Last Friday was the High Court’s official special leave day for May. However, there were no special leave hearings that day and no determinations either. Rather, May special leaves were determined on three days:
- Two Thursdays ago, when 2 matters received leave and 11 (including 4 unrepresented matters) were refused, all decided on the papers by Nettle & Gordon JJ.
- Last Thursday, when 1 matter received leave and 13 (including 6 unrepresented matters) were refused, all on the papers by Bell & Gageler JJ.
- This Monday, when 2 matters received leave and 5 were refused, all after listed oral hearings.
So, that is a total of 5 grants and 29 rejections, out of 7 oral hearings, 17 represented non-oral matters and 10 unrepresented non-oral matters.
This month, we have learnt a little more about the Court’s new process. First, it is now clear that matters can be granted leave on the papers, even when they are unrelated to existing matters that have already been granted leave. Indeed, three of the five new grants were dealt with in this way. Second, it is also clear that the Court is quite willing to determine high profile matters on the papers, for example criminal appeals by Eddie Obeid (refused two Thursday ago) and against Gerard Baden-Clay (accepted last Thursday.) Third, being listed for oral hearing brings a greater, but not hugely greater, chance of a grant: 28% of oral matters and 17% of non-oral represented matters scored grants. Fourth, at least for now, the court list posted the evening before for non-oral matters strongly indicates the outcomes: grants were only given in matters that were only listed for orders, while all matters additionally listed for reasons were refused. Fifth, continuing a pattern from last month, all were determined by geographically linked justices from NSW/ACT (Bell & Gageler JJ) and Victoria (Nettle & Gordon JJ) (and, last month, Queensland’s Kiefel & Keane JJ) The Chief Justice is yet to determine any non-oral matters under the new system.
So, what are the five matters where leave was granted? They are:
- Blank v Commissioner of Taxation  FCAFC 154, a taxation matter about whether entitlements under profit participation arrangements are to be treated as ordinary income or a capital gain. The appellant is a senior executive at Glencore International, a commodities firm, and the recipient of a remuneration package that included a profit participation plan that paid a lump sum that he redeemed over five years after his employment ended. The Full Court of the Federal Court split on the issue, with the majority accepting the Commissioner’s argument that his entitlements under the plan re ordinary income and Pagone J holding that they should be treated as a capital gain.
- Bywater Investments Limited v Commissioner of Taxation  FCAFC 176, another tax matter, this time about residency and trading stock. The Full Court of the Federal Court unanimously upheld rulings that the applicants were Australian residents for taxpayer purposes (based on findings that the directors mechanically deferred to a Sydney accountant and rejecting the applicants’ claims that the accountant was merely an adviser or a consultant) and that their trading stock was to be valued as nil in every year where the applicants had not been assessed in Australia.
- Martin v Comcare  FCAFC 169, a workers compensation matter. The applicant, an ABC employee, developed an ‘adjustment disorder’ as the result of bullying by her supervisor, which was exacerbated when she was rejected for a promotion (that would have transferred her to a different supervisor) by a panel that included both supervisors. A majority of the Full Court of the Federal Court held that the AAT wrongly ruled that the employee’s adjustment order was ‘a result of’ the promotion decision (a ruling that would have meant the employee’s claim would fail unless the decision was not ‘reasonable’) and also applied the wrong test for determining if the decision was reasonable (a word that that the AAT wrongly equated with the test for ‘apprehended bias’.)
- R v Baden-Clay  QCA 265, a high profile homicide appeal. The defendant was convicted of the murder of his wife, on the basis of evidence that included scratches on his face (that he claimed were from shaving) and that he had been having an affair (which he initially told police had ended a year earlier.) The Queensland Court of Appeal substituted a verdict for manslaughter on the ground that the evidence (including his lies) could not establish that he killed his wife intentionally (as opposed to accidentally in the course of a fight.)
- Simic v New South Wales Land and Housing Corporation  NSWCA 413, concerning the construction of an error-ridden bank guarantee. The appellant, the guarantor of a building company that successfully tendered to build housing for the Corporation as part of the 2009 economic stimulus, was required to provide security of around $140,000 in the form of a bank authority to transfer that amount to the Corporation if the latter requested it. However, the authority that was prepared mis-described the Corporation (substituting ‘&’ for ‘and’, ‘Department’ for ‘Corporation’ and specifying the wrong ABN), amongst other mistakes, prompting the ANZ to refuse to pay when requested. The NSW Court of Appeal unanimously upheld a ruling that the authority should nevertheless be read as describing the very similarly named Corporation that was a contractual party to the tender agreement, on the basis that an effective reading should be preferred to an ineffective reading.