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:

  •  DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148, where the Victorian Court of Appeal adopted the DPP’s submission that current sentencing practices in Victoria for the crime of incest (averaging three-and-a-half years for non-aggravated single incidents) were too low and should gradually rise. However, despite holding that the particular sentence under appeal (of three-and-a-half years for an incident of incest that resulted in a pregnancy) was manifestly inadequate (as it should have been significantly higher than seven years), the Court dismissed the appeal because the original sentence reflected the then applicable current sentencing practices.
  • Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72, where the Full Court of the Federal Court ruled on a complaint that industrial action at Esso’s Longford plant contravened the Fair Work Act 2009. Although a majority of the Full Court partly upheld a trial judge’s findings that the AWU failed to comply with a Fair Work Commission order requiring it to notify its members that refusals to work overtime were unprotected industrial action, the Court nevertheless held that a section barring protected industrial action by people who ‘have contravened any orders that apply to them’ only covered the period of non-compliance, rather than all future action in the enterprise bargain. However, the Full Court also held that the AWU’s organisation of those bans breached the Act’s prohibition on action ‘with intent to coerce’, regardless of whether or not the AWU believed that the action was lawful.
  • R v GAX [2016] QCA 189, where a majority of Queensland’s Court of Appeal dismissed the defendant’s appeal against a jury’s finding that he indecently assaulted his daughter in 1990. Although the jury acquitted the defendant of some of the alleged abuse, they convicted him of indecent assault in relation to an incident where family members discovered him in her bed as she slept. Although McMurdo P in dissent argued that the complainant’s and family members’ evidence could only establish that the father’s behaviour was suspicious, rather than criminal, the majority held that the differences between that incident and the earlier unwitnessed ones showed ‘that the verdict of the jury should not be set aside on the ground that it was unreasonable’.
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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

One thought on “News: Three new special leave grants round off 2016

  1. In an interesting touch, prosecuting counsel Chris Boyce SC referred to Kiefel J several times as ‘Chief Justice’. Of course, she won’t be until January 30th next year.

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