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? In a tax case in 2015, the Western Australian Court of Appeal ruled that, assuming the lower court was satisfied that ‘there is no reasonable prospect of any appeal from this court’s judgment being allowed’, the final decision on the injunction should be the High Court’s (with the lower court, ‘on the contingency that our view may be wrong’, only issuing a three-week injunction to allow the appellant to ask the High Court for a longer one.) However, Kiefel J disagreed, citing the changed procedure for special leave applications that the High Court introduced last year:
The parties’ legal advisers in this matter are aware that, following upon changes made last year by this Court to the procedures respecting applications for special leave, the determination of such applications is able to be made more expeditiously by this Court. In the case of all such applications, including those in which the parties are represented, they are in the first instance referred to a panel of two Justices, who determine whether oral argument is warranted. If the Justices consider at that point that there is no basis for the grant of special leave, they list the matter for orders accordingly. They may also order a grant of leave, without oral argument. In the event that the matter is referred for oral argument, it can usually be heard in a relatively short period of time.
In Kiefel J’s view, this made it clear that lower courts should be ready to issue injunctions ‘until further order’ when litigants are contemplating a special leave application, rather than waiting to see if the High Court thinks such an injunction is worth granting. She expressed the test for granting such injunctions as whether or not there is a ‘not insubstantial’ chance of a grant of special leave, established in this case because it provides ‘an opportunity for clarification or amplification of a principle by reference to the particular facts of the case.’ It will be interesting to see what, if any, planned applications for special leave could ever fail this test.
Justice Kiefel’s description of the Court’s new process for special leave applications is the first by a judge of the court, as opposed to the registrar. But parts of the new process remain unclear. For example, who ‘refers’ the application to two judges, and on what basis? Which two judges? What test do they apply to decide whether or not to list the matter for an oral hearing? What happens if they disagree? What governs when such a matter is listed for oral hearing? Some light on some of these questions was cast in the hearing before Kiefel J, when counsel referred to the following exchange with the registry, presumably in early January:
In communications with the Court Registry, which I have seen and therefore can tell your Honour first hand, the Registrar made that very observation and indicated that it would be possible to get a panel together likely by the end of the month and if an oral hearing was required likely by the end of February.
The outcome of Michael Mercanti’s application has not yet (publicly) emerged. In the Court’s first business list for 2017, issued this week, Mercanti v Mercanti is not one of seven matters listed for oral hearing on February 10th.