News: Three special leave grants, two on papers, one oral

This morning, the High Court ended Eddie Obeid’s formal challenge to his conviction for misconduct in public office, refusing the former MP special leave to appeal to the nation’s apex court. He wasn’t alone in being disappointed. There were just six matters listed for oral hearing today (compared to thirteen a month ago) and only one application was granted) compared to six a month ago. On the other hand, the Court had already granted special leave in two matters on the papers this Wednesday,¬†albeit out of around fifty dealt with without a hearing.)

The three cases where the Court will hear appeals some time this year are:

  • Tomaras & Tomaras and Anor and Commissioner of Taxation [2017] FamCAFC 216, which concerns whether the Family Court can give orders to government agencies as part of the determination of a property dispute. After the breakdown of a marriage, one spouse, who had incurred a $250,000 tax liability during the marriage, sought an order from the Federal Circuit Court that that her (bankrupt) partner become solely liable for the debt. The Full Court of the Family Court, asked to determine the meaning of a statutory provision allowing such orders to be made to third party creditors, held (by majority) that the common law presumption that the Crown is not bound by statutes does not apply to this provision (which, it held, could not harm the Commissioner’s position as a creditor) and (unanimously) that the presumption was in rebutted in any case.
  • Wreck Bay Aboriginal Community Council v Williams [2017] ACTCA 46, which concerns the law applicable in a tenancy dispute on land granted to an indigenous council in Jervis Bay. The defendant, a member of the Council, sued the council for breach of his lease of a house on Council land, citing the property’s poor state of repair. The ACT Court of Appeal unanimously ruled that the ACT’s residential tenancy law (which is applied to Jervis Bay by a federal statute) cannot operate consistently with another federal statute granting land to the Council, at least to the extent that it imposes or voids terms of the lease, and therefore that the ACT law does not support the plaintiff’s action against the Council.
  • Zappia v Comptroller General of Customs [2017] FCAFC 147, which concerns the scope of a federal law imposing customs duties for lost imported goods. The defendant was employed as the general manager of a warehouse that stored imported cigarettes on behalf of an importer at the time the cigarettes were stolen. After the company and its director (the defendant’s father) went bankrupt, the Comptroller of Customs served the defendant with a notice requiring him to pay the $188,000 that would have been payable by the importer had the 400,000 stolen cigarettes been (legitimately) made available for local consumption. The full court of the Federal Court held that, because the defendant only had operational control, and could not require that the cigarettes be sent elsewhere, the Comptroller could not order him to pay the duties.
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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.