself a glass of water if you would like one.
THE WITNESS: Thank you.

Debra Smith was testifying before Gordon J as part of litigation about the validity of former Senator Bob Day’s election last year. The final case’s hearing will be held in the second week of February before the full High Court (with Susan Kiefel as Chief Justice and James Edelman newly on the bench.) This week’s hearing is a preliminary one to resolve some factual disputes, the result of an order made by French CJ in November:

10. If the parties have been unable to agree by 22 December 2016 a statement of all the facts and documents which are relevant to the reference, the hearing and determination of the facts will be heard by a single Justice at a date to be fixed with a view to a referral to the Full Court thereafter.

The parties agreed on most issues, but not all of them. According to a ruling by Gordon J last week:

Notwithstanding that agreement, Ms McEwen sought, and continues to seek, additional findings of fact. The additional facts are directed to three separate issues: Mr Day’s interest in the lease with the Commonwealth (“Issue 1”), Mr Day’s statement and declaration in nominating for the Senate in 2016 (“Issue 2”) and distortion of the vote (“Issue 3”).

At Monday’s hearing, two witnesses, Debra and her husband John, both acquaintances of Senator Day and his building company, testified on the first issue and were cross-examined by Day’s counsel.

Witness evidence before the High Court, while unusual, is not unprecedented. Continue reading

News: New special leave procedures affect injunction practices

Litigants who win their ‘day in court’ often have to wait until long afterwards to reap the rewards, because of the mere possibility that the decision might be successfully appealed. An example is a dispute between members of Perth’s Mercanti family about the validity of Michael Mercanti’s 2004 appointment of his son Tyrone in his place as appointer of a trust governing proceeds of the family’s shoe repair business. Although Tyrone first won that battle in October 2015 in Western Australia’s Supreme Court, he has been subject to a series of injunctions concerning his exercise of powers under the trust ever since. First, the Supreme initially issued an injunction in 2013, presumably when the action by Michael, his wife, and two other children, commenced. Second, after ruling in Tyrone’s favour, the same court immediately issued an injunction pending Michael’s appeal to the Court of Appeal, which effectively lasted thirteen months until Michael lost the appeal in late November 2016. Third, the Court of Appeal immediately issued a three-week injunction to allow Michael time to consider an application for special leave to the High Court. Fourth, the Court of Appeal issued a second three-week injunction because Michael (apparently for understandable reasons) was not able to act before the High Court shut for Christmas. Fifth (but perhaps not finally), earlier this month, the High Court’s Kiefel J issued a further injunction against Tyrone, with no end date. That final injunction arose, in part, because the appellants thought the Court of Appeal wouldn’t grant a longer injunction and because Tyrone wouldn’t consent to any further extension of the injunction that had governed his actions for three years.

Justice Kiefel, in the High Court’s first judgment of 2017, addressed the issue of who should decide whether to grant an injunction pending a High Court special leave application: the court being appealed from, or the High Court? Continue reading

Cashflow is the ‘Lifeblood’ of the Construction Industry: Has the High Court Applied a Tourniquet? Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd

By Matthew Bell

Southern Han Case Page

The December solstice of 2016 was celebrated in diverse ways around the world. At Stonehenge, druids and pagans greeted the mid-winter dawn. In Australia, construction lawyers were digesting the first High Court judgment on the Building and Construction Industry Security of Payment Act 1999 (NSW): Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd [2016] HCA 52.

The Court (Kiefel, Bell, Gageler, Keane and Gordon JJ in joint judgment) confirmed that the existence of a Reference Date under a Construction Contract is a precondition to the making of a valid Payment Claim (the capitalised terms are defined under the Act — more on that shortly). In doing so, the Court overturned the decision of the NSW Court of Appeal ([2015] NSWCA 288), effectively restoring the declaration by Ball J at trial ([2015] NSWSC 502) that the adjudicator had no jurisdiction to make a determination under the Act on a purported payment claim.

Ball J’s conclusion rested upon his Honour’s interpretation of the contract used here (AS4000-1997, a widely-used, construct-only form of construction contract) as having exhausted its capacity to generate ‘Reference Dates’ (which trigger the right to make a payment claim under the Act). This was based on alternate hypotheses: either the contract had been terminated for repudiation, or (if the contract remained on foot) the ‘show cause’ procedure then in effect suspended the right to claim payment.

The judgment is on a narrow point, but has wider significance. This is because the NSW Act has, as was noted by Senior Counsel for the appellants, Continue reading

RP v The Queen

The High Court has allowed an appeal against a decision of the New South Wales Court of Criminal Appeal on the presumption of lack of criminal responsibility by offenders under 14 years of age. The appellant was 11 to 12 years old when he allegedly sexually abused his younger brother on two occasions. A child offender under 14 years old is presumed to not be responsible for his or her crimes, though this presumption can be rebutted by evidence that the offender was aware that the conduct was seriously wrong, as distinct from an act of ‘mere naughtiness or mischief’ (see NSWCCA at [34]). The NSWCCA unanimously upheld the trial judge’s ruling that the presumption was rebutted by evidence that the appellant Continue reading

News: French Court averaged 50 substantive judgments per year

The High Court’s 2015/2016 annual report states (as every annual report has for the past decade) that:

the numbers of Full Court hearings and decisions in 2015–16 were comparable with averages for both during the past 10 years.

However, as noted here last year, the number of published judgments in 2014 (49) and 2015 (53)  were among the fifteen lowest in the High Court’s history. With three judgments released today, 2016 equals 2015’s number of published judgments.

As previously noted, counting High Court judgments is not straightforward, because of changing practices in judgment publication (notably past courts’ willingness to issue lengthy substantive judgments on special leave applications.) The judgments published by the High Court typically include some minor judgements – single judge decisions and interlocutory rulings – that seemingly reflect publishing preferences in individual judges. This year, there were four such judgments, leaving 49 substantive judgments in 2016, one more than each of the last two years. The final counts of substantive judgments for the French Court are: Continue reading

ElecNet (Aust) Pty Ltd (as Trustee for the Electrical Industry Severance Scheme) v Commissioner of Taxation

The High Court has dismissed an appeal against a decision of the Full Federal Court on the meaning of ‘unit trusts’ for tax purposes. The appellant is the trustee of the Electrical Industry Severance Scheme Trust (the ‘EISS trust’), which protects redundancy or insolvency pay entitlements of employees in the electrical trades industry by requiring employers to pay money into a fund, from which payments could be made to employees following termination of their employment. The appellant sought a ruling from the respondent that the EISS trust was a unit trust for the purposes of div 6C of the Income Tax Assessment Act 1936 (Cth), and the Commissioner ruled that it was not a unit trust. While div 6C does not define ‘unit trust’ it does define ‘unit, in relation to a prescribed trust estate, includes a beneficial interest, however described, in any of the income or property of the trust estate’. On appeal to the Federal Court, Davies J held that the EISS trust was a Continue reading

Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd

Matthew Bell, ‘Cashflow is the “Lifeblood” of the Construction Industry: Has the High Court Applied a Torniquet? Southen Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd‘ (23 December 2016).

The High Court has allowed an appeal against a decision of the New South Wales Court of Appeal on jurisdictional error in the context of a building commission adjudication over a construction contract and ‘reference date’ requirements. Following the collapse of a building agreement between the parties, an adjudicator ordered the appellant company to make payments to the respondent builder in recognition of progress on the works. Section 8(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) provides that ‘[o]n and from each reference date under a construction contract’, Continue reading

News: Three new special leave grants round off 2016

Just when it seemed that 2016 couldn’t get any worse, the High Court’s website went out of action last weekend from late Friday afternoon until mid-Sunday. The High Court has not provided any explanation to date of the outage, either over the weekend – the Court presently does not use social media tools that would suit such notice – or since. That means that Australians (other than those who happened to be at the High Court’s Sydney or Canberra registries on Friday morning) had to wait until Monday afternoon to discover what special leave applications were granted or dismissed in the Court’s last oral hearings for the year. Applications addressed in those hearings include three matters of broad public interest: an appeal by The Age newspaper concerning an order that journalists reveal their sources to a defamation matter; a dispute in Nauru’s Supreme Court concerning its jurisdiction to hear appeals in refugee matters; and challenges to ICAC findings holding that developers committed corrupt conduct by allegedly concealing the involvement of Eddie Obeid in their proposals.

As it turns out, leave was not granted in any of those matters. Rather, yesterday afternoon, the Court’s  website revealed that three different applications were granted at the oral hearings (the only three grants in December.) The three matters that will be heard by the Kiefel Court next year are: Continue reading

News: High Court forms must now include the Queen’s name

The  High Court Amendment (2016 Measures No. 2) Rules 2016 were published on December 6th this year and took effect on December 9th. The amendments, presumably the final ones from the French Court, include new forms for arrest warrants, committal warrants, subpoenas and writs. For the first time since 2004, those forms must include the following words:

ELIZABETH THE SECOND, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth

These are the exact same words that were once required by the 2004 rules’ predecessor. As noted here, these amendments were prompted by a question from Senator Rod Culleton to Attorney-General Brandis, who pointed out that the previous version of the rules did not require that such forms comply with  s. 33 of the High Court of Australia Act 1979:

All writs, commissions and process issued from the High Court shall be:
(a) in the name of the Queen…

Even if Senator Culleton’s election is held to have been invalid by the Court of Disputed Returns, he will have had an impact on the statute book and the High Court that is rare indeed for a minor party Senator.

Roll Up, Roll Up … for A Transformational Journey into the Australian Constitution!

By Martin Clark

David Foster Wallace’s journey into voter apathy in the United States following John McCain’s 2000 Presidential campaign around the country led him to this profound insight:

it’s hard to get good answers to why Young Voters are so uninterested in politics. This is probably because it’s next to impossible to get someone to think hard about why he’s [sic] not interested in something. The boredom itself preempts the inquiry; the fact of the feeling’s enough.

Picking over the political ‘upsets’ that fixed the attention of the Anglophone western world in 2016 — the Brexit referendum and the election of Donald J Trump to the Presidency of the United States — plenty of commentators read these as ‘anti-establishment’ political movements. Voters in the UK and the US sought to vent their frustration at ‘political elites’. Formerly uninterested in politics or bored with politicians, these voters suddenly thought ‘hard’ and did the ‘next to impossible’: got out to vote in support of the movement or candidate promising to rock the establishment to its core … and in both instances there is already plenty of evidence showing a ‘betrayal’ is not far off.

What could any of this have to do with Australia’s High Court? Half a world away, the centrepiece of our legal establishment enjoys an extremely high public confidence rating. Unlike the Supreme Court of the United States (or even, given the recent Brexit, cases the United Kingdom Supreme Court), the High Court is firmly insulated against politics. Its cases, reasoning and appointments are always (said to be) about questions of law and legal expertise, not politics. This year’s cases on voting procedures, parliamentary retirement entitlements, and senate eligibility remind us that even when the Court touches on the overtly political, it is guided — as it (says it) must be — by legalism. (Certainly, that hasn’t stopped it from being the stage for often dramatic political protests (here and here).)

But really, what is all this preamble about boredom and the ‘establishment’, politics and legalism in aid of? Well, the Constitution Education Fund Australia has just announced a new journey: a major new interactive multimedia exhibit about the Constitution which will be installed in the High Court itself. Continue reading

The High Court on Sentencing Domestic Violence: Kilic v The Queen

By Tamara Hamilton-Noy

Kilic Case Page

In Victoria in 2014, there were 32 victims of family and domestic violence-related homicide (5 per million persons) and 1,321 victims of family and domestic violence-related sexual assault offences (23 victims per 100,000 persons). There were seven times as many female victims as male victims in Victoria of family and domestic violence-related sexual assault.

On 27 July 2014 a young woman drove up to the home of 22 year old Yavaz Kilic with a group of friends. She had been in a relationship with Kilic and was 12 weeks pregnant to him. The relationship was later described as having been controlling and ruled by his paranoia. Kilic had commenced using drugs at the age of 13 and had had a period of homelessness at 18 years of age. He had worked previously as a labourer. He had previous convictions for weapons related charges, but no violence related priors. As of 27 July 2014 he was reported to have been using ice for several days.

The woman and her friend, Mr B, went to get out of the car at which time Kilic ran across the road in an aggressive manner, holding a samurai sword above his shoulders and pointing it at Mr B. He shoved the sword through the open window towards the steering wheel and yelled at the people in the car, including yelling at the young woman, “You’re just a fucking slut”.

Mr B followed Kilic into his front yard and Kilic filled a bottle of water and swung the sword at it, stating ‘This would take some cunt’s head off’. Mr B followed Kilic into the house and hid the sword inside the house. While Mr B went to the bathroom, Kilic went Continue reading

News: French CJ’s last words

Quote

In Wednesday’s ACCC v Flight Centre Travel Group Limited [2016] HCA 49, concerning whether Flight Centre breached competition laws by seeking a deal with some airlines not to undercut its prices, French CJ’s separate judgment concludes:

In my opinion, Flight Centre was not in competition, in any relevant market, with the airlines for which it sold tickets. Its proposals with respect to the pricing practices of its principals were not proposals offered by it as their competitor but as their agent. I would dismiss the appeal with costs.

These are very likely French CJ’s last words in a court judgment. He did participate in a second judgment on Wednesday, seconds after the ACCC one, but that was a joint judgment with (as is often the case) Kiefel, Bell & Keane JJ, and (as is always the case) no indication of who wrote it. (Austlii’s earliest judgment by French J appears to be this one.) As French CJ has no more reserved judgments (having stopped hearing cases in early October), his only possible remaining judgments would be chambers or special leave matters. His remaining duties on the Court until his resignation on 29th January next year will be almost entirely administrative or ceremonial.

Wednesday’s ACCC judgment was unusual for the outgoing Chief Justice in another respect. Continue reading

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act

The High Court has dismissed an appeal against a decision of the New South Wales Court of Appeal on a land rights claim over a former prison. Under s 36(1) of the Aboriginal Land Rights Act 1983 (NSW), Crown lands that may be subject to a land rights claim must not be lawfully ‘occupied’. After Berrima Gaol was decommissioned in 2011, the Crown Lands Minister rejected the appellant’s claim over the land on the basis that while the prison was no longer operating, the land and buildings were still occupied by Corrective Services NSW which guarded and maintained them, and used the site for working visits by community service order workers. The NSWCA held that the land was still occupied on the basis of regular use by the community service order workers, that no statutory authorisation was necessary for that occupation to be lawful, Continue reading

Australian Competition and Consumer Commission v Flight Centre Travel Group Ltd

The High Court has allowed an appeal against a decision of the Full Federal Court on the applicability of competition law to the airline booking industry. Flight Centre and several airlines reached an agreement under which the airlines would not offer fare prices directly to potential passengers that were lower than the prices offered by Flight Centre. The ACCC alleged that this constituted a breach of ss 45 and 45A of the Competition and Consumer Act 2010 (Cth). The trial judge agreed that the airlines and Flight Centre were in competition in a market to supply booking services to consumers and distribution services to airlines, and that the arrangements aimed to set a floor under the price of flights offered for sale and thus maintained or controlled the price of Flight Centre’s booking services. The FCAFC found in favour of Flight Centre, holding that there was no separate market for booking or distribution services (see at [168]), that Flight Centre operated within the market Continue reading

News: An Interruption in the Court of Disputed Returns

This week, the United Kingdom’s and Australia’s apex courts each held hearings that touch on recent votes in each country. The UK Supreme Court’s Brexit case (on whether triggering the UK’s exit from the EU is a matter for parliament or just the executive) is broadcast live on the Court’s website. The High Court’s Culleton hearing (where the Court of Disputed Returns will determine whether the WA One Nation Senator was disqualified by a since annulled conviction for larceny) can now be viewed on the Court’s AV archive, albeit not live. One difference that seemingly follows from this is that the video record of the Court may be incomplete. A possible example is an incident at the hearing described in The Guardian as follows:

The high court hearing into Rodney Culleton’s eligibility as a senator was interrupted by a One Nation member who labelled it a “star chamber” and “kangaroo court” after Culleton lost a bid for an adjournment. The dramatic interjection was made by member John Wilson, without Culleton’s knowledge. The senator’s chief of staff, Margaret Menzel, then remarked “he’s right” and his wife Ioanna Culleton said “at least someone has the guts to stand up [and say it]” as Wilson was asked to leave the court room.

I have been unable to locate this incident on the video recording of the hearing that appeared on the High Court’s website yesterday afternoon. Interestingly, though, there appears to be an unexplained, and unsignposted, break in the recording just after the 36 minute mark, immediately after Kiefel J says the words ‘We will now proceed to hear the substantive argument.’ You can see it most clearly by watching Keane J’s hands.

As noted in an earlier post, interruptions in apex court proceedings, usually as a form of political protest, are nothing new. However, video recording of hearings is a recent phenomenon in the High Court. If it is correct that the interruption and other events described in the media indeed occurred in the above break, then it appears that the Court may have an unannounced policy to remove these events from thevideo  record.  Continue reading

Simic v New South Wales Land and Housing Corporation

The High Court has allowed an appeal against a decision of the New South Wales Court of Appeal on the construction of a bank guarantee contract. The appellant is the guarantor of a building company that tendered for a building contract from the respondent housing corporation. As part of that contract, the appellant provided security in the form of a bank guarantee contract, authorising the transfer of approximately $140,000 to the respondent if requested by the respondent. The contract was prepared with multiple errors, including mistakes in the name of the respondent corporation and its ABN, causing the bank to refuse to pay the amount when the respondent made the request. The NSWCA held that while the principle of strict compliance with the terms of the contract was a requirement of performance rather than construction, the principle of autonomy (that letters of credit and guarantees should be construed independently from the underlying agreements that lead to their creation) must form part of the process of construction. The Continue reading

The Queen v Kilic

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on sentencing guidelines and ‘manifestly excessive’ sentences. The respondent pleaded guilty to intentionally causing serious injury after he doused his partner in petrol and set her alight. The offence carried a maximum penalty of 20 years, and the sentencing judge sentenced the respondent to 15 years imprisonment. The VSCA held that the sentence significantly exceeded those previously given for convictions that involved more horrific assaults and where defendants did not show remorse, were young, or made an early guilty plea (as had all occurred here), and reduced it to 10 years and 10 months imprisonment. Appealing the VSCA decision to the High Court, the Crown contended that the original sentence cannot be manifestly excessive if it falls into the ‘worst case’ category for the offending, and that the VSCA erred in its approach to evaluating ‘current sentencing practices’ as applied by the sentencing judge.

The Court (Bell, Gageler, Keane, Nettle and Gordon JJ) unanimously allowed the Crown’s appeal, holding that the Court of Appeal erred in its approach to ‘current sentencing practices’ when it held that the differences between the sentencing judge’s conclusions and those in other cases warranted the conclusion that the sentencing judge imposed a manifestly excessive sentence.

The Court first held that the VSCA erred in describing the offence as falling within the ‘worst category’ of cases of intentionally causing serious injury. Given that the ‘worst category’ means an instance of an offence which warrants the Continue reading

News: Congratulations James Edelman, new High Court Judge

I was particularly delighted to hear of James Edelman’s recent appointment to the High Court of Australia, as he is a friend and former academic colleague. Indeed, his book based on his PhD thesis, Gain-Based Damages: Contract, Tort, Equity and Intellectual Property was the inspiration for my own PhD thesis.

Edelman J’s list of achievements are impressive: degrees in law, economics and commerce, a Rhodes Scholarship, a BCL and a DPhil from Oxford, a Professorship at Keble College, Oxford, followed by an appointment to the Supreme Court of Western Australia in 2011 and an appointment to the Federal Court in Queensland in 2015. He has numerous publications in the area of private law, and a keen interest in theoretical scholarship.

We extend our warmest congratulations to him and to our new Chief Justice, Susan Kiefel.

News: The Kiefel Court

Today’s news, as welcome as it is unsurprising, officially confirms that the next High Court will be the Kiefel Court. Here are some features of the new Court that will commence on 30th January 2017:

  • Susan Kiefel, age 63, appointed by Howard government until 17th January 2024
  • Virginia Bell, age 65, appointed by Rudd government until 7th March 2021
  • Stephen Gageler, age 58, appointed by Gillard government until 5th July 2028
  • Patrick Keane, age 64, appointed by Gillard government until 26th October 2022
  • Geoffrey Nettle, age 66, appointed by Abbott government until 2nd December 2020
  • Michelle Gordon age 52, appointed by Abbott government until 19th November 2034
  • James Edelman, age 43, appointed by Turnbull government until 9th January 2044

With Edelman J ( a Supreme Court judge later Federal Court judge, from WA) replacing French CJ (previously a Federal Court judge from WA, appointed by the Howard government), the Court’s diversity in appointing party, gender, geography (alas for South Australia) and prior positions remains unchanged. However, Edelman J is the Court’s first appointee born in the 1970s, just as Gordon J before him was the Court’s first appointee born in the 1960s.

Assuming no early resignations, these are the last new appointments to the High Court for four years. The next (or so) Prime Minister  will then have the opportunity to replace Nettle J and Bell J in quick succession in 2020/1, followed by Keane J in 2022. If Kiefel CJ stays for her full term, then the next most senior judges will be Gageler J, Gordon J and Edelman J. As  Gageler J will have only four years remaining on the Court (although Brennan CJ was appointed in similar circumstances), a Gordon Court from 2024-2034 and an Edelman Court from 2034-2044 would be a solid bet.

News: Bell Group case led to Attorney-General and Solicitor-General rift

It is no secret that relations between Attorney-General George Brandis and Solicitor-General Justin Gleeson were “irretrievably broken” when Gleeson resigned as Solicitor-General in October this year. However, it has now been revealed that there may have been a High Court connection to the rift: it has been reported today that the ever-sprawling, never-ending Bell Group case may have led to the difficulties between the pair.

As I noted earlier this year, the Bell Group case looked to have settled in 2013, but the Western Australian government’s attempt to distribute the settlement funds via a statutory scheme was struck down by the High Court in May in Bell Group N.V. (in liquidation) v Western Australia [2016] HCA 21. The ATO was a major creditor who would have lost out had the Western Australian legislation been held to be valid.

The West Australian reports that Brandis had apparently made a deal with the Western Australian government that the legislation would not be challenged, and that Brandis instructed Gleeson not to run a particular argument in the May case. It was reportedly Gleeson’s refusal to comply with this which led to the rift. Continue reading

News: Ten new grants of special leave

Senators’ queries and qualifications aside, the High Court is having a quiet month, perhaps in part because some pending matters have been shifted to February when the Court will again have seven functioning judges. The Court finished off all of this month’s full court hearings in a single week and also announced orders settling or partly settling matters where special leave had been granted (in cases concerning migration, sentencing and advocates’ immunity.) At the same time, there has been a bumper crop of special leave grants this month, two on the papers last week, a spectacular five out of six applications granted in Wednesday’s oral hearing and three at today’s oral hearing.

All up, ten new cases will eventually be heard on appeal: Continue reading

News: Senator Culleton says he will not attend Court of Disputed Returns hearing

A week ago, the High Court published notices on its webpage that it will sit as the Court of Disputed Returns in relation to Senators Bob Day and Rob Culleton. The notices state:

Any person who desires to place any evidence before or make any submission to the Court should apply to the Court by email addressed to Senate.Reference.[Day/Culleton]@hcourt.gov.au by 12:00noon (AEDT) on Thursday 17 November 2016 setting out the reasons why they should be granted leave to appear before the Court. The Court may determine such application on the papers or invite the person to appear and make oral submissions to the Court in Canberra (or by video-link if required) at 11:30am (AEDT) on Monday 21 November 2016.

The apparent purpose of this hearing is to determine who will be a party to the Senate’s reference of these matters, in accordance with s378 of the Commonwealth Electoral Act:

The Court of Disputed Returns may allow any person who in the opinion of the Court is interested in the determination of any question referred to it under this Part to be heard on the hearing of the reference, or may direct notice of the reference to be served on any person, and any person so allowed to be heard or so directed to be served shall be deemed to be a party to the reference.

However, The Guardian reports that Senator Culleton will not attend, physically at least:

On Wednesday Culleton told Guardian Australia he did not intend to appear, nor to send a legal representative, but he would represent himself “in spirit” at the directions hearing.

Presumably, though, the Court of Disputed Returns will ‘direct notice of the reference to be served on’ Senator Culleton, who will then be deemed to be a party.

Senator Culleton lists several reasons for not attending on Monday. Continue reading

Bywater Investments Ltd v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation

The High Court has heard two appeal against a decision of the Full Federal Court on corporate residency for the purposes of tax assessments. Section 6(1) of the Income Tax Assessment Act 1936 (Cth) provides that a company is resident in Australia for tax purposes if it is either incorporated in Australia or if it carries on business in Australia and has either its central management and control in Australia or its voting power controlled by shareholders who are Australian residents. The appellant companies were all incorporated outside of Australia and ultimately owned by two Cayman Islands companies. Borgas, a businessman based in Switzerland, was the sole shareholder in the Cayman Islands holding companies and a director of each of the appellant companies, and was presented as the owner of the companies. The Commissioner challenged the companies’ claims that they were not residents in Australia for tax purposes. The primary judge found that Gould, a Sydney-based accountant, was the true owner of one of the Cayman Island companies and its appointor, holding the power to appoint Continue reading

Castle v The Queen; Bucca v The Queen

The High Court has allowed an appeal from the Full Court of the South Australian Supreme Court on admissions and discreditable conduct evidence. Castle and Bucca were convicted by a jury of murdering McDonald, Castle’s former partner, who was shot while sitting in a car driven by Castle. The prosecution’s case was that Castle and Bucca arranged the shooting, with Bucca hiding in the back seat. The defence for Castle contended that the shooter was another person, Gange, who had crept into the car through the car boot, unbeknownst to Castle, and shot McDonald. At trial Pascoe, an associate of Castle and Bucca, gave evidence that Bucca had shown handguns to her father months before the shooting, and that Bucca had said to her father after the shooting that ‘he didn’t mean to do it’. M gave evidence of a conversation between Castle and Bucca on the night of the shooting planning to meet and confront McDonald, and that while Gange had left that night he returned home before before the shooting occurred. Telephone tower records suggest that Bucca and Castle were at the scene of the shooting, Continue reading

Van Ryn v The Queen

The High Court has made orders by consent between the parties, allowing an appeal against a decision of the New South Wales Court of Criminal Appeal on the sentencing of paedophiles. The defendant pled guilty to a series of child sexual assaults committed between 2004 and 2014, and was sentenced in the New South Wales District Court to an aggregate term of 13 years imprisonment. The Crown appealed against the sentence, contending that it was manifestly inadequate, as demonstrated by errors in the judge’s assessment of the sentence. The NSWCCA allowed the Crown’s appeal, concluding that the sentencing judge did make a number of errors that may reflect the inadequacy, specifically in making no finding on the objective seriousness of the offending, and not properly appreciating the importance of deterrence, making the sentence inadequate. The NSWCCA also noted that even if those errors did not ’cause’ the inadequacy, the sentence was plainly unjust, Continue reading

AAR15 v Minister for Immigration and Border Protection

The High Court has made orders by consent between the parties, allowing an appeal against a decision of the Federal Court on fact findings on the current status of ethnic conflicts. The applicant, from the Democratic Republic of Congo, sought refugee protection on the basis of his membership of the Kasai-Luba ethnic group, which he alleged was subject to persecution by the Katangan-Lunda group. The Administrative Appeals Tribunal concluded that on the country information before it the applicant did not face a real chance of serious harm due to his ethnicity, but cited only a 2006 International Crisis Group report which referred only to ‘tensions’, and did not cite or refer to a number of later reports from various bodies which illustrated risks of genocide, war crimes and ongoing ethnic conflict. A single-judge Federal Court rejected the Continue reading

Timbercorp Finance Pty Ltd (in liq) v Collins; Timbercorp Finance Pty Ltd (in liq) v Tomes

The High Court has dismissed two appeals against a decision of the Victorian Court of Appeal on the operation of Anshun estoppels — which prevents a party asserting a claim or raising an issue of fact or law if that claim/issue was so connected to the subject matter of an earlier proceeding that it was unreasonable in the context of that first proceeding to not have raised it then — in the context of individual members of an unsuccessful group proceeding. (On the statutory scheme for group proceedings see Supreme Court Act 1986 (Vic) pt 4A.) The appellants are liquidators of companies that were part of the Timbercorp Group and were incorporated to provide loans to investors in forestry projects. The respondents applied for these loans between in 2008, became part of a group proceeding brought by investors after Timbercorp collapsed in 2009. When the group proceeding was rejected, Continue reading

Comcare v Martin

The High Court has allowed an appeal against a decision of the Full Federal Court on worker’s compensation for the aggravation of a mental condition as a result of reasonable administrative action. After the applicant was bullied and harassed by her supervisor and later denied a permanent position under a different supervisor by a panel that included her current and prospective supervisor, she was diagnosed with an ‘adjustment disorder’ that rendered her unfit for work. Sections 5A and 5B of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provide that Continue reading

Blank v Commissioner of Taxation

The High Court has dismissed an appeal from a judgment of the Full Federal Court on the taxation of income from employee profit participation arrangements. The appellant, a senior executive at a commodities firm, received a salary package that included a profit participation arrangement which paid him a lump sum of $160mil payable in several instalments, payable after he left his role (the Incentive Profit Participation Plan or ‘IPPA’). The international holding company was incorporated in Switzerland, and the IPPA operated in the form of a Genussscheine or ‘profit sharing certificate’. The central issue was whether this amount was ordinary income and thus part of the appellant’s assessable income under s 6-5 of the Income Tax Assessment Act 1997 (Cth). A majority of the FCAFC held that it was, and rejected the appellant’s claims that the rights under the IPPAs were a Continue reading

News: Delay anticipated in High Court challenge to Senators

Eagle eyed readers of the UK Supreme Court’s twitter page will notice a couple of contrasts to the High Court of Australia:

 

First, the United Kingdom’s apex court is on Twitter; Australia’s High Court is yet to enter the modern world of social media. Second, the Court’s twitter stream actually replies to public queries, including confirming @aforlonehope’s query that the coming 11-judge Brexit hearing will make UK procedural history. Third, up until now, the UK’s apex court has never held a hearing that involves all of the courts’ judges.

While most major hearings in Australia’s High Court involve five of the Court’s seven judges, the Court typically sits ‘en banc’ – i.e. with all of its seven judges – for all constitutional cases and occasionally for other significant cases. Continue reading

News: Senator Culleton’s ‘dark cloud hanging over the High Court’

Those interested in federal politics have spent the past couple of days pondering the possibility that two senators elected at the recent election were disqualified on various grounds and the possible outcomes of proceedings in the High Court potentially raising those matters. One of those senators, One Nation’s Ron Culleton, gave an interview yesterday, which reportedly included the following statement:

Under Section 33 of the constitution, writs need to be named in the name of the Queen and that clearly hasn’t been happening. So when the media jumps on this and say there’s a dark cloud myself, I would say there is a dark cloud hanging over the High Court. Until the answer comes back (advice from the Senate), I’m not sure I’m going to participate in any High Court jurisdiction. If I do, I will represent myself.

Those following up on this statement would soon discover that s. 33 of the Constitution refers to writs, but not ones from the High Court:

Whenever a vacancy happens in the House of Representatives, the Speaker shall issue his writ for the election of a new member, or if there is no Speaker or if he is absent from the Commonwealth the Governor-General in Council may issue the writ.

Section 33 is actually concerned with casual vacancies in the House of Representatives (which are resolved by by-election.) Vacancies in Senator Culleton’s upper house are dealt with by s. 15 of the Constitution, which makes no mention of writs (as such vacancies are filled by state parliaments.) Neither constitutional provision includes any requirement that process should be in the name of the Queen.

However, it is likely that Senator Culleton was actually referring to s. 33, not of the Constitution, but of the High Court of Australia Act 1979:

All writs, commissions and process issued from the High Court shall be:
(a) in the name of the Queen;
(b) under the seal of the Court…; and
(c) signed by… the Chief Executive and Principal Registrar…

In fact, Senator Culleton’s first parliamentary question, a week after an action was filed against him, concerned this very section: Continue reading

News: Vic CJ proposes Australian Court of Appeal

At this year’s national conference of the Australian Bar Association, Victorian Chief Justice Marilyn Warren, after outlining the success of Victoria’s Court of Appeal in finalising civil appeals, provocatively added:

Now taking the local level of excellence, of course it extends across the national superior courts. So what opportunities arise to market that collective excellence? An opportunity that lies before all of us as the collective superior courts of Australia is to contemplate a national appellate court.

Of course, Australia already has a national appellate court, the High Court of Australia, which, unlike the Supreme Court of the United States, can hear appeals from any Australian court on any subject. Why, therefore, call for a second national appellate court? Warren CJ gives three related reasons. Continue reading

‘Parliamentary Perks’ as Constitutionally Protected Property?: Cunningham v Commonwealth

By Dr Lael Weis

Cunningham Case Page

How could the same constitutional provision that Darryl Kerrigan famously invoked to protect his ‘castle’ be relied upon by former Members of Parliament to protect ‘gratuitous’ — in the sense that they go above and beyond entitlements based on superannuation contributions — retirement benefits against any possible future reductions? As news coverage of the High Court’s recent decision in Cunningham v Commonwealth [2016] HCA suggests, the very contention is offensive to public sensibilities.

The constitutional provision in question, s 51(xxxi), protects individuals from the arbitrary acquisition of property by requiring that the acquisition of property by the Commonwealth be ‘on just terms’. Yet it seems highly counterintuitive to think of gratuitous retirement benefits — funded by taxpayer money, no less — as ‘property’ that the Constitution affords protection to. As one opinion piece scoffed, ‘you could hardly be blamed for imagining a snort of derision from the Bench at the implication that the [former parliamentarians] believed it was their own money they were fighting for.’ Surely they’re dreamin’ … or are they?

In this blog post I will briefly comment on the seemingly odd character of the constitutional challenge, explaining why Cunningham is not in fact that odd as far as s 51(xxxi) cases go. I will then offer a few remarks on what the commonplace character of challenges of this kind tells us about the broader challenges that confront the High Court’s jurisprudence in this area, and why the Court didn’t exactly tell the plaintiffs to ‘dream on’.

‘Property’ protected by the constitutional guarantee

In reality, cases like Darryl Kerrigan’s — which involve straightforward real property interests — are atypical for Australian constitutional property law. Australian constitutional property law much more frequently Continue reading

Greyhounds, Michael McHugh and the Integrity of the Judiciary

By Gabrielle Appleby and Alysia Blackham

On 16 June 2016, retired High Court judge, the Hon Michael McHugh AC QC delivered his report as Commissioner of a Special Commission of Inquiry into the Greyhound Racing Industry in NSW. The report found ‘overwhelming evidence of systemic animal cruelty, including mass greyhound killings and live baiting’, and concluded that the industry had ‘fundamental animal welfare issues, integrity and governance failings that can not be remedied.’ Relying on the report, the NSW Government moved to shut down the greyhound racing industry, with legislation introduced to effect a full closure by 1 July 2017. In a move described by the NSW Opposition as the ‘mother of all backflips’, the NSW Premier has now confirmed that greyhound racing will not be banned after all, with ‘tough penalties’ to be introduced to ensure animal welfare instead.

Banning greyhound racing is a politically and emotionally charged issue. Prior to the government’s backflip, the NSW Greyhound Racing Industry Alliance criticised the Special Commission of Inquiry report as being ‘biased and seriously flawed’. It argued that racers and trainers were denied procedural fairness. There were allegations that the report was a ‘stitch up’, with the result predetermined by NSW Premier Mike Baird. The greyhound industry even brought a claim in the NSW Supreme Court, seeking to have the report declared invalid. Others applauded the ban, and saw Continue reading

News: Another NSW-Vic schism amongst special leave grants

It is always hard to predict the outcome of special leave applications, but one category of appeal comes close to a certainty: cases where Australian courts have divided on the meaning of a single, important statute. Earlier this year, the High Court (in a divided decision of its own) entered into a key dispute between the NSW and Victorian courts about the meaning of Australia’s ‘uniform’ evidence law, and last month the Court took on a case dealing with a second dispute between those courts about that law. Last week, the Victorian Court of Appeal decided not to follow the NSW Court of Criminal Appeal on the precise role of guilty pleas in federal sentencing, guaranteeing that the issue will reach the High Court soon. This month, the sole grant of leave ‘on the papers‘ was a pair of cases where the NSW and Victorian courts reached different views on the fault element of federal drug offences.

The Court’s new process continues to be unpredictable. For the first time since the process began, the Court held two oral hearings – these were held, unusually, in separate weeks, and yielded five more special leave grants. The Court’s written dispositions refusing leave continue to be very uninformative. One exception was the Court’s refusal of a NSW criminal appeal, which included the Court’s view that the NSW Court of Criminal Appeal was right to apply the High Court’s House ruling (requiring an error of law before a decision can be reviewed) to a trial judge decision; alas, the NSW case is (for now) suppressed, so the public is none the wiser about the nature of this ruling. Chief Justice French continues to play no role in the Court’s written dispositions, but participated in (at least) the first oral hearing.

The six matters where leave was granted are appeals from the following decisions: Continue reading

Ainsworth v Albrecht

The High Court has allowed an appeal against a decision of the Queensland Court of Appeal relating to the alteration of the rights of lot owners to common property in a community titles scheme. The appellants and first respondent are owners of lots in the community title scheme at Viridian Noosa Residences. When the first respondent sought to amalgamate two balconies on his lot, which would require his exclusive use of the common property airspace between the balconies, the body corporate rejected the request. Following a ruling by an adjudicator, which was overturned by QCAT, the QCA restored the adjudicator’s initial ruling, holding that the adjudicator’s role was not limited to asking whether the present appellants’ objections (and those of the architect) were reasonably Continue reading

Cunningham v Commonwealth

The High Court has decided a constitutional matter on the annual allowance payable to retired members of parliament. The plaintiffs, four retired ALP and LNP MPs, challenged the validity of various provisions of statutes relating to retirement allowances and travel benefits (‘Life Gold Passes’) for former parliamentarians and the powers of the Remuneration Tribunal. The plaintiffs contended that those allowances amounted to property rights within the meaning of s 51(xxxi) of the Constitution, and that changes to those provisions and the connected tribunal Continue reading

Prince Alfred College Inc v ADC

The High Court has allowed an appeal against a decision of the Full Court of the South Australian Supreme Court on vicarious liability of a school for an employee’s child sexual abuse offences. While a student at Prince Alfred College, the appellant was sexually assaulted multiple times by a boarding house master, Bain, who was dismissed once the school learned of the abuse, and who had previously been convicted of gross indecency and suspected of abusing students at a previous school. The appellant contended that the school was vicariously liable for Bain’s abuse, and that it was negligent in failing to make proper and adequate inquiries into Bain’s suitability for employment. The SASCFC overturned the trial judge’s decision to dismiss the action, Continue reading

Lyons v Queensland

The High Court has dismissed an appeal against a decision of the Queensland Court of Appeal on whether preventing a deaf person from serving on a jury constitutes discrimination. The appellant, who is deaf, is a proficient lip reader, but requires an Auslan interpreter when communicating with people who do not know Auslan. After being called for jury service, the appellant notified the Deputy Registrar that she required an Auslan interpreter, after which the Deputy Registrar excluded the appellant as a potential juror under s 4(3)(l) of the Jury Act 1995 (Qld) which precludes a person with a ‘physical or mental disability that makes the Continue reading

News: Re-reading Monis v the Queen

The High Court’s judgment, Monis v The Queen [2013] HCA 4, concerns the meaning and validity of the federal government’s ban on offensive postal communications. However, the case is known for many more things: the extremity of the communications sent by the defendants to bereaved families condemning the deceased’s involvement in military operations; the rare evenly divided High Court ruling, upholding the NSW Court of Criminal Appeal’s dismissal of the defendants’ pre-trial challenge to the statute’s constitutionality; Justice Dyson Heydon’s final judgment, quoting Kipling’s My Boy Jack and condemning the implied freedom of political expression as he applied it (one of the ‘great dissents’ nominated in Andrew Lynch’s edited collection); later accusations against the defendants of much more serious crimes; and, finally and most dramatically and sadly, Man Haron Monis’s killing of two people (and his own death) during the siege of Martin Place’s Lindt Cafe.

It is not surprising that the case continues to draw academic attention. The latest instance is an entire book devoted to the case. Continue reading

Murphy v Electoral Commissioner

The High Court has decided a constitutional matter challenging the Commonwealth Parliament’s power to legislate to suspend the processing of claims for enrolments to vote and transfers of enrolments to vote from seven days after the issue of writs for an election. The plaintiffs argued that the principle in Rowe v Electoral Commissioner [2010] HCA 46, in which the Court held that Parliament could not close the rolls on the day the writs are issued, should be extended up to polling day (or, at least, more than the current seven day period), and that the current arrangements contravene the requirements contained in ss 7 and 24 of the Constitution. Central Continue reading

News: “The Castle in reverse”, a coda to DPP (Cth) v Poniatowska

A sad coda to the High Court’s decision in DPP (Cth) v Poniatowska emerged recently. Malgorzata Poniatowska has had two major litigation successes, but each has been followed by setbacks. Her first success, obtaining a historic payout for sexual harassment from her former employers in a building consultancy, was followed by her prosecution for fraud charges for allegedly failing to inform Centrelink of the commissions she earned from that consultancy. Her second success, obtaining a landmark ruling from the High Court quashing her conviction (together with many other social security prosecutions), was soon followed by a negative story on Channel 7’s Today Tonight:

Matt White: First, this evening, a legal landmark in the High Court has forced Centrelink to close a loophole that will allow people to claim welfare they shouldn’t get. An Adelaide woman has shot down Centrelink, avoiding prosecution for claiming $20,000 in single parent benefits she wasn’t entitled to. As David Richardson reports, it’s a case that has shifted the goal post, and sent the government back to the drawing board.
Reporter: Every year, Centrelink goes hunting for cheats – 4 million entitlements reviewed, 640,000 payments reduced, 3400 cases convicted. They don’t miss much – until today.
Warren Moore: Instead of the average person being the winner, you’ve got one woman taking money from the average taxpayer.
Reporter: Meet the cheat who got away: she confessed to defrauding them, then she beat them.

She responded by suing Channel 7 for defamation and, recently, lost, badly.

Continue reading

News: ‘Hey Dad!’ case one of six special leave grants

The High Court’s August round of special leave deliberations has yielded six grants of leave to appeal, following a very slow start:

  • Wednesday 24th: None out of 3 applications granted (on papers, Bell & Keane JJ)
  • Thursday 25th: None out of 7 applications granted (on papers, Nettle & Gordon JJ)
  • Tuesday 30th: None out of 8 applications granted (on papers, Bell & Gageler JJ)
  • Wednesday 31st: None out of 6 applications granted (on papers, Bell & Keane JJ)
  • Thursday 1st: 3 out of 21 applications granted (on papers, 7 Kiefel & Keane JJ (no grants),  7 Kiefel & Nettle JJ (1 grant), 7 Gageler & Gordon JJ (2 grants))
  • Friday 2nd: 3 out of 7 applications granted (oral hearings; 4 Kiefel & Nettle JJ (2 grants), 3 Gageler & Gordon JJ (1 grant)). (There was also a further matter where leave was granted and the appeal allowed, by consent of the parties.)

As usual, French CJ did not decide any special leave matters. As per recent practice, the pairs of judges assigned are no longer always geographically connected. One interesting development is just two pairs of judges were responsible for all six grants (both written and oral), with Gageler  & Gordon JJ responsible for all the criminal grants and Kiefel & Nettle JJ responsible for all the civil grants. There also appears to be a slight increase in information included with the refusals, for example Bell & Gageler JJ’s refusal of leave to Matthew and Elizabeth Pallet, campaigners in favour of medical cannabis, which indicates that their unsuccessful argument was a constitutional challenge to Victoria’s drug laws.

The six cases in which grants were made are: Continue reading

Maritime Union of Australia v Minister for Immigration and Border Protection

The High Court has decided a challenge in its original jurisdiction to two ministerial determinations on ‘offshore resources activity’ and associated vessels, both of which impact on the visa conditions of non-citizens involved in work in various offshore resources industries. The initial challenge was to the Minister’s decisions made in March 2015 under ss 9A(6) and 33(2)(b)(ii) of the Migration Act 1958 (Cth), which respectively empower the Minister to make a determination to define an Continue reading

The Queen v Baden-Clay

The High Court has allowed an appeal against a decision of the QCA to substitute a conviction of murder for one of manslaughter on the basis of the jury’s verdict being reasonable. Baden-Clay was found guilty of the murder of his wife by a jury after a trial at which he gave evidence that he did not fight with her, kill her or dispose of her body. On appeal, the QCA held that while the evidence supported a finding that Baden-Clay had killed his wife, it did not allow it to be satisfied beyond reasonable doubt that he had intended either to kill her or cause her grievous bodily harm, and specifically that the prosecution had not excluded the hypothesis that Baden-Clay had fought with his wife without intent to kill or cause grievous bodily harm and in the course of that Continue reading

NH v DPP; Jakaj v DPP; Zefi v DPP; Stakaj v DPP

The High Court has allowed four appeals from a judgment of the Full Court of the Supreme Court of South Australia on jury procedures. After it emerged that the jury foreman may have misunderstood the trial judge’s question about whether or not ten or more of the jury had voted to find the appellants not guilty of murder, the DPP applied for orders to expunge or quash those verdicts, the judgment of acquittal, and the alternative convictions of manslaughter returned by the jury, and an order for a new trial on the murder charges. A majority of the SASCFC Continue reading

News: Claim Baden-Clay judgment sets a ‘massive precedent’

R v Baden-Clay [2016] HCA 35 is one of the High Court’s most-watched judgments, at least by non-lawyers. Indeed, this morning’s announcement of the Court’s orders in its Canberra premises was live-blogged on at least two Brisbane websites, so readers at home knew of the outcome some 15 minutes before the Court posted its judgment summary on its website. The rather brief proceeding (including other judgments and a hearing in a current appeal) was attended by friends of Baden-Clay’s victim, who told the media:

The law has acknowledged what we, who were closest to her, knew from that very morning Allison went missing — that is — that she was murdered… Today’s decision brings an end to Gerard’s attempts to smear Allison’s name. If some were in doubt as to his true nature, his behaviour after Allison disappeared and during the trial must have removed that doubt.

All of these matters were established by the jury’s verdict, but in Australia’s criminal justice system, appeal courts can sometimes second-guess the jury. In today’s judgment, the High Court firmly second-guessed the Queensland Court of Appeal’s second-guessing and also closed off all regular avenues for future second-guessing in the courts.

But some lawyers commenting on the decision have attributed more to today’s decision. Baden-Clay’s lawyer told the media: Continue reading

Deal v Father Pius Kodakkathanath

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal concerning workplace accident compensation and the connections between tasks and anticipated risks. The appellant, a primary school teacher, was injured after falling from a small step-ladder while removing artwork from a wall at the school. Regulation 3.1.2 of the Occupational Health and Safety Regulations 2007 (Vic) requires that an employer ensure that the risk of a musculoskeletal disorder ‘associated with’ a Continue reading

Sio v The Queen

The High Court has allowed an appeal against a decision of the New South Wales Court of Criminal Appeal on the unreasonableness of a conviction for armed robbery with wounding in light of that conviction’s inconsistency with an acquittal for murder, and on the use of a convicted criminal’s statements to police in convicting an accomplice. At trial, the appellant was acquitted of murder, but convicted of one count of armed robbery with wounding for his role in the robbery of a brothel by his co-offender, who stabbed and killed an employee of the brothel. The co-offender had made a statement to police that alleged the appellant had driven and encouraged him to commit the robbery, but did not testify at the defendant’s trial. The NSWCCA held that Continue reading

Miller v The Queen; Smith v The Queen; Presley v DPP (SA)

The High Court has allowed three appeals against a decision of the South Australian Supreme Court on the extended joint criminal enterprise doctrine of complicity, in the context of a murder conviction. Miller and two others were convicted of murder through extended joint criminal enterprise for their involvement in a confrontation in which a fourth man, Betts, stabbed and killed one of the victims. The SASC rejected Miller’s arguments that the verdict was unsafe because the trial judge had erred in misdirecting the jury by leaving open extended joint criminal enterprise in relation Continue reading

News: High Court rejects challenge to Australia’s common law of complicity

Today, a 6-1 majority of the High Court upheld a 6-1 majority decision of the same court a decade ago to not revisit a unanimous decision of the same court 21 years ago, whose effect is eloquently described in Gageler J’s judgment as follows:

Three men set out to rob a bank. They adopt a simple plan. One of them, the driver, is to wait in the car. The other two are to enter the bank. One is to wave a gun. The other is to put the money in a bag. The two who enter the bank encounter a security guard. The gunman shoots him and he dies. Who of the three is liable for murder? The traditional answer of the common law is that the criminal liability of each depends on the intention of each. The gunman is liable for murder if he shot the security guard intending to cause death or grievous harm…. But what if shooting to kill or cause grievous harm was never part of the plan? The gunman went too far. The gun was not meant to be loaded. The gun was meant only to frighten….  The common law has of late given a different answer. The bagman and driver need not have intended that the gunman would shoot to kill or cause grievous harm as a possible means of carrying out the plan to rob the bank. It is enough for them to be liable for murder that they foresaw the possibility that the gunman would take it upon himself to shoot to kill or cause grievous harm and that they participated in the plan to rob the bank with that foresight.

Whereas the Privy Council and the Supreme Court of the United Kingdom ruled that the ‘common law of late’  was a ‘wrong turn’, the High Court today disagreed. Continue reading

News: Vale James Merralls AM QC

We were deeply saddened at Opinions on High to read of the death of Mr James Merralls, AM QC, editor of the Commonwealth Law Reports for the last forty seven years. The High Court issued a press release celebrating the considerable achievements of Mr Merralls:

Mr Merralls was the editor of the Commonwealth Law Reports, the authorised reports of the decisions of the High Court of Australia, for 47 years commencing in 1969. His unsurpassed period as editor was one of great public service to the Court, the profession and to the administration of justice in Australia. The high standard of his work as editor has been publicly acknowledged by two former Chief Justices of the Court, Sir Anthony Mason and Chief Justice Murray Gleeson. Mr Merralls, who served as an associate to another Chief Justice of this Court Sir Owen Dixon, rose to become a leading member of the Victorian Bar with a national reputation. He will be greatly missed.

I first came to know Mr Merralls after I sat next to him at a conference lunch about four years ago, although I had already known of him by reputation while in practice and when working at the Victorian Supreme Court. He was a polite and humble man who always stopped to say hello when he saw me; a gentleman. To my delight, it became evident that he was a reader of this blog, and he would engage me in debate about posts.

Mr Merralls’ humility did not stop others from recognising his considerable skills, and in 2013, he was awarded an Honorary Doctorate in Laws by the University of Melbourne. Then, in 2014, a Visiting Fellowship in Law was established at Melbourne Law School in Mr Merralls’ honour.

We extend our deepest condolences to Mr Merralls’ wife and children.

Coralling the penalties horse: Paciocco v Australia and New Zealand Banking Group Ltd

Paciocco v ANZ Case Page

It’s said that you can’t shut the stable door after the horse has bolted, but this presumes that there is only one door. If there is a gate on the field around the stable, then the horse can be successfully corralled by shutting the second door, even if the first door is left wide open. And in Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28, the High Court effectively shut a ‘second door’ to prevent the penalties doctrine from escaping. The ‘doors’ are the two questions a court must ask when establishing whether a clause is a penalty and thus void or unenforceable:

  1. Is this a clause to which penalties doctrine applies?
  2. On the facts, is this clause a penalty?

The first door had been left ajar in Andrews v Australia and New Zealand Banking Group Ltd [2012] HCA 30, potentially allowing the penalties doctrine to invalidate (at least partially) a wider range of clauses. This post will focus on the penalties doctrine rather than on the statutory claims of the appellants. It is suggested that after Paciocco there will only be a very small number of cases where plaintiffs can successfully challenge contractual clauses as void or unenforceable penalties. The Court’s findings regarding the question of whether a specific clause was a penalty indicate that the second door has been closed so that only the tiniest crack remains. This will be a relief for organisations such as banks and utility companies as they will have greater latitude to charge late payment fees. And it will provide particular relief for construction contractors, who were concerned that abatement provisions (often used in PPP or Public Private Partnerships) and time bar provisions would be penalties pursuant to Andrews. Continue reading

News: Former High Court judge rules on high profile NZ murder case

In a report published on Tuesday, former Australian High Court judge Ian Callinan found that New Zealander David Bain ‘has not proved on the balance of probabilities that he did not kill his siblings and his parents on the morning of the 20th of June 1994.’ While the judge’s career since leaving the High Court in 2007 has been characterised by government-commissioned reports (as well as sitting on an International Court of Justice dispute between Australia and East Timor), this is surely the first occasion that a retired High Court judge has played the role of judge of fact in a murder case. The Bain case, which turns on the question of whether David Bain shot his parents and three siblings at an isolated farm near their house in Dunedin (for no known motive), or whether Bain’s father committed a murder-suicide (possibly fearing revelations of abuse of his only youngest daughter) while his eldest son was on a paper run, has long divided New Zealanders. Remarkably, it has also been the subject of three controversial interventions by overseas judges. Continue reading

News: 5 new appeals under amended High Court Rules

On 1st July, amendments to the High Court’s rules took effect, including an all new Part 41 on special leave applications. Amongst other changes, the new rules consolidate the application for leave and the summary of argument into a single document (effectively halving the time for lodging all the documents from 56 days to 28 days, and subjecting the totality to a single page limit) and omit existing separate rules on unrepresented applicants and oral arguments in favour of a single rule permitting ‘any 2 justices’ to determine any applicants without an oral hearing.The explanatory memorandum states that ‘[c]onsultations on the changes have taken place with relevant professional organisations and the Special Committee of Solicitors-General.’

One result of the new rules is that there is no longer any public indication as to whether a particular applicant for special leave was represented or unrepresented (as all applications are now determined under new rule 41.08.1.) Rather, all we know is that there were:

  • 32 matters determined without a hearing (2 grants, 30 rejections), heard by Nettle & Gordon JJ (10 matters), Gageler & Gordon JJ (5 matters), Kiefel & Keane JJ (7 matters), Kiefel & Nettle JJ (4 matters) and Bell & Gageler JJ (5 matters), shaking up the previous wholly geographical pairings of judges. French CJ continues to play no role in these determinations.
  • 8 matters determined with a hearing (4 grants, 4 rejections), held in Brisbane (even though none of the matters heard were from Queensland.)

Although the Court’s  2016 calendar describes today is a ‘special leave date’,  no leave applications seem to be listed for determination today. Under the Court’s new approach, dedicated special leave dates are becoming a thing of the past, as, increasingly, are Court sittings in Australia’s two largest cities.

The five judgments that will now be reviewed in the second half of this year by the apex Court are: Continue reading

News: What happened after Smith v WA [2014] HCA 3?

In Smith v WA [2014] HCA 3, the High Court unanimously ordered the Western Australian Court of Appeal to reconsider an appeal by a man who sought to have his conviction for indecent dealing with a child set aside because of a note found in the jury room after the verdict that stated ‘I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote. This has made my ability to perform my duty as a juror on this panel’. The High Court held:

The shadow of injustice cast on the verdict by the note cannot be dismissed on the basis that the note itself and the paucity of evidence of its provenance are insufficient to create a suspicion that, as a matter of fact, the author of the note was overborne in the performance of his duties as a juror.

The Court observed that the identity of the author could be readily discerned, the note’s true meaning could be readily resolved by asking the author, that a wide-ranging and intrusive inquiry would not ‘necessarily’ follow and that the practicality of any inquiry, given the time since the early 2012 trial, is a matter for the Court of Appeal. Nearly two-and-a-half years later, a judgment published today by the WA court reveals how these predictions played out and how the appeal stands (for now.) Continue reading

Paciocco v Australia and New Zealand Banking Group Ltd

Katy Barnett, ‘News: Bank Fees Back to High Court’ (9 April 2015)

The High Court has dismissed an appeal from a decision of the Full Federal Court on the lawfulness of late payment fees for credit card and business bank accounts. The appellant, a business owner and head of the representative proceeding, argued that various late payment fees were penalties and/or unconscionable or unfair and contrary to various provisions Continue reading