News: Eight special leave grants, but two are a secret

In Friday’s oral hearings, the High Court granted leave in four matters in Sydney (and none in Melbourne), but that is only the half of it. A week earlier, the Court also granted leave in four matters on the papers. Two are immigration matters (concerning anonymised applicants, as usual) while the others are… well, who knows?:

12. AB v CD & Ors (M183/2017)

13. EF (a pseudonym) v CD (a pseudonym) & Ors (M185/2017)

The published registry list does not name the lower court judgments that are under appeal. We don’t know who any of the parties are (though we know that at least CD and EF aren’t their real names.) We don’t know what either matter is about. We don’t know what the issues are. We don’t know why they’re secret. We don’t know if the two cases raise the same or different issues. As usual (for matters dealt with on the papers), we don’t know why they were granted leave. The brief special leave transcripts disclose a smidgen more in their titles, which reveal that AB and EF are respectively parties for the actions they aren’t named in, and that the federal Director of Public Prosecutions and Victoria’s human rights commission are parties in both. And maybe (or maybe not) there’s a connection to a High Court transcript from late last year of a directions hearing before Nettle J between all the same parties, where ‘AB ‘was represented by Victoria’s government solicitor, ‘CD’ (the first respondent in both matters) was represented by Victoria’s solicitor for public prosecutions and ‘EF’ was represented by a commercial law firm.

All will eventually be revealed. Or will it? The same day it granted leave to those two cases, the Court held a final hearing in a matter (also from Victoria, Australia’s suppression order capital) involving four pseudonymous people facing federal prosecution for charges that are secret. At last in that case, we can read the judgment below and the parties’ submissions so that we know what the general issues are. Perhaps something similar will happen with the mysterious dispute between AB, CD, EF and co. But, for now, I can only summarise three-quarters of the matters where Australia’s apex court granted leave this month. Sometime later this year, the Court will hear appeals from the following six, published decisions:

  • BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 and Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 are separate matters raising a common issue: whether a tribunal review of an asylum decision is automatically invalid if the evidence before the tribunal included information that was the subject of an invalid Ministerial certificate allowing the tribunal to keep the information secret from the applicant. Applying a Full Court ruling in a third case decided that day – that such a decision is only invalid if the secret information was material to the tribunal’s ruling – the Full Court ruled against both asylum applicants, upholding a circuit judge’s decision against one Tamil applicant and overturning another’s decision in favour of the other applicant.
  • Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251 concerns whether a protester can be convicted of damaging property if his actions don’t harm the machinery but nevertheless require it to be shut down. The defendant was convicted of the offence of damaging property and fined $1000 after he climbed a ship loader at a coal terminal and suspended himself from it by a rope, resulting in the ship loader being shut down. The NSW Court of Criminal Appeal unanimously ruled, in light of the history and purpose of the offence, that his behaviour was capable amounting to property damage.
  • Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170 is part of a long-running, high profile dispute about the management of a family trust. The Full Court unanimously held that the some family members could not bring a claim in the Federal Court that the trustee had engaged in misleading or deceptive conduct because the trust was subject to an arbitration clause and the claim fell within the terms of NSW’s Commercial Arbitration Act. The Court also held that the NSW statute could validly bar a federal court claim and that a challenge to the validity of the arbitration clause itself should be determined by the arbitrator.
  • Lewski v Australian Securities & Investments Commission (No 2) [2017] FCAFC 171 is an appeal in a civil penalty proceeding by the corporate regulator against five directors of a failed aged care and retirement trust for alleged breaches of their duties as company directors. In this decision, the Full Court affirmed its own earlier decision overturning a trial judge’s findings that the directors had breached their duties when they amended the trust’s constitution and paid the company a listing fee, and also overturned findings that the company was likewise in breach.
  • South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312 is a ruling on compensation for a helicopter crash that killed the pilot and two council employees who were conducting a noxious weed survey. The Court of Appeal ruled that the surveyors were passengers for the purposes of state law applying the Warsaw Convention that limits air accident compensation claims and (by majority) that claims of nervous shock brought by one surveyor’s family members are claims ‘in respect of’ the surveyor’s death under that convention. The Court allocated responsibility for the crash one-third to the Council (for the surveyors’ negligence), two-thirds to the helicopter company (for the pilot’s negligence) and no-thirds to the electricity company that owned the power line the helicopter crashed into.
This entry was posted in News, Opinions by Jeremy Gans. Bookmark the permalink.

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.

3 thoughts on “News: Eight special leave grants, but two are a secret

Leave a Reply

Your email address will not be published. Required fields are marked *