We have recently passed the 20 year anniversary of the High Court’s decision in Burnie Port Authority v General Jones Pty Ltd  HCA 13 (24 March 1994). However, the judgment is still subject to debate. Our current exploitation of land for natural resources has encouraged further consideration of this High Court decision. Continue reading
By Dr Lael Weis
Should the state be able to seize ‘all or any’ property ‘owned or controlled by’ persons convicted of multiple drug-related offences, regardless of the connection of that property to the commission of crime?
In a recently decided case, Attorney General (NT) v Emmerson  HCA 13, the High Court upheld Northern Territory criminal forfeiture legislation that authorises exactly that. In upholding the legislation, the Court held that the constitutional requirement that laws for the acquisition of property must be on ‘just terms’ is categorically inapplicable to criminal forfeiture, no matter how harsh, on the basis that it falls within a historically well-established exemption for punitive laws.
Reginald Emmerson’s crimes and possessions
In February 2011 Reginald William Emmerson was charged with two offences: the supply of 18.6646 kilograms of cannabis (with an estimated commercial value between $184,500 and $918,400, depending on the quantity in which it was sold), and the possession of $70,500 obtained from the commission of drug related-offences in the Northern Territory. In conjunction with prior convictions for possession and use (but notably not the supply or sale) of drugs, this made him eligible to have all of his property restrained in anticipation of him becoming eligible to be declared a ‘drug trafficker’ under s 36A of the Misuse of Drugs Act (NT) if he was convicted. The Director of Public Prosecutions applied to restrain his property and, after his conviction for the February 2011 charges, to have the Northern Territory Supreme Court make such a declaration. The sole and direct legal consequence of that declaration was forfeiture of Mr Emmerson’s restrained property to the Territory, pursuant to s 94(1) of the Criminal Property Forfeiture Act (NT). That particular section of the Forfeiture Act provides for the forfeiture of ‘all property … that is owned or effectively controlled by the person’ and ‘all property that was given away by the person, whether before or after the commencement of this Act’ for any person declared a ‘drug trafficker’ under s 36A of the Misuse of Drugs Act.
When Mr Emmerson was ultimately convicted of the February 2011 charges in September of that year, he forfeited property valued in excess of $850,000 to the Northern Territory, including: his home, 12 vehicles (including a ute, a boat and trailer and motorcycles) and bank accounts. All parties accepted that, apart from the $70,050 seized from Mr Emmerson’s most recent offence, the forfeited property had been acquired through legitimate means and had no connection to any criminal offence.
Mr Emmerson challenged the forfeiture on two bases: (1) on the basis that the relevant statutory provisions violated the separation of judicial power under ch III of the Commonwealth Constitution, and (2) on the basis that it effected an acquisition of property that was otherwise than on ‘just terms’ in contravention of S 50(1) of the Northern Territory Self-Government Act 1978 (Cth).
Both challenges were rejected by a 6:1 majority of the High Court (with Gageler J not deciding the ch III issue, and dissenting on the property issue).
With apologies to any Kable fans out there, this entry focuses exclusively on the acquisition of property issue. What follows is a fairly lengthy — and, OK yes, at times indulgent — discussion of some of the ins and outs and twists and turns of constitutional property jurisprudence issues implicated by the Court’s strict adherence to this categorical exemption for forfeiture laws in the Emmerson case.
Those of you who are not particularly interested in going on such a ride are probably better jumping off here, and checking out the judgment summary.
By Dr Katy Barnett
Napoleon Bonaparte said ‘the best way to keep one’s word is not to give it’. Perhaps the defendant in Sidhu v Van Dyke  HCA 19 should have heeded those words, although the case came down not to the fact that Sidhu made and broke a promise, but to the fact that that the plaintiff, Van Dyke, relied upon the promise to her detriment (see the joint judgment at ).
Van Dyke had rented a cottage from Sidhu and his wife, who lived 100 metres away in the main homestead on the property. The property was jointly owned by Sidhu and his wife. Van Dyke and Sidhu commenced a sexual relationship which led to the breakdown of Van Dyke’s marriage. Sidhu told Van Dyke not to worry about getting a property settlement in the divorce, as he would subdivide the land belonging to him and his wife, and give the cottage to Van Dyke. However, when his relationship with Van Dyke ended some eight years later, Sidhu repudiated his earlier promises and Sidhu’s wife refused to consent to a subdivision. The High Court clarified that Australian law did not recognise Lord Denning’s ‘presumption of reliance’ in Greasley v Cooke  1 WLR 1306. In other words, Australian law does not presume reliance on the part of a representee (in this instance Van Dyke), and a representee is still required to make out detrimental reliance. Moreover, the burden of proof to establish detrimental reliance is always on the representee.
The Court unanimously concluded that Van Dyke had made out detrimental reliance and found that Sidhu was estopped from denying his promise to Van Dyke. But as the cottage had burned down and the subdivision had never taken place, Van Dyke was awarded equitable compensation reflecting the value of what she had lost. Continue reading
The High Court has unanimously allowed two appeals against the decision of the NSW Court of Criminal Appeal in Lee v The Queen. Continue reading
By Professor Graham Virgo
Downing College, University of Cambridge
The central premise of C J Sansom’s excellent novel Dominion, is that Britain surrendered to Germany in 1940 and became a satellite state of the Third Reich. Sansom describes a very different world as a consequence of this surrender, but one populated by real people whose lives were put on a very different course by that single momentous event. Such counter-factual, ‘what if?’, history is fascinating. The same game can be played with the law of restitution. What if England had not recognised the law of unjust enrichment, developed from Lord Mansfield’s judgment in Moses v Macferlan (1760) 2 Burr 1005, 97 ER 676 via the misconceived implied contract theory, and retained the equitable principles which originally underpinned restitutionary claims? But that question can be answered without resort to fictional speculation. The answer is to be found in Australia. The most recent decision of the High Court of Australia in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd  HCA 14 reveals the nature of this counter-factual (from an English perspective) anti-unjust enrichment, pro-Equity world (see also Elise Bant’s post here). But when that world is investigated rather more rigorously this law of restitution is, to mix the literary allusions, nothing more than Hans Christian Andersen’s Emperor, albeit one who thinks he is wearing old clothes, but he is actually wearing nothing at all. Continue reading
The High Court today granted special leave to appeal in seven cases as follows: Continue reading
The High Court has unanimously dismissed an appeal against the decision of the NSWCA in Van Dyke v Sidhu. Continue reading
By Professor Adrienne Stone
In 1992, in Australian Capital Television v Commonwealth  HCA 1, the very first case on the constitutional freedom of political communication, the High Court struck down a Commonwealth law prohibiting electronic advertising during election periods. That law had been enacted as a campaign finance reform measure aimed at reducing the reliance of political parties on their donors and thus the High Court’s first application of the freedom of political communication struck a blow to the cause of campaign finance reform in Australia.
In more than twenty years since, however, freedom of political communication cases have focused on other questions such as the protection of political process, the application of defamation law in political debate and the permissibility of insult laws. It was not until late last year, however, that the Court returned to consider the operation of the freedom of political communication to the regulation of electoral finance. In Unions NSW v New South Wales  HCA 58, the Court heard a challenge brought by unions to two sections of the Election Funding, Expenditure and Disclosures Act 1981 (NSW).
What were the challenged laws?
The general scheme of this Act requires disclosure of political donations by political parties, members of parliament, candidates and ‘third party campaigners’ (other persons who incur more than $2000 in electoral expenditure annually). It also caps the amount that can be donated to these persons and the total amount of electoral communication expenditure for State election campaigns. Continue reading
The High Court has unanimously allowed an appeal against the ACT Court of Appeal’s decision to dismiss an appeal against multiple convictions for child sexual offences and rape by a family friend of the complainants. The Court quashed each of the four convictions and a new trial has been ordered for those counts. Continue reading
By Professor Elise Bant
What is the change of position defence and why is it important?
The change of position defence provides nuanced protection to good faith defendants who irreversibly change their position in reliance on receipt of an impugned benefit (such as a mistaken payment) from a plaintiff. Since its recognition a little over two decades ago by the High Court of Australia in David Securities Pty Ltd v Commonwealth Bank of Australia  HCA 48, the change of position defence has assumed a position of great importance within the Australian law of unjust enrichment. Its recognition has enabled courts to take a more principled approach to the operation of unjust factors such as mistake, obviating the need for fine and ultimately insupportable distinctions between different types of mistake that traditionally operated to restrict defendants’ restitutionary liability at the expense of legitimate claims by plaintiffs. Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd  HCA 14 provides a stark illustration of why a change of position defence may be important, as the respondents received mistaken payments from the appellant as a result of the involvement of a third party fraudster. In reliance on those payments, they changed their position in various important ways. Unless they were successful in their pleaded defence, they would be placed in a worse position than they occupied prior to their receipt. In finding in favour of the respondents, the High Court has considered the rationale of the defence, whether it applies to non-reliance based changes of position, whether changes of position must always be valued in terms of specific monetary sums and the interplay between change of position and other defences such estoppel and the agent’s defence of payment over.
How did change of position become relevant in this case?
AFSL (a financier) was induced by a fraudster (S) to make payments to a number of businesses, including Hills and Bosch, for the purchase of non-existent equipment. S advised Hills and Bosch that the payments were for the discharge of debts owed to them by his companies (the ‘company debts’). In reliance on their receipts, Hills and Bosch treated the company debts as discharged, continued to trade with the companies and gave up the opportunity to pursue remedies in enforcement proceedings against the companies or their directors. Both recipients also gave up the opportunity of taking other steps to better their position, such as by seeking security from third parties. Continue reading
The High Court today heard its fourth day of oral arguments in Ron Williams’s current challenge to the National School Chaplaincy Program. The High Court’s willingness to allow days of argument on major cases sharply contrasts with the United States Supreme Court, which abandoned the practice of lengthy arguments in 1849, and now typically allows just 30 minutes per side and often hears two full cases in a morning. The more relaxed approach in Australia allows arguments to develop and even alter substantially during the course of a hearing. However, that flexibility was itself a matter of controversy in Williams’s previous challenge to the Chaplaincy Program in 2011. Continue reading
The High Court has unanimously dismissed an appeal against the decision of the NSW Court of Appeal in a case concerning (among other things) the scope of so-called ‘defences’ to restitutionary claims, specifically the change of position defence. Continue reading
A five-member bench of the High Court has unanimously allowed an appeal against the decision of the Victorian Court of Appeal in Atco Controls Pty Ltd (in liq) v Stewart. Continue reading
The High Court played a role on both occasions when jury findings against Raymond Carroll in relation to the death of toddler Deidre Kennedy were overturned on appeal. In 1985, Carroll’s conviction for Kennedy’s murder was quashed by Queensland’s Court of Criminal Appeal, relying in part on the High Court’s judgments in Chamberlain (to hold that the jury should have been directed that it should not rely on forensic evidence that his teeth matched a bite on the toddler’s body unless satisfied of that fact beyond reasonable doubt) and Markby, Perry and Sutton (to hold that ‘similar fact’ evidence of Carroll’s alleged biting of another child was inadmissible). Each of these High Court judgments have since been qualified by later High Court judgments (Edwards and Pfenning) and (in some states) legislation. More importantly, in 2002, the High Court ruled that Carroll’s subsequent conviction for perjury (for allegedly lying at the 1985 trial when he denied murdering the toddler) was an abuse of process because of the rule against double jeopardy. Following England’s lead, most Australian states and territories have since enacted exceptions to the rule against double jeopardy.