News: 3 new cases in the Court’s non-s44 docket

As the High Court presumably braces for its next ‘job lot‘ of s. 44 cases, it has also added a relatively small number of new cases to its regular docket. While all special leave applications heard on the papers were rejected this month, the Court granted leave in Friday’s twin oral hearings in three matters. One grant is a rare (and welcome) instance of the High Court intervening in a criminal proceeding that has not yet gone to trial, in this case a very long running prosecution of four defendants on federal charges. The fact that the trial is yet to occur may (or may not) explain why the four are only referred to by pseudonyms and that the charges in question are not identified.

The three cases that will now be appealed to the High Court are: Continue reading

News: The High Court dismisses a runner-up Senator

This Wednesday at 10.05AM, Australians at last saw an end to the marriage law survey, the indirect product of the High Court’s 2013 decision declaring the ACT’s Marriage Equality Bill inoperative and the High Court’s September decision upholding the government’s instruction to the Australian Bureau of Statistics to perform the survey. Marriage equality is now exclusively a matter for the politicians Australians elected in 2016. But, as a decision from the High Court five hours later makes clear, the 2016 election is still ongoing and doesn’t look like ending any time soon. This time the High Court held that nominee Hollie Hughes was ineligible to be declared elected, because she took a position in the Administrative Appeals Tribunals (an ‘office of profit under the Crown’) during the 15 months that ineligible dual citizen Fiona Nash purported to take her spot in the Senate. This especially startling instance of the Court’s ‘brutal literalism‘ (when it comes to s44) will undoubtedly lead to more questioning of whether some of the people currently sitting in Parliament were actually elected.

The requirements of s44 are challenging, not just to MPs and nominees, but also to the media, which faces the difficulty of reporting on its content and the various processes for testing it. On Wednesday, the media were not assisted by the Chief Justice, Continue reading

Theme Problems on Opinions on High

Apologies to all readers for the strange display issues. This change happened automatically a few days ago, and seem to be part of either a WordPress or University of Melbourne blog platform update that we were not told about, and did not approve. Unfortunately due to the University’s platform restrictions we also cannot manually change the theme at the moment. We are aware that the page is not functioning properly and is not easy to read, and that the pictures of cacti don’t make a lot of sense. Rest assured we hope to fix this and revert to the old theme shortly.

News: UK Supreme Court aligns with Australian High Court on criminal dishonesty

The United Kingdom’s Supreme Court is not shy about changing course on major legal issues, such as complicity law and (just last week) state immunity. On Wednesday, it dropped another criminal law bombshell. The case in question was a civil dispute between a champion poker player, Phil Ivey, and a London casino, on whether Ivey was entitled to 7.7 million pounds he seemingly won at Baccarat over two days. The issue was whether Ivey’s method, which included tricking the croupier into turning particular cards around and then making plays by relying on his ability to tell which cards had been turned from the pattern on their back, was cheating. The Court upheld lower court rulings in favour of the casino, surprising those who thought it took the case to hold that Ivey’s (undisputed) belief that his play was an honest ‘advantage’ one meant that he was no cheat . Instead, the Court not only found for the casino, but overturned the 1982 Court of Appeal decision, R v Ghosh, that held that criminal dishonesty requires proof that the defendant knew others would regard his or her actions as dishonest. The Supreme Cuurt’s ruling not only reversed thirty-five years of English theft and fraud law, but also seemingly left Ivey to prosecution for criminal cheating (not that any such prosecution is on the cards.)

While Ghosh‘s many fans in the academy are currently working their way through the five stages of grief, some Australian High Court judges may be feeling quite different emotions. Continue reading

News: Six new High Court cases

At last Friday’s oral special leave hearings, it was easier to ask which cases didn’t get special leave. There were just two and they were both quite interesting – a NSW decision upholding a high-interest short-term loan (now $670K plus $2.4M interest!) even though the lender (correctly) believed that the borrower had fallen for a Nigerian fraud scam; and a Victorian holding that a pregnancy the military failed to detect is not a ‘service injury’ (and therefore is not limited by a statutory military compensation scheme.)

The five new appeals that made the grade were: Continue reading

News: Dispute over submissions to High Court in a sentencing appeal

On 14th June this year, the High Court heard a Crown appeal against an incest sentence, an appeal that turns in part on a practice of Victoria’s Court of Appeal. Since 2007, the Victorian Court has sought submissions and made rulings on the topic of ‘current sentencing practices’ in particular classes of case, simultaneously with but separate from resolving particular sentencing appeals. A year ago, the Court of Appeal ruled that sentencing practices for incest were too low, but also dismissed a Crown appeal about a particular incest sentence. In his written submissions on appeal, Victoria’s Chief Crown Prosecutor said:

It is not apparent that any other State or Territory in Australia struggles with the question of consistency of sentencing in quite the manner experienced in Victoria. It is respectfully submitted that the correct role to be played by “current sentencing practices” should be decided. From what appears above, it might be said that there is not a united position in the Victorian Court of Appeal on the issue.

In the High Court hearing, he used sharper language, describing the Victorian approach as ‘inimical’ and ‘not permissible’. One exchange went like this:

KEANE J: But as I understand it, it seems to be said against you that the Director somehow accepted that there was this limit on the appeal and that the result is essentially something for which the Director is responsible.

MR SILBERT: Your Honour, this has been going on for something like 10 years. The Director has no option, when requested to make these submissions, but to make them. When the court refers to an uplift the Director cannot simply say, “I refuse to be involved in this uplift.” If the Director is lodging an appeal on the basis of manifest inadequacy he has to go along with it or else he has no basis for appealing. So it is a procedure that is imposed by the court and has been for something like 10 years. It has actually never been used by the Director effectively, I do not think, to produce any result in any concrete case.

There are dicta that emanate from various cases where the court considers this uplift and says well, sentencing is inadequate, and they have said it here, but they do not determine the dispute in issue between the parties. There is obiter, as referred to by Justice Ashley in Ashdown, that emanates from these discussions but they are more philosophical discussions than disputes between the Crown and an accused. The Crown is not complicit in the exercise – it did not invent the exercise – and it is dragged kicking and screaming into each one of these contests. I do not know whether that answers your Honour’s question.

KEANE J: It just does seem odd.

On Wednesday, the High Court unanimously upheld the DPP’s appeal, drawing on its recent ruling in Kilic (on the relevance of the maximum sentence) and holding that the decision to uphold a sentence that was based on then current, but wrong, sentencing practices, was ‘an error of principle’. Indeed, the plurality concluded that it ‘might’ be that the Court of Appeal’s practice ‘is inconsistent with [Victoria’s] Sentencing Act’.

The publication of the judgment coincided with the release by News Ltd of letters between Victoria’s then Chief Justice and Victoria’s Director of Public Prosecutions. Continue reading

News: What is happening in the MP eligibility cases?

After a lengthy break for renovations (and rare full court hearings in Sydney and Melbourne), the High Court will return to its Canberra headquarters next month. The first case on the business list for Tuesday 10th October is:

In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Senator Matthew Canavan, Mr Scott Ludlam, Ms Larissa Waters, Senator Malcolm Roberts and the Hon. Barnaby Joyce MP (C11/2017, C12/2017, C13/2017, C14/2017 & C15/2017)

These are five of the seven matters referred to the High Court concerning possible ineligibility under s44(i) of the Constitution, specifically its disqualification of ‘a citizen… of a foreign power’. It is likely that the remaining two matters (concerning Senators Nick Xenaphon and Fiona Nash) will  be heard at the same time. (An eighth pending matter about MP eligibility – Labor’s challenge to David Gillespie over his ownership of a shopping centre company with Australia Post as a tenant – is not yet listed and involves entirely separate issues and processes.)

The seven matters to be heard in October aren’t regular High Court challenges where one person sues someone else. Continue reading

News: Murphy J and the ‘Greek Conspiracy’

Last week, the federal Parliament released a large set of documents from 1986’s ‘Parliamentary Commission of Inquiry’ into the conduct of High Court justice Lionel Murphy, which ended without resolution after the sad news broke of the judge’s imminent death. Justice Murphy’s family have strongly objected to the release, noting that the papers include many wholly unsubstantiated allegations and that there is now no possibility of them being formally investigated; instead, the papers can only contribute to the much more ambiguous judgement of history. None of the allegations relate to Murphy J’s actual work as a High Court judge, but instead are concerned with his alleged activities off the bench (albeit ones that may have led to his resignation or removal from the Court.)

An arguable exception is what is known as ‘Allegation 39‘, Continue reading

News: The High Court returns to Melbourne

The High Court’s current rectification works at its Canberra headquarters are said to be urgent, but foreseen. The Court could not have foreseen that they would coincide with a series of urgent, high profile cases that may determine the future of the present government. This week’s hearing into the legality of the same-sex marriage postal poll takes place in premises that have never before held a major hearing and are ill-suited to housing so many judges and barristers, let alone journalists and interested members of the public. The Court’s current Melbourne home, on Level 17 of the Commonwealth Courts building above Flagstaff Station, has just a single modest sized courtroom designed for special leave applications, and an even more modest lobby. The Federal Court warns its users:

It is anticipated that there will be delays through security screening at Commonwealth Law Courts building in Melbourne over the next few days. This is due to the High Court sitting in Melbourne over September and the expected increase in visitor numbers to the building. Please allow extra time for screening ahead of your court event.

The High Court’s contribution is to permit its hearing to be  ‘broadcast to‘ a second courtroom on Level 8 of the same building, one usually used for Federal Court hearings (and the odd lecture.)

This isn’t a first – the Court has previously had overflow facilities for high profile cases such as the Gerard Baden-Clay appeal in Brisbane. An apparent first is the Court’s permission for live tweeting to occur in the overflow room, presumably because there is no possibility of the arguments being interrupted by a ringing phone. Video and audio recordings, and photographs, remain forbidden.

This week’s hearing is also a significant event in the history of the Court, Continue reading

News: Parties and dates set for dual citizenship hearings

Thursday morning’s directions hearing relating to the possible of ineligibility of sitting federal MPs due to their possible dual citizenship began with a series of ‘determinations‘ by the Kiefel CJ under this section of the Commonwealth Electoral Act:

The Court of Disputed Returns may allow any person who in the opinion of the Court is interested in the determination of any question referred to it under this Part to be heard on the hearing of the reference, or may direct notice of the reference to be served on any person, and any person so allowed to be heard or so directed to be served shall be deemed to be a party to the reference.

Most actions before the High Court have two clear parties, because one of the parties starts the action and names their opponent. By contrast, the present five (and counting) applications are just ‘questions’ referred to the Court of Disputed Returns by parliament, and the Court needs to work out who (if anyone) will actually be making arguments. Hence, the Court itself advertised the references on its webpage and called for submissions from prospective parties. Kiefel CJ then determined who were the lucky (or unlucky) parties for each reference, for example:

In relation to the reference concerning Mr Ludlam, the orders of the Court are: The following persons shall be allowed to be heard on the hearing of the reference and shall be deemed to be the parties to the reference pursuant to section 378 of the Commonwealth Electoral Act 1918 (Cth): (i) Scott Ludlam; and (ii) the Attorney-General of the Commonwealth. Ian Bruce Bell, Bret Busby and John Lewis Cameron will not be heard by the Court. The submissions of Joe Bloggs, Deearne Gould, Ian Bruce Bell, Bret Busby and John Lewis Cameron will not be received by the Court and will not be taken into account on the hearing of the reference.

Senator Scott Ludlam was the first of the five MPs whose dual citizenship became an issue. He has since resigned and, according to the Commonwealth Solicitor-General, isn’t going to argue that he was ever eligible to be a Senator. However, Kiefel CJ said that she wasn’t willing to resolve his position separately from the rest, so he became a (unwilling?) party, as did the Commonwealth Attorney-General (who said he won’t necessarily be arguing either way on Ludlam’s eligibility.) But Kiefel CJ rejected nearly all the remaining hopefuls, including barrister John Cameron (who revealed Ludlam’s dual citizenship) and the ubiquitous ‘Joe Bloggs’ (who made submissions on all five candidates.) The Chief Justice’s detailed reasons for these determinations (if any) have not yet been published.

The remainder of Thursday’s hearing was devoted primarily to setting a date for the hearings, although that was quite complex. Continue reading

News: Four more High Court cases

On Friday’s oral special leave hearings, the High Court added three new cases to its docket, while rejecting leave in a high profile matter, former army reservist, Bernard Gaynor, whose sacking by the ADF over anti-gay and anti-Islam views he posted online will accordingly stand. However, in the week after June’s oral hearings, the High Court granted leave on the papers in a connected set of five disputes concerning the powers of state tribunals, which include an anti-discrimination complaint against Gaynor over his alleged anti-homosexual remarks.

The four matters that can now be appealed to the High Court are: Continue reading

News: High Court OKs a one-person law

On 12th September 1996, a 4-2 majority of the High Court struck down a NSW law that applied to only one person:

Gregory Wayne Kable is the person of that name who was convicted in New South Wales on 1 August 1990 of the manslaughter of his wife, Hilary Kable.

The law allowed a Supreme Court judge to detain Kable (and only Kable) for six months at a time, if the judge thought that Kable was still a danger to the community. Today, nearly twenty-one years later, the High Court unanimously rejected a challenge to a Victorian law that applies to only one person:

In this section a reference to the prisoner Julian Knight is a reference to the Julian Knight who was sentenced by the Supreme Court in November 1988 to life imprisonment for each of 7 counts of murder.

That law forbids Victoria’s parole board from ever releasing Knight (and only Knight, who perpetrated 1987’s Hoddle St Massacre), even if the parole board thinks he is no danger to the community. Kable’s law was struck down because it placed his freedom in the hands of the courts. Knight’s was upheld because it left his freedom in the hands of no-one at all.

When Kable was decided in 1996, some hoped it was the start of judicial scrutiny of laws that sought to impose punitive outcomes by unjust means Continue reading

News: The High Court revisits same-sex marriage

Take a moment to consider the workload of the Commonwealth Solicitor-General, Stephen Donaghue, now seven or so months into his job. On Monday and Tuesday, he argued the Commonwealth’s position before the High Court in Brisbane in a horrendously complex proceeds of crime matter, an appeal from a 1275 paragraph Queensland  judgment. He (presumably) spent last weekend advising the Prime Minister on the potential disqualification of his deputy under s44(i) of the Constitution, advice Turnbull cited in Parliament on Monday. And last Friday, he represented various Commonwealth parties being sued in two actions over the proposed poll on same-sex marriage in a directions hearing before Kiefel CJ. Donaghue’s busy long weekend is one sign of how the recent whirlwind in federal politics will soon descend onto the High Court, which has only just returned from its winter break and is still unable to work in its renovations-affected Canberra home.

The High Court last ruled on an issue of same-sex marriage in 2013, Continue reading

News: The High Court on dual citizen MPs

The recent resignations of Senators Ludlam and Waters mean that the following provision of Australia’s constitution is having a moment:

44 Any person who: (i)  is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power… shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Despite some comments to the contrary, the issue is not one of foreign ‘allegiance’ – no-one seriously thinks the two ex-Senators owed, much less acknowledged, an ‘allegiance, obedience or adherence’ to New Zealand and Canada. Rather, the issue is their foreign citizenship. Both Ludlam and Waters are foreign citizens by birth, despite moving to Australia as very young children and quickly obtaining Australian citizenship. Their resignations have prompted some debate about the appropriateness of s44(i). For instance, it is startling that both Senators could now readily become MPs in the parliaments of their respective birthplaces without relinquishing their Australian citizenship.

While the media discussion of s44(i) has centred around its text and the slim possibility of a referendum, Australia’s High Court has also played a key role in the lead up to this situation. Continue reading

News: Historic Old High Court building in Melbourne

Melbourne-based readers of the blog may be interested to know that the Victorian Supreme Court will be opening the Melbourne Old High Court building on 30 July from 10am to 4pm as part of the Open House Melbourne Festival. In addition from 2 – 2:30pm, there will be a talk on the architecture and history of the building by Robin Grow, an expert in Art Deco architecture, and Joanne Boyd, the Supreme Court Archives and Records Manager. This post outlines some of the significance of the building, with a quick dip into significant constitutional cases for those who have an interest in such matters. [Update: for a fascinating personal insight into his role in ensuring the Supreme Court made use of the Old High Court and the decision-making process with regard to the crossover between the Supreme Court and the Old High Court see Hon. Philip Mandie’s comment on the post.]

Image taken by Heather Turk

Continue reading

News: Rectification of buildings and the High Court

The High Court has handed down two important cases on rectification of building works, each of which suggest that the court places a high value on rectification. However, as discussed below, I could not have guessed that the High Court’s passion with regard to building rectification may have stemmed from its own experience. [Post corrected below]

Continue reading

News: Live tweeting the High Court

Two weeks ago, I ‘live tweeted’ a hearing at Victoria’s Court of Appeal, sending out roughly 115 tweets in around an hour (‘storified’ here) of discussions about alleged contempt by three Ministers.  It was my first try at live tweeting and the tweets were well received and distributed – and, it turns out, wrong. At last Friday’s hearing, a court officer told me that the use of mobile phones (or even having them on) is forbidden in Victoria’s Supreme Court When I  asked if that included live tweeting, he told me that if I ‘argued any more’, I’d have to leave. It turns out, though, that there is a rule on live tweeting by ‘members of the public’ set out on the Court’s website:

Accredited journalists may use electronic equipment for the publication of material on the internet (blogging, twittering and similar)…. Non-accredited journalists, free-lance writers, ‘citizen journalists’ and members of the public need to seek permission from the trial judge for the use of electronic equipment in Court.

Alas, this rule is cleverly hidden away. While court visitors who consult the website’s instructions on ‘court etiquette‘ are simply told to ‘turn off all mobile phones and other electronic equipment’, those seeking the process allowing them to live tweet must first click ‘contact us’, then ‘media centre’, then a link that directs ‘members of the media’ to a document titled ‘media policies and practices‘, which has  a heading – ‘journalists using electronic equipment in court’ – where the above discussion is buried in the middle (behind a sign that says ‘beware of the leopard’.) How visitors are meant to seek permission to live tweet appeal proceedings, particularly urgently scheduled ‘mentions’ such as those about contempt, is anyone’s guess.

So, what is the policy on live tweeting High Court proceedings? Continue reading

News: Bell J on ‘The Individual Judge’

UNSW Law Journal has now released the video of Bell J’s keynote speech at the launch of its thematic issue on ‘The Individual Judge.’ Pleasingly, this was certainly no puff piece. Beyond praising the journal’s ‘honoured place’ amongst peer-reviewed law journals and describing the issue as ‘very readable and stimulating’, she didn’t (unless I missed something) have a single good thing to say about any of the papers inside it. Indeed, she strongly criticised several and threw in some critiques of academic writing on the Court’s 2013 Monis decision to boot. Her language was forceful and full of humour, and many of her arguments were persuasive. All of this, in my view, is a powerful example of everything we lose when each High Court judge’s individual voice is submerged in anonymous and depersonalised joint judgments.

Unsurprisingly, Bell J directly addressed the paper by Partovi et al identifying the authors of the Mason Court’s joint judgments, discussed here. She says: Continue reading

News: Sir Keith Aickin’s death, 35 years ago

At 1.25pm on Friday 4th June 1982, Gwyn Reiseger was driving on Coolart Road in Somerville on Victoria’s Mornington Peninsula. Ahead of her, she could see a small green Volkswagen waiting at a stop sign to cross the road. As she slowed down and indicated that she was turning left at the intersection, the driver of the green car slowly drove across Coolart Road. Unfortunately, he didn’t look the other way until too late. Seeing a silver Datsun speeding towards him at 90km/h, he stopped in the middle of the intersection. Reiseger heard a screech of brakes and then saw the Volkswagen spin off the road. Both cars were wrecked. She later told the coroner:

Both drivers were having a conversation when I got there. I told someone to go and ring an ambulance. The driver was still seated in the vehicle and I had a quick look at him and he seemed to be alright. He had a cut on his left calf which was the only injury I observed.

The Datsun driver, navy diver Russell Crawford, was uninjured. After the ambulance left, he asked a tow truck operator who the Volkswagen driver was. He was told that it was Keith Aickin.

Two weeks later, and thirty-five years ago yesterday, the High Court’s Sir Keith Aickin died at Melbourne’s Prince Henry’s Hospital. Continue reading

News: Three private law matters granted special leave

My co-editor Katy Barnett has lately lamented the lack of special leave grants in private law matters. She will be happy about the three grants last Friday. In my view, a particular pleasure of private law matters is how hard-fought they can be over minutiae. An example is one of the three matters granted, which was described as follows in the lower court by the dissenting judge:

This is yet another appeal in what has been a long and bitterly contested series of actions and appeals between Clone Pty Ltd (“Clone”) and Players Pty Ltd (“Players”). There have already been two sets of proceedings that have been the subject of appeals to the Full Court and unsuccessful applications for leave to appeal to the High Court.

For added interest, one side of the dispute – who lost two High Court special leave applications but succeeded in their most recent state appeal – includes three well-known sports stars. Their opponent – a company owned by a wealthy family including a high profile investment banker – obtained leave to appeal the reopening of their victory 11 years ago. Astonishingly, the core dispute is about whether the word ‘NIL’ in a 1994 lease agreement was crossed out with a blue pen, to be resolved by examining four surviving photocopies of the lease because the original was lost. (For a taste of the factual subtleties of that process, see the dissenting judgment at [673]-[694].) And yet, the case raises some very major issues indeed concerning civil discovery, the obligations of civil litigants and the finality of civil rulings.

The three matters where leave have been granted are: Continue reading

News: High Court cases behind today’s contempt hearing

Today’s reported contempt proceedings in the Supreme Court of Victoria do not (yet) involve the High Court. Rather, they concern an ongoing appeal in Victoria’s Court of Appeal by the Commonwealth Director of Public Prosecutions against a ten year sentence imposed on convicted terrorist Sevdet Besim by the Supreme Court. However, the issues are closely tied to several past High Court decisions.

One is a ruling in late 2015 allowing a Cth DPP sentencing appeal in a federal drugs matter, where the High Court unanimously held that:

to prefer one State’s sentencing practices to sentencing practices elsewhere in the Commonwealth, or at least to prefer them for no more reason than that they are different, is contrary to principle, tends to exacerbate inconsistency and so ultimately is unfair.

This ruling almost certainly is the background for reported comments by judges hearing the DPP’s appeal that, the case of terror sentences:

Warren CJ: “NSW courts appeared to put less weight on the personal circumstances of the offender than Victorian courts, with greater concern for denouncing the crime and sending a message to others in the community. It’s as if the Murray River is an enormous gap in terms of sentencing.”

Weinberg JA: “The range seems to be in the 20s [years] for offending somewhat similar to this. It is extremely worrying, I would have thought, that there is such a gap.”

Just as in the 2015 case, the difficulty faced by the judges is that Victorian courts consistently gave lower sentences than other states, notably NSW. The High Court has made it clear that Victoria should generally follow the national approach, rather than its own one.

The other High Court rulings in play today are ones concerning the common law offence of scandalizing the court. Continue reading

News: High Court hears appeal in…. Sydney??

This may not seem like news, but it is a first in nearly four decades. While the High Court’s Sydney Registry is often host to hearings of Australia’s apex court, these have long been limited to minor fare: special leave hearings, case management and the like, involving between one and three judges. By contrast, today’s hearings involve the Court’s core business (appeals) and at least five judges, something that last happened in Sydney on 10th and 11th March 1980, when all seven members of the Barwick Court heard a workers compensation dispute.

What changed after that date? The opening of the High Court’s first and only dedicated premises in May 1980 in Canberra. While Sir Garfield wanted that move to mark an end to the Court’s ‘circuits’ of Australian capitals (then administered by its Sydney Registry), a combination of resistance from the other judges (who didn’t want to live in Canberra) and state bars preserved the circuit system, albeit in a more limited form described in the Court’s most recent annual report as follows:

The Court conducts its sittings in Canberra and such other places as are determined by a Rule of Court made by the Justices in the preceding year. In addition, applications for special leave to appeal to the Court are heard regularly in Sydney and Melbourne, and the Court continues the practice, established on its inauguration, of sitting in Brisbane, Adelaide, Perth and Hobart if warranted by the amount of business.

So, what has changed now? Continue reading

News: Who wrote the Mason Court’s joint judgments?

Monday evening was the launch of the latest ‘thematic’ issue of the UNSW Law Journal. This issue’s theme is ‘The Individual Judge’, which is also the title of Kiefel CJ’s 2014 speech and paper, where she first said ‘collegiality is not compromise’. The paper is one of three where she has defended the High Court’s practice of attributing judgments largely written by one judge to all the judges who agreed with it. While there is much of interest in the new issue of the UNSWLJ, only one of the articles responds directly to Kiefel CJ’s stance. The paper by Andisheh Partovi et al sets out five arguments for correctly attributing authorship of judgments: ensuring individual accountability (an argument I also put here), discouraging free riding, and serving the interests of judges, academics and lawyers. More importantly, the authors acted on their views by outing the likely authors of the joint judgments of the High Court from 1987 to 1995, when Sir Anthony Mason was Chief Justice. Needless to say, their list is absolutely fascinating.

So, who, out of the eight judges who sat in that period, likely wrote the most important joint judgments of the Mason Court? Continue reading

News: Upcoming conferences include French court legacy

In two months, Melbourne Law School’s own Centre for Comparative Constitutional Studies will hold its fourth annual conference, this time focussing on:

  • Non-Statutory Executive Power;

  • Proportionality after McCloy;

  • Restrospectivity and the Rule of Law

The first of these topics in particular is associated with the work of the French court, while the second captures a key issue in the transition to the successor Kiefel court. More importantly:

The final session of the Conference provides a retrospective on the High Court under Chief Justice Robert French, with a special focus on Chapter III and the separation of powers.

Unsurprisingly, the day will encompass a host of High Court cases:

The cases to be discussed include: Re Culleton [No 2] (2017); Cunningham v Commonwealth (2016);… Murphy v AEC (2016); Plaintiff M68 (2015); P T Bayan Resources v BCBC Singapore (2016); Rizeq v Western Australia (2016); McCloy v New South Wales (2015); Assistant Commissioner Condon v Pompano Pty Ltd (2013); Wainohu v New South Wales (2011); Momcilovic v The Queen (2011); Kirk v DPP (2010); South Australia v Totani (2010) and International Finance Trust Co Ltd v New South Wales Crime Commission (2009).

Looking further ahead, 2018 will be the first time that the biennial Public Law Conference series (previously held in Cambridge) will be held in Australia, inevitably including a consideration of the French Court’s work. Former High Court judge Ken Hayne is a speaker at both conferences.

The website for the CCCS conference is here, while the one for the Public Law conference is here.

News: Bumper crop of special leave grants includes a sequel

After rejecting all written applications this session, the High Court granted seven applications in Friday’s twin oral hearings in Canberra. The grants include a direct sequel to a 2015 decision by the Court concerning an industrial dispute in Melbourne. As discussed in this post, the incident was a 2013 blockade of concrete trucks in Footscray at a site connected to the Regional Rail Link, seemingly led by Joe Myles, a CFMEU employee. Two years ago, the High Court ruled that the CFMEU, facing contempt proceedings for allegedly breaching an order barring such action, could be required to divulge telephone details that could link it to Myles. The contempt matter has since been settled and the CFMEU and Myles have admitted breaching the Fair Work Act in a parallel proceeding in the Federal Court. The new issue before the High Court concerns an unusual civil penalty that the Federal Court imposed on Joe Myles for his role in the Footscray incident.

The seven matters where leave has been granted this session are: Continue reading

News: High Court overrules 130 year-old criminal law precedent

In a decision this week, Aubrey v The Queen [2017] HCA 18, a 4-1 majority of the High Court overruled an 1888 decision of the Court of Crown Cases Reserved (a predecessor to England’s Court of Appeals), which had held that a man who gave his wife gonorrhoea could not be convicted of ‘inflicting’ harm. Holding that the English decision should not be applied to the case of Michael Aubrey, a NSW man convicted of maliciously inflicting grievous bodily harm by giving his sexual partner HIV in 2004, the majority said:

Granted, until this case, Clarence had not been distinguished or judicially doubted in New South Wales. It was assumed that proof of an offence against s 35 of the Crimes Act necessitated proof of a direct causing of some grievous physical injury with a weapon or blow…  It may also be accepted that the Court is ordinarily loath to overturn a long-standing decision about the meaning of a provision unless there is doubt about it, or to depart from the view of judges who, because of proximity in time to the passage of the legislation in question, were more aware of the reasons underlying the legislation. But that is not this case.

The majority listed nine reasons why Clarence should no longer be followed, including contrary pre-1888 authority, the lack of a single majority view in the case, two forceful dissenting judgments, subsequent discoveries about infection, the subsequent abandonment of the presumption of consent to marital sex and the more recent rejection of Clarence in England’s courts.

Few, other than people in a similar position to Aubrey himself, will mourn the death of Clarence. However, the majority’s approach to overruling that decision is an interesting contrast to the Court’s refusal last year to overturn its own little-loved decisions on complicity Continue reading

News: Forest challenge stumbles into a factual thicket

This week, the full bench of the High Court heard a challenge by ex-politician Bob Brown to Tasmanian laws giving police new powers to protect ‘workplaces’, including part of the Lapoinya forest where a logging operation has been occurring. Apart from its immediate political significance, the case is of enormous legal interest because the Court is being asked to revisit both ‘limbs’ of 1997’s Lange test on the operation of the Constitution’s implied freedom of political communication: what counts as a burden on the freedom (Tasmania argues that the new law cannot impose a burden on people who were, it claimed, already trespassers) and the test for when a law that burdens the freedom is invalid (some of the State parties have asked the Court to rethink the three-step proportionality test adopted by a bare majority of the Court in 2015’s decision on political donations.)

But these political and legal issues have long risked being sidelined by factual concerns. Continue reading

News: Four new criminal cases

The latest round of special leave determinations is notable for the attention the media gave to some refusals of leave. On Wednesday, the Court published a list of thirteen written refusals of leave. One, refusing Victoria’s Attorney-General leave to appeal Attorney-General v Glass (in her capacity as Ombudsman) [2016] VSCA 306  (where the Court of Appeal held that the Ombudsman can investigate a referral from the Legislative Council concerning entitlements) was reported with the headline ‘High Court delivers embarrassing blow to Andrews government‘, including criticism from the shadow Attorney-General of the challenge’s ‘scandalous waste of taxpayer dollars’. The Court’s disposition (published the next day) stated:

The application for special leave to appeal discloses no reason to doubt the correctness of the decision of the Court of Appeal of the Supreme Court of Victoria.

which does, perhaps, qualify as somewhat embarrassing. A second case, refusing leave from Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181, which held that misleading labelling on Nurofen warranted a penalty of $6M (as ‘the bottom of the appropriate range for the contraventions’), was widely reported, including internationally, through Associated Press under the headline ‘Australian court rejects British painkiller firm’s appeal‘. The disposition stated that ‘The decision of the Full Court of the Federal Court is not attended with sufficient doubt to warrant the grant of special leave to appeal’, which is perhaps a little less embarrassing than the disposition of the Ombudsman matter.

The wider significance of special leave determinations has always been hard to parse, as the Court’s reasons are not always about the merits of the appeal or the arguments made by either side and, anyway, they typically only represent the views of two of the Court’s seven judges. However, the Court’s shift to written determinations, while a welcome saving of (amongst others’) ‘taxpayer dollars’, have made it even harder to judge the flavour of any particular determination, because we no longer have access to clues that would appear i a transcript of the oral hearing about the arguments that were made by each side and the particular views of the judges about the merits and other issues. An extreme illustration is a matter granted leave on the papers on Thursday. Commissioner of the Australian Federal Police v Hart & Ors [2016] QCA 215, part of a decade-long saga of proceeds of crime litigation, is 1275 paragraphs (and nearly 130,000 words) long. Justice Morrison’s judgment begins with a 5-page overview detailing the three appeals dealt with (each with notices of contention), the seven common issues, the sixteen appeal grounds, eighteen determinations of general disputes and the eleven outcomes for particular assets – and his judgment turns out to be in dissent on a number of key issues! The High Court granted the Commonwealth leave in each appeal, but we don’t yet know what arguments they raised (and what notices of contention will  be raised.) We may get a hint when the transcript announcing the written determination s published, but otherwise we will have to wait until the next High Court bulletin (for a brief summary) or the parties’ submissions on appeal (for fuller details.)

Having noted these uncertainties, here are summaries of the four cases where leave was granted last week, all criminal and three from Queensland: Continue reading

News: Kiefel J’s last judgment, Kiefel CJ’s first

Yesterday’s two judgments mark the final step of the transition from the French Court to the Kiefel Court. Until this week, judgments published by Susan Kiefel have been attributed to ‘Kiefel J’, even though she has been Kiefel CJ since January 30th. In today’s two decisions, the first, Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12, has a joint judgment attributed to ‘Kiefel, Bell & Gordon JJ’, while the second, Kendirjian v Lepore [2017] HCA 13, has a solo judgment attributed to ‘Kiefel CJ’. The obvious explanation of the shift is that ‘Kiefel J’ is used for judgments where Susan Kiefel was still a mere Justice when she sat at the hearing. Ecosse was heard on 14th December last year, at a time when Robert French was still Chief Justice – he had six weeks left in the role – but by then he had not heard any cases for over two months and the Court had already held a ceremony to mark his retirement. By contrast, Kendirjian is the fifth case heard by the High Court since Susan Kiefel became Chief Justice, but the first to be decided.

So, what were the first ever words in a judgment by Kiefel CJ?:

I agree with Edelman J.

Continue reading

News: Kiefel CJ describes and defends her Court’s judicial method [updated]

The new Chief Justice of the High Court, Susan Kiefel, gave the 2017 ‘Supreme Court Oration‘ in Brisbane last week to a sell-out crowd. I dare say it is one of the most significant speeches a sitting Chief Justice has given, outlining in detail the High Court’s current process for producing judgments and responding to some criticisms of that Court’s approaches, including those of former High Court judge Dyson Heydon and current President of the NSW Court of Appeal, Margaret Beazley. The Australian Financial Review covered the speech as favouring ‘productivity over prose‘, and contrasted her approach to one-time law student favourite Lord Denning. The Chief Justice’s line:

I have always assumed it to be a universally held view that a judgment should be as succinctly stated as the matter allows.

has the potential to be her version of Dixon CJ’s famous, and much debated, pronouncement: ‘There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.’

The 12-page speech has far too much detail to cover in a short news post. However, one passage, explaining one reason she deprecates unnecessary separate judgments, caught my (and the Australian Financial Review‘s) eye: Continue reading

News: Three grants of leave

Last week’s special leave hearings broke a four-month drought in appeals granted special leave ‘on the papers’. There were three grants of leave announced, one on Wednesday (without a hearing) and one each on Friday’s two oral hearings in Brisbane and Sydney.

The three appeals that will now go to the High Court are:

  • Compton v Ramsay Health Care Australia Pty Ltd [2016] FCAFC 106, which concerns the circumstances when a person who a court previously held owed a debt and is now bankrupt can now argue that he didn’t owe the debt. In 2015, the NSW Supreme Court held that the respondent owed just under $10,000,000 [EDITED: see comments] to the applicant after guaranteeing a now bankrupt company’s debts, rejecting his argument that details of the debt were not attached to the papers he signed and that he wasn’t aware of them. After he went bankrupt and the applicant applied to sequester the debt (preserving it from the demands of other creditors), he submitted new financial evidence challenging whether the bankrupt company ever owed anything to the respondent. The Full Court of the Federal Court unanimously held that the trial judge should have opted to inquire into whether any debt was owed, even though the applicant never challenged the amount of the debt in the NSW Supreme Court.
  • Kennedy & Thorne [2016] FamCAFC 189, which examines the enforceability of binding financial agreements (colloquially known as ‘pre-nups’), where one party insists on the agreement as a pre-condition to marriage. The parties to a 2007 marriage differed in assets (none vs $18M),  Australian immigration status (a tourist visa vs Australian citizenship) and English fluency (little vs complete.) A week before they married, they signed an agreement prepared by the richer party’s solicitor, despite the poor party receiving independent legal advice that the agreement was ‘no good’ and (about a further agreement shortly after the marriage) ‘terrible’. Ruling after their 2011 separation and the richer spouse’s death in 2014, the Full Court of the Family Court overturned a trial judge’s finding that the agreement was the result of duress, holding that the trial judge failed to provide adequate reasons for the finding of duress and failed to make a finding of unlawful pressure (as opposed to a mere threat not to marry), instead holding that the agreement was binding on both parties.
  • Shop, Distributive & Allied Employees Association v ALDI Foods Pty Ltd [2016] FCAFC 161, concerns the process for approving a regional enterprise agreement with employees who are presently in a different region. After the majority of seventeen employees of Aldi who were offered roles in a new ‘region’ of the company’s operations (on the NSW/SA border) voted to approve an enterprise agreement and the agreement was approved by the Fair Work Commission, the union (which was not involved in the earlier agreement) challenged the agreement on three grounds. A majority of the Full Court of the Federal Court held that the agreement could not be approved because it failed a statutory requirement that ‘the agreement has been genuinely agreed to by the employees covered by the agreement’ – at the time of the vote, the new region had no employees. The same majority also held that the Commission failed to properly apply the requirement that the employees be ‘better off overall’, relying instead on a clause in the agreement that promised the employees equal (but not better) terms than the award. But the Court unanimously held that it could not invalidate the agreement because of a one-word deviation between the notice given to the employees and the required wording, because, to the extent that the different wording was important – something the three judges differed on –  the Commission’s failure to act on it was not a jurisdictional error.

News: The High Court splits three ways on three-way splits

Today’s decision in Perara-Cathcart v The Queen [2017] HCA 9 reviews a split decision in the Full Court of South Australia’s Supreme Court, which Gageler J’s judgment usefully describes with a table:

This combination raises a long-standing puzzle about the judgments of multi-member courts that have to decide two different issues in a particular case and manage to produce a three-way split. Continue reading

News: Four new criminal law appeals, including Van Beelen case

The Kiefel Court held its first oral special leave hearings on Friday morning. Last week, the Court ruled on several dozen written applications, dismissing them all. According to the High Court’s business list, a further seven matters were ‘TO BE HEARD IN CANBERRA AND BY VIDEO-LINK TO ADELAIDE AND TO SYDNEY’. However, on Thursday, the next day’s court list revealed, for the first time, that there would be two separate hearings at the same time, one in Canberra (hearing three applications, including two from Adelaide via video link) and the remaining four live in Sydney (rather than from Sydney via video link. [EDIT: Corrected. See comment below.]) It seems unlikely that anyone was put out by this late change of plans, but it is also unclear why it was not announced earlier.

The High Court granted leave in four matters, all of which relate to crimes or the criminal law. The four decisions appealed are: Continue reading

News: New High Court Robes

During Kiefel CJ’s ceremonial sitting to mark her investiture as Chief Justice (recorded here), it is noted that she had particular involvement with the design of the new High Court robes. She was also apparently pivotal in designing the Federal Court robes, and commissioned theatre designer Bill Haycock to design them. Haycock was subsequently also asked to redesign the High Court robes.

I confess to having a crafty streak, although I am no weaver – drawing, writing and knitting are more my cup of tea.

I was delighted by this blog post, by Kay Faulkner, the weaver responsible for the sleeves for the new High Court robes. Please do read it all in detail if you want to know about the process of creating the robes. The material is handwoven, and exquisite. The pattern of the sleeves were designed to resemble the ripples left by waves on sand. It is fascinating to look at the way in which the various parties worked together and created these beautiful robes. Delightfully, everyone took a turn at weaving the final thread on the fabric.

After reading this post, I watched the video of Kiefel CJ’s investiture with a different understanding of the care which had been taken to make those robes.

News: ACs in the HCA

This has undoubtedly been a busy week for the High Court’s website manager, with multiple changes to incorporate, including moving Kiefel J to Chief Justice and inserting Edelman J in the current justices list, and removing French CJ from the current justices list – he is now at the end of the Former Chief Justices list. A further change, also visible on the Court’s ‘About the Justices’ page, as to add ‘AC’ to all mentions of Gageler J:

As this image shows, the photo of the seven judges has not yet been updated (though French CJ is blocked by the drop-down menu.) Presumably, the Court is waiting for the first occasion when the seven current judges sit together (probably Thursday’s hearing of Rizeq v Western Australia, concerning the application of the constitutional right to a jury in state prosecutions involving non-state residents.)

Amidst the excitement of Kiefel CJ and Edelman J’s new judicial roles, Gageler J’s entry into the General Division of the Companion of the Order of Australia,  five years after his appointment to the High Court, has received little attention. Continue reading

News: Kiefel CJ’s swearing in by Bell J

The swearing in of Justice Kiefel as the Chief Justice of the High Court of Australia was major news throughout Australia, and rightly so. But, as Professor Adrienne Stone pointed out on twitter, the Australian Financial Review fluffed its reporting:

The photo the Fin used was from Kiefel J’s swearing in as a High Court judge in 2007. On Monday, Kiefel CJ was sworn in by the High Court’s next most senior judge, Bell J, arguably adding to the groundbreaking nature of the event from a gender perspective.

Without letting Fairfax off the hook, I have noticed that there don’t seem to be any photos online of Bell J swearing in Kiefel CJ anywhere. Continue reading

News: Testimony in the High Court

Here’s something you don’t often read in High Court transcripts:

HER HONOUR: Come into the witness box please, Mrs Smith. Do you wish to take an oath or an affirmation?
MRS SMITH: An oath.
DEBRA KIM SMITH, sworn:
HER HONOUR: Have a seat please, Mrs Smith, and pour yourself a glass of water if you would like one.
THE WITNESS: Thank you.

Debra Smith was testifying before Gordon J as part of litigation about the validity of former Senator Bob Day’s election last year. The final case’s hearing will be held in the second week of February before the full High Court (with Susan Kiefel as Chief Justice and James Edelman newly on the bench.) This week’s hearing is a preliminary one to resolve some factual disputes, the result of an order made by French CJ in November:

10. If the parties have been unable to agree by 22 December 2016 a statement of all the facts and documents which are relevant to the reference, the hearing and determination of the facts will be heard by a single Justice at a date to be fixed with a view to a referral to the Full Court thereafter.

The parties agreed on most issues, but not all of them. According to a ruling by Gordon J last week:

Notwithstanding that agreement, Ms McEwen sought, and continues to seek, additional findings of fact. The additional facts are directed to three separate issues: Mr Day’s interest in the lease with the Commonwealth (“Issue 1”), Mr Day’s statement and declaration in nominating for the Senate in 2016 (“Issue 2”) and distortion of the vote (“Issue 3”).

At Monday’s hearing, two witnesses, Debra and her husband John, both acquaintances of Senator Day and his building company, testified on the first issue and were cross-examined by Day’s counsel.

Witness evidence before the High Court, while unusual, is not unprecedented. Continue reading

News: New special leave procedures affect injunction practices

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? Continue reading

News: French Court averaged 50 substantive judgments per year

The High Court’s 2015/2016 annual report states (as every annual report has for the past decade) that:

the numbers of Full Court hearings and decisions in 2015–16 were comparable with averages for both during the past 10 years.

However, as noted here last year, the number of published judgments in 2014 (49) and 2015 (53)  were among the fifteen lowest in the High Court’s history. With three judgments released today, 2016 equals 2015’s number of published judgments.

As previously noted, counting High Court judgments is not straightforward, because of changing practices in judgment publication (notably past courts’ willingness to issue lengthy substantive judgments on special leave applications.) The judgments published by the High Court typically include some minor judgements – single judge decisions and interlocutory rulings – that seemingly reflect publishing preferences in individual judges. This year, there were four such judgments, leaving 49 substantive judgments in 2016, one more than each of the last two years. The final counts of substantive judgments for the French Court are: Continue reading

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: Continue reading

News: High Court forms must now include the Queen’s name

The  High Court Amendment (2016 Measures No. 2) Rules 2016 were published on December 6th this year and took effect on December 9th. The amendments, presumably the final ones from the French Court, include new forms for arrest warrants, committal warrants, subpoenas and writs. For the first time since 2004, those forms must include the following words:

ELIZABETH THE SECOND, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth

These are the exact same words that were once required by the 2004 rules’ predecessor. As noted here, these amendments were prompted by a question from Senator Rod Culleton to Attorney-General Brandis, who pointed out that the previous version of the rules did not require that such forms comply with  s. 33 of the High Court of Australia Act 1979:

All writs, commissions and process issued from the High Court shall be:
(a) in the name of the Queen…

Even if Senator Culleton’s election is held to have been invalid by the Court of Disputed Returns, he will have had an impact on the statute book and the High Court that is rare indeed for a minor party Senator.

News: French CJ’s last words

Quote

In Wednesday’s ACCC v Flight Centre Travel Group Limited [2016] HCA 49, concerning whether Flight Centre breached competition laws by seeking a deal with some airlines not to undercut its prices, French CJ’s separate judgment concludes:

In my opinion, Flight Centre was not in competition, in any relevant market, with the airlines for which it sold tickets. Its proposals with respect to the pricing practices of its principals were not proposals offered by it as their competitor but as their agent. I would dismiss the appeal with costs.

These are very likely French CJ’s last words in a court judgment. He did participate in a second judgment on Wednesday, seconds after the ACCC one, but that was a joint judgment with (as is often the case) Kiefel, Bell & Keane JJ, and (as is always the case) no indication of who wrote it. (Austlii’s earliest judgment by French J appears to be this one.) As French CJ has no more reserved judgments (having stopped hearing cases in early October), his only possible remaining judgments would be chambers or special leave matters. His remaining duties on the Court until his resignation on 29th January next year will be almost entirely administrative or ceremonial.

Wednesday’s ACCC judgment was unusual for the outgoing Chief Justice in another respect. Continue reading

News: An Interruption in the Court of Disputed Returns

This week, the United Kingdom’s and Australia’s apex courts each held hearings that touch on recent votes in each country. The UK Supreme Court’s Brexit case (on whether triggering the UK’s exit from the EU is a matter for parliament or just the executive) is broadcast live on the Court’s website. The High Court’s Culleton hearing (where the Court of Disputed Returns will determine whether the WA One Nation Senator was disqualified by a since annulled conviction for larceny) can now be viewed on the Court’s AV archive, albeit not live. One difference that seemingly follows from this is that the video record of the Court may be incomplete. A possible example is an incident at the hearing described in The Guardian as follows:

The high court hearing into Rodney Culleton’s eligibility as a senator was interrupted by a One Nation member who labelled it a “star chamber” and “kangaroo court” after Culleton lost a bid for an adjournment. The dramatic interjection was made by member John Wilson, without Culleton’s knowledge. The senator’s chief of staff, Margaret Menzel, then remarked “he’s right” and his wife Ioanna Culleton said “at least someone has the guts to stand up [and say it]” as Wilson was asked to leave the court room.

I have been unable to locate this incident on the video recording of the hearing that appeared on the High Court’s website yesterday afternoon. Interestingly, though, there appears to be an unexplained, and unsignposted, break in the recording just after the 36 minute mark, immediately after Kiefel J says the words ‘We will now proceed to hear the substantive argument.’ You can see it most clearly by watching Keane J’s hands.

As noted in an earlier post, interruptions in apex court proceedings, usually as a form of political protest, are nothing new. However, video recording of hearings is a recent phenomenon in the High Court. If it is correct that the interruption and other events described in the media indeed occurred in the above break, then it appears that the Court may have an unannounced policy to remove these events from thevideo  record.  Continue reading

News: Congratulations James Edelman, new High Court Judge

I was particularly delighted to hear of James Edelman’s recent appointment to the High Court of Australia, as he is a friend and former academic colleague. Indeed, his book based on his PhD thesis, Gain-Based Damages: Contract, Tort, Equity and Intellectual Property was the inspiration for my own PhD thesis.

Edelman J’s list of achievements are impressive: degrees in law, economics and commerce, a Rhodes Scholarship, a BCL and a DPhil from Oxford, a Professorship at Keble College, Oxford, followed by an appointment to the Supreme Court of Western Australia in 2011 and an appointment to the Federal Court in Queensland in 2015. He has numerous publications in the area of private law, and a keen interest in theoretical scholarship.

We extend our warmest congratulations to him and to our new Chief Justice, Susan Kiefel.

News: The Kiefel Court

Today’s news, as welcome as it is unsurprising, officially confirms that the next High Court will be the Kiefel Court. Here are some features of the new Court that will commence on 30th January 2017:

  • Susan Kiefel, age 63, appointed by Howard government until 17th January 2024
  • Virginia Bell, age 65, appointed by Rudd government until 7th March 2021
  • Stephen Gageler, age 58, appointed by Gillard government until 5th July 2028
  • Patrick Keane, age 64, appointed by Gillard government until 26th October 2022
  • Geoffrey Nettle, age 66, appointed by Abbott government until 2nd December 2020
  • Michelle Gordon age 52, appointed by Abbott government until 19th November 2034
  • James Edelman, age 43, appointed by Turnbull government until 9th January 2044

With Edelman J ( a Supreme Court judge later Federal Court judge, from WA) replacing French CJ (previously a Federal Court judge from WA, appointed by the Howard government), the Court’s diversity in appointing party, gender, geography (alas for South Australia) and prior positions remains unchanged. However, Edelman J is the Court’s first appointee born in the 1970s, just as Gordon J before him was the Court’s first appointee born in the 1960s.

Assuming no early resignations, these are the last new appointments to the High Court for four years. The next (or so) Prime Minister  will then have the opportunity to replace Nettle J and Bell J in quick succession in 2020/1, followed by Keane J in 2022. If Kiefel CJ stays for her full term, then the next most senior judges will be Gageler J, Gordon J and Edelman J. As  Gageler J will have only four years remaining on the Court (although Brennan CJ was appointed in similar circumstances), a Gordon Court from 2024-2034 and an Edelman Court from 2034-2044 would be a solid bet.

News: Bell Group case led to Attorney-General and Solicitor-General rift

It is no secret that relations between Attorney-General George Brandis and Solicitor-General Justin Gleeson were “irretrievably broken” when Gleeson resigned as Solicitor-General in October this year. However, it has now been revealed that there may have been a High Court connection to the rift: it has been reported today that the ever-sprawling, never-ending Bell Group case may have led to the difficulties between the pair.

As I noted earlier this year, the Bell Group case looked to have settled in 2013, but the Western Australian government’s attempt to distribute the settlement funds via a statutory scheme was struck down by the High Court in May in Bell Group N.V. (in liquidation) v Western Australia [2016] HCA 21. The ATO was a major creditor who would have lost out had the Western Australian legislation been held to be valid.

The West Australian reports that Brandis had apparently made a deal with the Western Australian government that the legislation would not be challenged, and that Brandis instructed Gleeson not to run a particular argument in the May case. It was reportedly Gleeson’s refusal to comply with this which led to the rift. Continue reading

News: Ten new grants of special leave

Senators’ queries and qualifications aside, the High Court is having a quiet month, perhaps in part because some pending matters have been shifted to February when the Court will again have seven functioning judges. The Court finished off all of this month’s full court hearings in a single week and also announced orders settling or partly settling matters where special leave had been granted (in cases concerning migration, sentencing and advocates’ immunity.) At the same time, there has been a bumper crop of special leave grants this month, two on the papers last week, a spectacular five out of six applications granted in Wednesday’s oral hearing and three at today’s oral hearing.

All up, ten new cases will eventually be heard on appeal: Continue reading

News: Senator Culleton says he will not attend Court of Disputed Returns hearing

A week ago, the High Court published notices on its webpage that it will sit as the Court of Disputed Returns in relation to Senators Bob Day and Rob Culleton. The notices state:

Any person who desires to place any evidence before or make any submission to the Court should apply to the Court by email addressed to Senate.Reference.[Day/Culleton]@hcourt.gov.au by 12:00noon (AEDT) on Thursday 17 November 2016 setting out the reasons why they should be granted leave to appear before the Court. The Court may determine such application on the papers or invite the person to appear and make oral submissions to the Court in Canberra (or by video-link if required) at 11:30am (AEDT) on Monday 21 November 2016.

The apparent purpose of this hearing is to determine who will be a party to the Senate’s reference of these matters, in accordance with s378 of the Commonwealth Electoral Act:

The Court of Disputed Returns may allow any person who in the opinion of the Court is interested in the determination of any question referred to it under this Part to be heard on the hearing of the reference, or may direct notice of the reference to be served on any person, and any person so allowed to be heard or so directed to be served shall be deemed to be a party to the reference.

However, The Guardian reports that Senator Culleton will not attend, physically at least:

On Wednesday Culleton told Guardian Australia he did not intend to appear, nor to send a legal representative, but he would represent himself “in spirit” at the directions hearing.

Presumably, though, the Court of Disputed Returns will ‘direct notice of the reference to be served on’ Senator Culleton, who will then be deemed to be a party.

Senator Culleton lists several reasons for not attending on Monday. Continue reading

News: Delay anticipated in High Court challenge to Senators

Eagle eyed readers of the UK Supreme Court’s twitter page will notice a couple of contrasts to the High Court of Australia:

 

First, the United Kingdom’s apex court is on Twitter; Australia’s High Court is yet to enter the modern world of social media. Second, the Court’s twitter stream actually replies to public queries, including confirming @aforlonehope’s query that the coming 11-judge Brexit hearing will make UK procedural history. Third, up until now, the UK’s apex court has never held a hearing that involves all of the courts’ judges.

While most major hearings in Australia’s High Court involve five of the Court’s seven judges, the Court typically sits ‘en banc’ – i.e. with all of its seven judges – for all constitutional cases and occasionally for other significant cases. Continue reading

News: Senator Culleton’s ‘dark cloud hanging over the High Court’

Those interested in federal politics have spent the past couple of days pondering the possibility that two senators elected at the recent election were disqualified on various grounds and the possible outcomes of proceedings in the High Court potentially raising those matters. One of those senators, One Nation’s Ron Culleton, gave an interview yesterday, which reportedly included the following statement:

Under Section 33 of the constitution, writs need to be named in the name of the Queen and that clearly hasn’t been happening. So when the media jumps on this and say there’s a dark cloud myself, I would say there is a dark cloud hanging over the High Court. Until the answer comes back (advice from the Senate), I’m not sure I’m going to participate in any High Court jurisdiction. If I do, I will represent myself.

Those following up on this statement would soon discover that s. 33 of the Constitution refers to writs, but not ones from the High Court:

Whenever a vacancy happens in the House of Representatives, the Speaker shall issue his writ for the election of a new member, or if there is no Speaker or if he is absent from the Commonwealth the Governor-General in Council may issue the writ.

Section 33 is actually concerned with casual vacancies in the House of Representatives (which are resolved by by-election.) Vacancies in Senator Culleton’s upper house are dealt with by s. 15 of the Constitution, which makes no mention of writs (as such vacancies are filled by state parliaments.) Neither constitutional provision includes any requirement that process should be in the name of the Queen.

However, it is likely that Senator Culleton was actually referring to s. 33, not of the Constitution, but of the High Court of Australia Act 1979:

All writs, commissions and process issued from the High Court shall be:
(a) in the name of the Queen;
(b) under the seal of the Court…; and
(c) signed by… the Chief Executive and Principal Registrar…

In fact, Senator Culleton’s first parliamentary question, a week after an action was filed against him, concerned this very section: Continue reading

News: Vic CJ proposes Australian Court of Appeal

At this year’s national conference of the Australian Bar Association, Victorian Chief Justice Marilyn Warren, after outlining the success of Victoria’s Court of Appeal in finalising civil appeals, provocatively added:

Now taking the local level of excellence, of course it extends across the national superior courts. So what opportunities arise to market that collective excellence? An opportunity that lies before all of us as the collective superior courts of Australia is to contemplate a national appellate court.

Of course, Australia already has a national appellate court, the High Court of Australia, which, unlike the Supreme Court of the United States, can hear appeals from any Australian court on any subject. Why, therefore, call for a second national appellate court? Warren CJ gives three related reasons. Continue reading

News: Another NSW-Vic schism amongst special leave grants

It is always hard to predict the outcome of special leave applications, but one category of appeal comes close to a certainty: cases where Australian courts have divided on the meaning of a single, important statute. Earlier this year, the High Court (in a divided decision of its own) entered into a key dispute between the NSW and Victorian courts about the meaning of Australia’s ‘uniform’ evidence law, and last month the Court took on a case dealing with a second dispute between those courts about that law. Last week, the Victorian Court of Appeal decided not to follow the NSW Court of Criminal Appeal on the precise role of guilty pleas in federal sentencing, guaranteeing that the issue will reach the High Court soon. This month, the sole grant of leave ‘on the papers‘ was a pair of cases where the NSW and Victorian courts reached different views on the fault element of federal drug offences.

The Court’s new process continues to be unpredictable. For the first time since the process began, the Court held two oral hearings – these were held, unusually, in separate weeks, and yielded five more special leave grants. The Court’s written dispositions refusing leave continue to be very uninformative. One exception was the Court’s refusal of a NSW criminal appeal, which included the Court’s view that the NSW Court of Criminal Appeal was right to apply the High Court’s House ruling (requiring an error of law before a decision can be reviewed) to a trial judge decision; alas, the NSW case is (for now) suppressed, so the public is none the wiser about the nature of this ruling. Chief Justice French continues to play no role in the Court’s written dispositions, but participated in (at least) the first oral hearing.

The six matters where leave was granted are appeals from the following decisions: Continue reading

News: Re-reading Monis v the Queen

The High Court’s judgment, Monis v The Queen [2013] HCA 4, concerns the meaning and validity of the federal government’s ban on offensive postal communications. However, the case is known for many more things: the extremity of the communications sent by the defendants to bereaved families condemning the deceased’s involvement in military operations; the rare evenly divided High Court ruling, upholding the NSW Court of Criminal Appeal’s dismissal of the defendants’ pre-trial challenge to the statute’s constitutionality; Justice Dyson Heydon’s final judgment, quoting Kipling’s My Boy Jack and condemning the implied freedom of political expression as he applied it (one of the ‘great dissents’ nominated in Andrew Lynch’s edited collection); later accusations against the defendants of much more serious crimes; and, finally and most dramatically and sadly, Man Haron Monis’s killing of two people (and his own death) during the siege of Martin Place’s Lindt Cafe.

It is not surprising that the case continues to draw academic attention. The latest instance is an entire book devoted to the case. Continue reading

News: “The Castle in reverse”, a coda to DPP (Cth) v Poniatowska

A sad coda to the High Court’s decision in DPP (Cth) v Poniatowska emerged recently. Malgorzata Poniatowska has had two major litigation successes, but each has been followed by setbacks. Her first success, obtaining a historic payout for sexual harassment from her former employers in a building consultancy, was followed by her prosecution for fraud charges for allegedly failing to inform Centrelink of the commissions she earned from that consultancy. Her second success, obtaining a landmark ruling from the High Court quashing her conviction (together with many other social security prosecutions), was soon followed by a negative story on Channel 7’s Today Tonight:

Matt White: First, this evening, a legal landmark in the High Court has forced Centrelink to close a loophole that will allow people to claim welfare they shouldn’t get. An Adelaide woman has shot down Centrelink, avoiding prosecution for claiming $20,000 in single parent benefits she wasn’t entitled to. As David Richardson reports, it’s a case that has shifted the goal post, and sent the government back to the drawing board.
Reporter: Every year, Centrelink goes hunting for cheats – 4 million entitlements reviewed, 640,000 payments reduced, 3400 cases convicted. They don’t miss much – until today.
Warren Moore: Instead of the average person being the winner, you’ve got one woman taking money from the average taxpayer.
Reporter: Meet the cheat who got away: she confessed to defrauding them, then she beat them.

She responded by suing Channel 7 for defamation and, recently, lost, badly.

Continue reading

News: ‘Hey Dad!’ case one of six special leave grants

The High Court’s August round of special leave deliberations has yielded six grants of leave to appeal, following a very slow start:

  • Wednesday 24th: None out of 3 applications granted (on papers, Bell & Keane JJ)
  • Thursday 25th: None out of 7 applications granted (on papers, Nettle & Gordon JJ)
  • Tuesday 30th: None out of 8 applications granted (on papers, Bell & Gageler JJ)
  • Wednesday 31st: None out of 6 applications granted (on papers, Bell & Keane JJ)
  • Thursday 1st: 3 out of 21 applications granted (on papers, 7 Kiefel & Keane JJ (no grants),  7 Kiefel & Nettle JJ (1 grant), 7 Gageler & Gordon JJ (2 grants))
  • Friday 2nd: 3 out of 7 applications granted (oral hearings; 4 Kiefel & Nettle JJ (2 grants), 3 Gageler & Gordon JJ (1 grant)). (There was also a further matter where leave was granted and the appeal allowed, by consent of the parties.)

As usual, French CJ did not decide any special leave matters. As per recent practice, the pairs of judges assigned are no longer always geographically connected. One interesting development is just two pairs of judges were responsible for all six grants (both written and oral), with Gageler  & Gordon JJ responsible for all the criminal grants and Kiefel & Nettle JJ responsible for all the civil grants. There also appears to be a slight increase in information included with the refusals, for example Bell & Gageler JJ’s refusal of leave to Matthew and Elizabeth Pallet, campaigners in favour of medical cannabis, which indicates that their unsuccessful argument was a constitutional challenge to Victoria’s drug laws.

The six cases in which grants were made are: Continue reading

News: Claim Baden-Clay judgment sets a ‘massive precedent’

R v Baden-Clay [2016] HCA 35 is one of the High Court’s most-watched judgments, at least by non-lawyers. Indeed, this morning’s announcement of the Court’s orders in its Canberra premises was live-blogged on at least two Brisbane websites, so readers at home knew of the outcome some 15 minutes before the Court posted its judgment summary on its website. The rather brief proceeding (including other judgments and a hearing in a current appeal) was attended by friends of Baden-Clay’s victim, who told the media:

The law has acknowledged what we, who were closest to her, knew from that very morning Allison went missing — that is — that she was murdered… Today’s decision brings an end to Gerard’s attempts to smear Allison’s name. If some were in doubt as to his true nature, his behaviour after Allison disappeared and during the trial must have removed that doubt.

All of these matters were established by the jury’s verdict, but in Australia’s criminal justice system, appeal courts can sometimes second-guess the jury. In today’s judgment, the High Court firmly second-guessed the Queensland Court of Appeal’s second-guessing and also closed off all regular avenues for future second-guessing in the courts.

But some lawyers commenting on the decision have attributed more to today’s decision. Baden-Clay’s lawyer told the media: Continue reading

News: High Court rejects challenge to Australia’s common law of complicity

Today, a 6-1 majority of the High Court upheld a 6-1 majority decision of the same court a decade ago to not revisit a unanimous decision of the same court 21 years ago, whose effect is eloquently described in Gageler J’s judgment as follows:

Three men set out to rob a bank. They adopt a simple plan. One of them, the driver, is to wait in the car. The other two are to enter the bank. One is to wave a gun. The other is to put the money in a bag. The two who enter the bank encounter a security guard. The gunman shoots him and he dies. Who of the three is liable for murder? The traditional answer of the common law is that the criminal liability of each depends on the intention of each. The gunman is liable for murder if he shot the security guard intending to cause death or grievous harm…. But what if shooting to kill or cause grievous harm was never part of the plan? The gunman went too far. The gun was not meant to be loaded. The gun was meant only to frighten….  The common law has of late given a different answer. The bagman and driver need not have intended that the gunman would shoot to kill or cause grievous harm as a possible means of carrying out the plan to rob the bank. It is enough for them to be liable for murder that they foresaw the possibility that the gunman would take it upon himself to shoot to kill or cause grievous harm and that they participated in the plan to rob the bank with that foresight.

Whereas the Privy Council and the Supreme Court of the United Kingdom ruled that the ‘common law of late’  was a ‘wrong turn’, the High Court today disagreed. Continue reading

News: Vale James Merralls AM QC

We were deeply saddened at Opinions on High to read of the death of Mr James Merralls, AM QC, editor of the Commonwealth Law Reports for the last forty seven years. The High Court issued a press release celebrating the considerable achievements of Mr Merralls:

Mr Merralls was the editor of the Commonwealth Law Reports, the authorised reports of the decisions of the High Court of Australia, for 47 years commencing in 1969. His unsurpassed period as editor was one of great public service to the Court, the profession and to the administration of justice in Australia. The high standard of his work as editor has been publicly acknowledged by two former Chief Justices of the Court, Sir Anthony Mason and Chief Justice Murray Gleeson. Mr Merralls, who served as an associate to another Chief Justice of this Court Sir Owen Dixon, rose to become a leading member of the Victorian Bar with a national reputation. He will be greatly missed.

I first came to know Mr Merralls after I sat next to him at a conference lunch about four years ago, although I had already known of him by reputation while in practice and when working at the Victorian Supreme Court. He was a polite and humble man who always stopped to say hello when he saw me; a gentleman. To my delight, it became evident that he was a reader of this blog, and he would engage me in debate about posts.

Mr Merralls’ humility did not stop others from recognising his considerable skills, and in 2013, he was awarded an Honorary Doctorate in Laws by the University of Melbourne. Then, in 2014, a Visiting Fellowship in Law was established at Melbourne Law School in Mr Merralls’ honour.

We extend our deepest condolences to Mr Merralls’ wife and children.

News: Former High Court judge rules on high profile NZ murder case

In a report published on Tuesday, former Australian High Court judge Ian Callinan found that New Zealander David Bain ‘has not proved on the balance of probabilities that he did not kill his siblings and his parents on the morning of the 20th of June 1994.’ While the judge’s career since leaving the High Court in 2007 has been characterised by government-commissioned reports (as well as sitting on an International Court of Justice dispute between Australia and East Timor), this is surely the first occasion that a retired High Court judge has played the role of judge of fact in a murder case. The Bain case, which turns on the question of whether David Bain shot his parents and three siblings at an isolated farm near their house in Dunedin (for no known motive), or whether Bain’s father committed a murder-suicide (possibly fearing revelations of abuse of his only youngest daughter) while his eldest son was on a paper run, has long divided New Zealanders. Remarkably, it has also been the subject of three controversial interventions by overseas judges. Continue reading

News: 5 new appeals under amended High Court Rules

On 1st July, amendments to the High Court’s rules took effect, including an all new Part 41 on special leave applications. Amongst other changes, the new rules consolidate the application for leave and the summary of argument into a single document (effectively halving the time for lodging all the documents from 56 days to 28 days, and subjecting the totality to a single page limit) and omit existing separate rules on unrepresented applicants and oral arguments in favour of a single rule permitting ‘any 2 justices’ to determine any applicants without an oral hearing.The explanatory memorandum states that ‘[c]onsultations on the changes have taken place with relevant professional organisations and the Special Committee of Solicitors-General.’

One result of the new rules is that there is no longer any public indication as to whether a particular applicant for special leave was represented or unrepresented (as all applications are now determined under new rule 41.08.1.) Rather, all we know is that there were:

  • 32 matters determined without a hearing (2 grants, 30 rejections), heard by Nettle & Gordon JJ (10 matters), Gageler & Gordon JJ (5 matters), Kiefel & Keane JJ (7 matters), Kiefel & Nettle JJ (4 matters) and Bell & Gageler JJ (5 matters), shaking up the previous wholly geographical pairings of judges. French CJ continues to play no role in these determinations.
  • 8 matters determined with a hearing (4 grants, 4 rejections), held in Brisbane (even though none of the matters heard were from Queensland.)

Although the Court’s  2016 calendar describes today is a ‘special leave date’,  no leave applications seem to be listed for determination today. Under the Court’s new approach, dedicated special leave dates are becoming a thing of the past, as, increasingly, are Court sittings in Australia’s two largest cities.

The five judgments that will now be reviewed in the second half of this year by the apex Court are: Continue reading

News: What happened after Smith v WA [2014] HCA 3?

In Smith v WA [2014] HCA 3, the High Court unanimously ordered the Western Australian Court of Appeal to reconsider an appeal by a man who sought to have his conviction for indecent dealing with a child set aside because of a note found in the jury room after the verdict that stated ‘I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote. This has made my ability to perform my duty as a juror on this panel’. The High Court held:

The shadow of injustice cast on the verdict by the note cannot be dismissed on the basis that the note itself and the paucity of evidence of its provenance are insufficient to create a suspicion that, as a matter of fact, the author of the note was overborne in the performance of his duties as a juror.

The Court observed that the identity of the author could be readily discerned, the note’s true meaning could be readily resolved by asking the author, that a wide-ranging and intrusive inquiry would not ‘necessarily’ follow and that the practicality of any inquiry, given the time since the early 2012 trial, is a matter for the Court of Appeal. Nearly two-and-a-half years later, a judgment published today by the WA court reveals how these predictions played out and how the appeal stands (for now.) Continue reading

News: Latest special leave cycle yields five new appeals

The past month has produced five grants of special leave, as follows:

  • 25th May (non-oral): 2 grants, no refusals (Nettle & Gordon JJ)
  • 9th June (non-oral; 8 unrepresented matters, 1 represented): no grants, 9 refusals (Nettle & Gordon JJ)
  • 15th June (non-oral; 11 unrepresented, 10 represented): no grants, 21 refusals (Kiefel & Keane JJ)
  • 17th June (non-oral, 6 unrepresented, 4 represented, 1 unknown): 1 grant, 10 refusals (Bell & Gageler JJ)
  • 17th June (oral): 2 grants, 4 refusals

This month continues the previous trend of non-oral matters being divided amongst three pairs of geographically linked judges, i.e. the Victorian judges (Nettle & Gordon JJ), the Queensland judges (Kiefel & Keane JJ, who received a double load this month) and the NSW/ACT judges (Bell & Gageler JJ), with French CJ again not participating in any non-oral leave matters. Presumably, these pairings suit practical arrangements within the Court, but they also potentially skew leave grants, to the extent that these various pairs see things eye to eye more than other pairs (or French CJ.) The oral matters continue to also be heard by pairs of judges (rather than three, as might be expected if two judges had previously disagreed on the written merits), but the oral pairs don’t match the non-oral ones. This month also sees the Court’s listings all referring to ‘matters for determination’, rather than for publication of reasons or not, and hence no longer indicating results in advance of the Court’s sittings.

The five matters granted leave to appeal are as follows: Continue reading

News: Wigs in the High Court

At the start of this month, the judges of Victoria’s Supreme Court all stopped wearing wigs. A similar (but broader) decision was made by the High Court in 1988:

As of today, Tuesday, 2 August, the Chief Justice and Justices of the High Court of Australia will wear black gowns when sitting in court instead of the traditional attire of a robe, jabot and wig.

While the Victorian decision was a statutory determination by the state’s Chief Justice, the High Court’s decision was not made under any statute and involved no new rules or practice directions; the Court’s seven judges simply all entered the courtroom wigless, as Murphy J and (for a time) Starke J had individually decided in the past. The Court’s press release was careful to disclaim any implications for other Australian courts:

This decision is not intended to establish a model for other courts. The fact that the High Court is a constitutional and appellate court and not a trial court has been significant in the decision to alter the dress. Different considerations may well apply to other courts. The nature of their work, particularly that of trial courts, differs from that of the High Court.

By contrast, in the case of barristers’ wigs, decisions by other Australian courts, including this week’s direction from Victoria’s common law division that barristers appearing there must do so without wigs, can directly affect what barristers wear in the High Court.
Continue reading

News: Bell Group litigation – harder to kill than a Hydra

In September 2013, it appeared that the Hydra had finally been slain: the long-running, complex and expensive Bell Group litigation had settled just before the hearing of an appeal to the High Court. However, just like the Hydra of myth, it appears that where one head of litigation is cut off, at least one other will grow. The High Court has just ruled in Bell Group N.V. (in liquidation) v Western Australia [2016] HCA 21 that the Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 (WA) (‘Bell Act’), under which the $1.7B settlement sum was sought to be distributed, is constitutionally invalid. The legislation was rushed through the Western Australian parliament last year, but last-minute amendments made in April this year were insufficient to save it. It seems likely that the Bell litigation will continue, as litigation had previously been both threatened and commenced after settlement and prior to the enactment of the Bell Act.

Attribution: Wolfgang Sauber

Attribution: Wolfgang Sauber

Continue reading

News: Uber’s legality turns on 1929 High Court decision

Wednesday’s ruling by Victoria’s County Court quashing the conviction of an Uber driver in a test prosecution has been reported as confirming the legality of the Uber X service in Victoria, avoiding the need for drivers and vehicle owners to obtain expensive commercial licenses. A curiosity of this week’s ruling is the role of,a High Court decision on the Uber X of 1929 Victoria (and the first ever High Court judgment of Justice Owen Dixon.)

In Blyth v Hudson [1929] HCA 3, the High Court considered the legality of a transport service from Geelong to Melbourne. The driver, George Hudson, who had been refused a commercial licence to operate a ‘motor omnibus‘ – a service for ‘carrying passengers for reward at separate and distinct fares for each passenger’ – struck a deal with the Geelong Motor Tourist Bureau, which arranged for shopkeepers to sell tickets for his service and then pay him a lump sum to drive anyone who showed up with a ticket. When he was prosecuted by William Blyth (the Country Roads Board’s Chief Inspector,) Victoria’s Supreme Court ruled that the definition of motor omnibus should be read strictly so that it didn’t cover fares paid to intermediaries, but the High Court (including Dixon J) disagreed, prophetically emphasising the need for flexibility to effectively regulate a fast-changing sector of the economy: Continue reading

News: New special leave process yields five new appeals

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. Continue reading

News: Court accused of undermining suppression order

Sunday’s Northern Territorian included the following story (HT: Twitter @dunlop_craig):

THE High Court has published, and later removed, a document which bares the name of an alleged Northern Territory paedophile, whose identity is the subject of an NT Supreme Court suppression order. The document, a case chronology, was downloaded repeatedly by the NT News last week, but was switched out with a redacted version late on Saturday night, around the time inquiries were sent to court staff.

The NT News states that the case was IMM v R, a very significant ruling on Australia’s uniform evidence law where the Court issued a complex judgment last week. Like most High Court evidence law cases, the facts involved alleged child sexual abuse and the adult defendant’s name was most likely suppressed to protect the identity of the complainant. That being said, the Court did not suppress the man’s name when the case was initially listed for a special leave hearing and the court list for that day (which is still hosted by the Court but not hyperlinked from the Court’s website) still contains his surname. [EDIT: see the first comment below.]

The ‘chronology’ mentioned in the report is likely to be the one supplied by the appellant and published (now without the defendant’s name) by the Court on its website here. Continue reading

News: Reading the special tea leaves

We are now nearly two months into the High Court’s new process for determining special leave applications. Pending a fuller review after Friday’s hearings, a potential pattern has emerged that may reveal, a day in advance of the Court’s formal ruling, whether cases that have been listed for orders without an oral hearing will be granted special leave. If correct, then that means that there is a sign this evening that special leave will be granted tomorrow morning in the high profile appeal by Queensland prosecutors against an appellate ruling by that state’s Court of Appeal reducing Gerard Baden Clay’s conviction for murder to manslaughter. Continue reading

News: Court ruling on Senate voting this Friday

Yesterday’s High Court’s judgment delivery notification service (an email list) includes the following announcement:

Please be advised that the High Court will deliver the following judgments:

Friday, 13 May 2016 at 10:00 am in Court No. 2 Parkes Place, Canberra

Day v Australian Electoral Officer for the State of South Australia & Anor (S77/2016)

Madden & Ors v. Australian Electoral Officer for the State of Tasmania & Ors (S109/2016)

These judgments are a pair of constitutional challenges by Senator Bob Day and Tasmanian senate candidate Peter Madden (both of the Family First Party) to amendments made to the Commonwealth Electoral Act in March 2016 to some aspects of the system for voting for senators. A successful challenge would (most likely) mean that the coming federal election would be governed by the previous rules for Senate voting, which have been criticised for permitting candidates with little direct support to be elected through complex deals with other parties about how ‘above the line’ votes for particular parties are dealt with. Such a ruling would be one of the apex court’s most dramatic recent interventions in national politics.

There has been no shortage of detailed analysis of the arguments put forward by Day and Madden. Most predict that the challenge will fail because of the weakness of the arguments put forward. In my view, the Court’s own conduct since the hearing also strongly suggests that the challenge will fail.  Continue reading

News: Congratulations to Katy Barnett

Hamish Michael Thompson was born Friday, weighing 3.3kg, with a fresh dose of immunity, but, disturbingly for his parents Katy and Scott, greatly reduced incentive to settle. Particular congratulations are due to Katy Barnett, who recently won the Barbara Falk prize for excellence in teaching and has written books on Accounting for Profit for Breach of Contract, Remedies in Private Law (with Sirko Harder) and a dystopian science fiction novel, The Earth Below. Somehow she did all of that while editing this blog. We wish the first ever Opinions on High baby and his family well.

News: High Court refuses to overrule itself on advocates’ immunity

Yesterday, in Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16, a majority of the High Court upheld the appeal of a man who wanted to sue his lawyers for negligence over advice they gave him that led him to settle a dispute about a bank guarantee that ended up being very costly for him. However, while refusing to extend advocates’ immunity to work that leads to an out-of-court settlement, the Court also unanimously refused to reopen two earlier decisions where majorities of previous High Court benches had held that advocates are generally immune from civil actions concerning the advice they give in relation to court proceedings that proceed to judgment. While yesterday’s entire ruling will surely be closely studied by private lawyers, a point of more general significance is the Court’s reasons for not reconsidering its earlier decisions. As the Court noted yesterday, it has ‘undoubted authority’ to overrule itself, a power it last exercised in 2013 (as discussed here by Katy Barnett).

However, that doesn’t mean that it will overrule itself, even in situations where the current Court would now develop the law differently. Continue reading

News: Few appeal grants as Court’s new special leave process takes shape

A month ago (or so), the High Court’s registrar announced changes to the Court’s practice on special leave applications, including filtering all applications (rather than just applications by unrepresented litigants) first on the papers, and only proceeding to an oral hearing with some of them. The Court’s announcement was short on details and none have been forthcoming, but there is now a month of practice to consider. The headline is that there are now far fewer oral special leave hearings. Just four were listed for Friday’s special leave day, all in the Court’s Melbourne registry (although two were heard by video link.) And only one of those matters was granted special leave. By comparison, there were eighteen cases (with six grants) heard on March’s special leave day (although some were multiple applications concerning the same matter) and seventeen (with five grants) this time a year ago.

So, what has happened to all the other special leave matters?  Continue reading

News: High Court grants injunction staying asylum seeker’s abortion

In breaking news, ABC News reports that the High Court has issued an urgent injunction restraining an asylum seeker from having an abortion. (The Commonwealth later clarified that she was in fact a refugee to whom a temporary protection visa has been granted). The woman, who is held on Nauru, had requested the abortion in Australia. However, she was flown out to Papua New Guinea yesterday to undergo the procedure, without any notice. She has sought a stay of the procedure because of doubts as to the legality of the procedure in Papua New Guinea.

In what follows below, I outline the law with regard to abortion in Papua New Guinea, and the test for an interlocutory injunction.

UPDATE: The transcript of the application before Keane J is now available. Continue reading

News: Obeid’s suppressed High Court application

Two judgments published yesterday by Gageler J reveal that previously suppressed High Court events in mid-January involved an application by former NSW Legislative Councillor Eddie Obeid to delay and perhaps ultimately prevent his trial on a charge of misconduct in public office. In  the first of yesterday’s judgments, Obeid v The Queen [2016] HCA 9, Gageler J explained his reasons for refusing Obeid’s request to stay his trial until the High Court had considered his application for special leave to appeal the NSW Court of Criminal Appeal’s rejection of his pre-trial arguments (that his parliamentary position at the time of the alleged public misconduct either fell outside of the scope of the offence charged or meant that only the Legislative Council could try it.) In the second, Obeid v The Queen [No 2] [2016] HCA 10, Gageler J explained why both the fact of Obeid’s application for special leave and a stay and Gageler J’s ruling rejecting the stay were not published by the High Court until now: it was because Gageler J himself suppressed that information (at the ex-politician’s request.)That explains why the relevant court list only revealed that an application for an application for a non-publication order was to be heard, but not who made the application or what it was about.

The two sets of reasons for judgment from Gageler J explain the events and his reasoning in considerable and very useful detail. Continue reading

News: Fast track for complicity law challenge

Australian criminal defence lawyers have wasted no time responding to February’s UK ruling overturning the common law rule in England and some other countries that deemed anyone engaged in a criminal enterprise liable for any crimes committed by their colleagues, no matter how serious, if they foresaw the mere possibility that the crime would occur. A challenge to Australia’s similar common law (left untouched by the English decision) is already before the High Court in Smith v the Queen, a South Australian matter that was referred for argument before an expanded High Court bench just a week before the UK judgment. Smith’s 20-page submissions, lodged last week, spend just two pages on the issue that was the subject of the referral (the role of intoxication in such cases, a matter already before the Court in an appeal by Smith’s co-defendant.) Rather, the balance was devoted to the following new question:

Should the doctrine known as “extended joint enterprise”, enunciated in McAuliffe v The Queen (1995) 183 CLR 108, be reconsidered and revised or abandoned, in light of the decision of the Supreme Court of the United Kingdom in R v Jogee [2016] 2 WLR 681?

Whether the High Court actually considers this question turns on multiple exercises of the Court’s discretion, including whether or not Smith can amend his earlier application for special leave to appeal, whether special leave will be granted and whether Smith can ask the Court to reconsider  its earlier rulings on this issue.

In many ways, this challenge resembles the Court’s current reconsideration of advocates’ immunity to negligence actions, another commonly criticised part of the common law. Continue reading

News: Chief Justice announces early resignation

The ‘News Room’ of the High Court’s website contains the following announcement:

Retirement of Chief Justice
The Chief Justice of the High Court has advised the Prime Minister of his intention to resign from office with effect from midnight on 29 January 2017. The resignation will take effect a few weeks ahead of the Chief Justice’s 70th birthday on 19 March 2017 in order that his successor may take up office at the commencement of the 2017 sittings on 30 January 2017.
Andrew Phelan.
Chief Executive & Principal Registrar. 23 Mar 2016

The Chief Justice’s resignation comes 47 days before the date mandated by the Constitution.

The publication of the Chief Justice’s retirement plan is a welcome development Continue reading

News: The High Court’s work during federal elections

An election is of obvious interest to the legislature and executive. However, it is also increasingly relevant to the work of the government’s third branch. Each of the last three federal elections has required the Court to resolve complex questions urgently:

  • two months prior to the 2007 election, the Court struck down legislation from 2006 barring all prisoners from voting.
  • two weeks before the 2010 election, the Court struck down legislation from 2006 removing the 7 day ‘statutory grace period’ allowing people to enrol after an election is called.
  • five months after the 2013 election, Hayne J, sitting as the Court of Disputed Returns,  declared the election of Western Australian senators void due to the loss of 1370 ballot papers.

The 2015 election, whenever it occurs, will continue this trend.

So far, two pre-election High Court cases have been announced. Continue reading

News: Court announces fewer oral hearings for special leave applications

The ‘News Room’ heading on the High Court’s website contains a notice from the Court’s Chief Executive titled ‘Changes to Special Leave’ that is mostly devoted to the following change:

In represented applications, a Panel of Justices will determine in the first place whether an oral hearing is warranted. If the Panel considers that no oral hearing is required, the application will be granted or refused special leave on the papers. If an oral hearing is required, the application will be listed for hearing as soon as practicable.

This announcement continues a decades long trend away from oral hearings in the Court’s function of determining its own appellate docket and brings the Court’s practices closer those in comparable courts in the UK, Canada and the US. In previous years, the Court moved from five-judge benches to three-judge and then the current two-judge benches, and generally stopped giving oral hearings to self-represented applicants. The current announcement indicates that there will now be up to two hearings for all special leave applications, one on the papers and then a possible second oral hearing. It seems that the first non-oral hearing will always involve a decision on whether or not to proceed to an oral hearing and, if there is to be no oral hearing, will also determine whether or not special leave will be granted.

There are a number of aspects of this new process that are not entirely clear from the notice. Continue reading

News: Six new cases as Morcombe matter ends

Friday’s High Court special leave hearings received particular attention in Queensland, with the Court rejecting an application for leave to appeal by Brett Cowan, who was convicted of murdering Sunshine Coast teenager Daniel Morcombe in 2011. The case drew attention because of the tragedy of a 13-year old’s violent death, the publicity given to police suspicions about Cowan at the coronial inquest, the oddity that Cowan was one of two otherwise unrelated child sex offenders who may have been in the vicinity when Morcombe vanished, and the playing out of the dispute about the Chief Justiceship of Tim Carmody during Cowan’s state appeal. Today’s hearing was attended by Morcombe’s parents, who were relieved that the matter was at an end and reportedly critical of the appeal process. However, the national Court’s refusal of leave will disappoint those who hoped it would revisit its earlier support for complex police stings such as the one used to obtain admissions from Cowan, especially given the recent revisiting of such operations by the Supreme Court of Canada, where the method originated.

The High Court nevertheless granted leave to appeal six cases, all of which are especially interesting: Continue reading

News: Gageler J on Victoria’s missing rights Charter

Today, the High Court unanimously rejected an appeal by two anonymous Victorian police officers who argued that they should not be publicly examined by Victoria’s anti-corruption commission about an alleged assault of a detainee in a Ballarat police station because they had been notified that they may be prosecuted for the assault. The Court held that its recent decisions on a common law rule obscurely named the ‘companion principle’, which prevents executive action that interferes with the accusatorial process unless it is allowed by clear legislative language, does not apply to people who are not yet formally charged with an offence. Six of the Court’s seven judges explained their reasons in the usual short format that characterises the French court. But Gageler J added a more interesting concurrence discussing a statute the majority didn’t mention: Victoria’s Charter of Human Rights and Responsibilities Act 2006. This prompts the question: why wasn’t Victoria’s landmark human rights statute addressed by the balance of Australia’s peak court in a major decision involving the human rights of Victorians under a Victorian law? Continue reading

News: Australian criminal law took a ‘wrong turn’, says UK’s top court

In a long-awaited and unusual joint judgment of two peak courts, the UK Supreme Court and the Privy Council, five judges yesterday ruled that the common law took a ‘wrong turn’ on the criminal law of complicity at least 19 years ago.The courts heard appeals by people convicted of murder after their partners in crimes –  respectively, an English domestic assault and a Jamaican taxi robbery –  instead stabbed the intended victims. At issue were rulings by the Privy Council in 1985 and the House of Lords in 1997, building on decisions by Australia’s High Court from 1980,  that such defendants could be convicted of murder if they were merely aware that their accomplices ‘might’ murder someone in the course of another crime. Yesterday’s unanimous judgment found that the twin decisions misunderstood the earlier authority, disregarded principle and, most disturbingly, ‘bring the striking anomaly of requiring a lower mental threshold for guilt in the case of the accessory’ – the accomplices’ awareness of the possibility of a murder -‘ than in the case of the principal’- the stabbers’ intent to cause serious harm. Accordingly, they overruled the 1985 and 1997 decisions, detailed a new narrower standard for liability and outlined ground rules for reviewing decades of potentially wrong convictions.

But yesterday’s ruling does not apply in Australia. Continue reading

News: A surprise death in a national court

Yesterday’s news of the death of United States Supreme Court Associate Justice Antonin Scalia will dismay many, including those who agree with his views and many others who simply enjoyed reading his eloquent and witty judgments. The news also inserts a dramatic new dynamic into United States politics, given the Court’s outsized role in American political life, the sharing of the appointing role between an elected executive and a legislative house and Scalia J’s position as part of a recognisable (although far from invariable) conservative majority in the Court’s many 5-4 decisions. In all these respects, Australia differs from America. Indeed, on the latter point, as UNSW’s Professors Lynch and Williams reported last Friday at the Gilbert & Tobin Constitutional Law Conference, the current High Court now has fewer dissenting judgments than ever.

Deaths of sitting High Court judges are now a rarity, in part because (unlike in the US), appointments of Australian judges are no longer for life. While the last death of a sitting judge was Lionel Murphy’s in 1986, it was not a shock, coming six months after the announcement that he was suffering from inoperable colon cancer. Rather, the most recent surprise death was that of Keith Aickin in 1982, Continue reading

News: Slow start to special leave grants in 2016

The Court today held its first special leave hearings for 2016, in its Sydney and Canberra registries. All the Sydney applications were rejected, while in Canberra, the Court granted special leave in just one matter and also referred a pair of appeals to the full court [EDIT: connected to a matter granted special leave in November]. Matters where leave was refused include two further pre-trial challenges by alleged foreign incursion promoter, Hamid Alqudsi, and a high profile appeal by a farmer who lost his organic certification when genetically modified crops grown by his neighbour contaminated his land.

The lower court decisions to be considered by the Court are: Continue reading

News: Quick end to Alqudsi’s challenge to mandatory jury trials

Yesterday’s new decision on civil procedure and insurers is not the only significant ruling of the High Court this week. Wednesday’s day-long hearing of a pre-trial application by accused promoter of foreign incursions, Hamdi Alqudsi, ended with the following statement by French CJ:

At least a majority of the Court is of the opinion that the following order should be made:
1. The question “Are ss 132(1) to (6) of the Criminal Procedure Act 1986 (NSW) incapable of being applied to the Applicant’s trial by s 68 of the Judiciary Act 1903 (Cth) because their application would be inconsistent with s 80 of the Constitution”, should be answered “Yes”.
2. The motion is dismissed.
The reasons of the Court will be published at a later date.

The effect of these orders is that Alqudsi’s trial will be by a jury of his peers, rather than by judge alone as he preferred. The orders also strongly suggest a rejection by a majority of the High Court of an effort by Alqudsi, broadly supported by the Commonwealth and four states, to overturn or limit a thirty-year old 3-2 ruling by the High Court that effectively gave prosecutors, but not courts or defendants, the power to opt for a judge-alone trial of serious federal crimes.The Court’s majority holding in 1986’s Brown, although certainly a plausible reading of the bare text of s80 of the Constitution, is reviled by many as a perversion of one of the Constitution’s few apparent protections of human rights. However, we won’t know quite what the Court has said about s80 until the Court’s reasons emerge in next month or so.

Of more immediate interest is why the High Court opted to make its orders immediately Continue reading

News: Bell Group – the litigation that just won’t die

In September 2013, I reported that long-running and complex Bell Group litigation had settled immediately before an appeal to the High Court was to be heard. The litigation began in 1995, and related to loans given to Alan Bond’s Bell Group of companies. However, it seems that the litigation just won’t die.

As I noted just before settlement, the question of how the settlement sum was to be distributed was potentially controversial. The litigation had been funded by the WA State Government-owned Insurance Commission of Western Australia (ICWA). Western Australian motorists had to pay an annual levy of $50 on third party insurance from 1993 to 1996 to assist ICWA, known as the WA Inc levy. That promise of controversy has now been realised. Continue reading

News: Summarising High Court judgments

Wednesday saw the High Court’s first decision of 2016, concerning one of the most controversial issues in Australia: offshore immigration detention. The judgment is a blockbuster, consisting of five judgments and over 42000 words (not including the 339 footnotes), answering (or declining to answer) a special case consisting of fourteen multi-part questions. As is the Court’s practice since late 2002, the judgment was accompanied (and, online, preceded) by a one-page judgment summary, describing the proceedings and, in a single paragraph, its outcome:

The Court held, by majority, that the plaintiff was not entitled to the declaration sought. The conduct of the Commonwealth in signing the second MOU with Nauru was authorised by s 61 of the Constitution. The Court further held that the conduct of the Commonwealth in giving effect to the second MOU (including by entry into the Administrative Arrangements and the Transfield Contract) was authorised by s 198AHA of the Act, which is a valid law of the Commonwealth.

It is likely that this summary was responsible for speedy and accurate media reports that the challenge to the ‘Nauru solution’ had failed, in turn prompting fresh political debate about whether the federal parliament or executive should maintain or end the regime, and specifically the fate of 267 asylum seekers slated to return to Nauru.

However, as The Guardian observed on Wednesday evening, ‘High court decisions are not football matches: it’s not always clear who has won and by how much.’ Continue reading

News: High Court circuit hearings reduced by budget cuts?

As the Canberra Times reports, the High Court has just released its Annual Report for 2014 – 2015, which contains an alarming warning about circuit hearings around the country in light of budget cuts imposed by government imposed ‘efficiency dividends’. In French CJ’s Overview, he says at page 16:

In the 2014-2015 year, income received by the High Court including from its principal source, namely parliamentary appropriations, was $16.336 million. Operating expenses including unfunded depreciation charges of $4.802 million amounted to a total of $21.167 million. The underlying deficit after taking out unfunded depreciation allowances was $29,334.

The High Court has a small administration. Its total staff comprises (not including Justices) 99 persons. Thirty-seven are full-time and part-time ongoing staff, 36 are full-time and part-time non-ongoing staff and 26 are casual staff. The Court operates nationally with extended logistical requirements and large fixed costs. Its level of funding is low compared with the Parliament and many parts of the Executive Government. Historically its appropriated revenues have not kept pace with unavoidable cost increases particularly in building related expenditure. Many of the Court’s administrative costs are fixed, for example, statutory charges for electricity to operate the building. Government imposed efficiency dividends affect core elements of the Court’s operations such as Registry and Library staffing. The Court has undertaken comprehensive reviews of its Registry and administrative processes and structures since 2008. The position continues to be that there is no material scope to reduce the Court’s administrative costs without cutting significant elements of its operations including circuit visits which it undertakes from time to time to Perth, Adelaide and Brisbane dependent upon the workload in those capitals.

[emphasis added]

It would not be positive if the High Court were no longer able to go on circuit to some capital cities (or, as the Canberra Times suggests, any other capital cities other than Canberra). The High Court is a court for all of Australia, and as such, it is important that it has a presence in all States and Territories of Australia.

Back in the days when I was a State judge’s associate, I became enraged by a government questionnaire which described the court as a “business unit.” Courts are not “business units”. They do not produce profits. While courts certainly should not waste money, and should have an efficient administration, it sounds like the High Court has already achieved this. Fundamentally, the High Court is an essential arm of government whose role it is to adjudicate disputes. What price justice?

News: Suppression applications in the High Court

A week ago, the High Court’s registry listed the following matter before Gageler J at 11am in the Court’s Sydney registry:

APPLICATION FOR NON-PUBLICATION
ORDERS
[NAME SUPPRESSED] v THE QUEEN

While it appears likely that this is a criminal law matter, no other information about it is public knowledge. Apart from insiders (and whoever else happened to be in the courtroom that day), no-one knows who the applicant is, who (or what) the non-Queen party was, what orders were already in place, what orders were sought, the grounds for the application, the arguments made, what orders (if any) were made and the reasons for Gageler J’s decision (if any.) In these respects, the High Court is similar to other Australian courts, where such opaque listings are commonplace. Thanks to its practice of publishing transcripts of its hearings online for free, the High Court is usually much more open than other Australian courts.  However, no transcript of any hearing from last Wednesday has been published.

However, transcripts from a different matter a week earlier are more illuminating. Continue reading

News: Baden-Clay’s resentencing delayed until High Court hearing

One of the most closely watched High Court matters of 2016 is an application to appeal a Queensland Court of Appeal decision from December, concerning a high profile domestic homicide. In R v Baden-Clay [2015] QCA 265, the Queensland court (including the state’s new Chief Justice Catherine Holmes) rejected the Brisbane real estate agent’s complaints about the conduct of his homicide trial, but accepted his argument that the jury’s verdict of murder was unreasonable:

[T]here remained in this case a reasonable hypothesis consistent with innocence of murder: that there was a physical confrontation between the appellant and his wife in which he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm; and, in a state of panic and knowing that he had unlawfully killed her, he took her body to Kholo Creek in the hope that it would be washed away, while lying about the causes of the marks on his face which suggested conflict…

In consequence, the appeal against conviction must be allowed, the verdict of guilty of murder set aside and a verdict of manslaughter substituted. Counsel for the respondent should file and serve submissions as to sentence by 15 January 2016, with the submissions for the appellant to be filed and served by 22 January 2016.

Last week, Holmes CJ revisited the final sentence of that judgment on the application of Queensland’s DPP. In doing so, she addressed when a lower court should (and shouldn’t) change course in response to a planned High Court appeal. Continue reading

News: Counting High Court judgments

Today, the High Court issued its final judgment for 2015, number 53 in the media neutral citation list, one more than last year. Looking back over the Court’s judgments published on Austlii, these numbers are amongst the Court’s lowest. Out of the Court’s 113 years, there have been only fifteen with fewer than 53 (media neutral citation) judgments: 1903 (3), 1926 (52), 1928 (51), 1929 (46), 1930 (52), 1939 (41), 1940 (46), 1941 (43), 1942 (40), 1943 (50), 1944 (42), 1948 (50), 1983 (47), 2010 (49) and 2014 (52). The majority of these have ready explanations  – the Court’s truncated first year and the depression and war years – that the more recent years lack.

But such raw counts can easily mislead, as not all published judgments are equal. Continue reading

News: Four more cases get special leave

In sittings today in Melbourne and Sydney, the High Court held its final special leave hearings for 2015, allowing appeals from the following four cases to proceed to the national apex court:

  • Betts v R [2015] NSWCCA 39, a sentencing appeal concerning an horrific instance of domestic violence, where Betts stabbed his former partner repeatedly over a lengthy period when she arrived at their flat to remove her belongings, intending that both would die together. The NSW Court of Criminal Appeal rejected Betts’s arguments that his offence was not aggravated by the extent of his partner’s injuries and was mitigated by his own extensive deliberate self-injuries (including injuries caused by his partner with his consent), but accepted his arguments that the trial judge wrongly aggravated his sentence because of his partner’s vulnerability and wrongly failed to mitigate his head sentence due to prison being especially onerous for him given his permanent self-injuries. However, the Court nevertheless let his sixteen-year sentence stand given the seriousness of his offending.
  • Cosmopolitan Hotel (Vic) v Crown Melbourne Limited [2014] VSCA 353, concerning a refusal by Crown to renew two leases at its Southbank Entertainment precinct, despite the tenant having been required to extensively renovate the premises in order to obtain an earlier renewal of the lease. The Victorian Civil and Administrative Tribunal had found that a statement by Crown employees that it would ‘look after’ the tenants at the next renewal if the renovations were high quality was enforceable as a collateral contract. Victoria’s Court of Appeal held that a Supreme Court judge rightly overturned this finding on the basis that the the statement was not intended to be a promise and was too vague to enforce, but nevertheless remitted the case to the Tribunal to determine what remedy (short of renewing the lease or compensating the tenants for all the profits they might have made) Crown should give the tenants for breaking its promise to look after them.
  • Deal v Kodakkathanath [2015] VSCA 191, an appeal against the failure of a compensation claim by a primary school teacher for injuries to her knee that she sustained when she fell off a small step-ladder while removing unwieldy paper artworks from a wall. The majority held that, although the trial judge’s rejection of her claim that the school breached an occupational health and safety regulation concerning ‘hazardous manual handling tasks’ was premature, inadequately explained and involved some misreadings of the statute, it was nevertheless correct because that regulation did not cover injuries caused by falls.
  • R v Nguyen [2013] NSWCCA 195, an appeal concerning what were described as ‘unusual, even unique, factual circumstances’ presenting ‘a challenging sentencing exercise’ – the fatal shooting of one plain clothes police officer by another in response to a shot fired by Nguyen in excessive self-defence. The NSW Court of Criminal Appeal held that the trial judge was wrong to find that Nguyen’s offending was mitigated by his mistaken belief that the cops (who were executing a search warrant) were robbers, as that fact was already implicit in Nguyen’s conviction for manslaughter (rather than murder), and also that the trial judge was wrong to give Nguyen wholly concurrent sentences for the shot he personally fired (which wounded the police officer’s arm) and the shot the other police office fired (which killed the police officer), as each involved distinct consequences and criminality. Describing his offence as ‘a most serious example of the crime of manslaughter’ and noting the need to deter crimes against the police, the appeal court raised Nguyen’s total sentence from nine years and six months to sixteen years and two months.

News: Ken Parish on the tragedies surrounding Melbourne v R [1999] HCA 32

Legal academic Ken Parish has a post at Club Troppo marking the death of Roy Melbourne, the defendant in a 1999 High Court criminal appeal. The post is an especially poignant one, because Melbourne was convicted of murdering Parish’s mother-in-law, who was minding Parish’s daughter while they shopped for her seventh birthday present.

Parish’s post is a profound insight into the impact of High Court appeals (amongst other things) on people affected by tragedy. Parish recounts:

When the jury’s guilty verdict was delivered I was surprised to find myself sobbing uncontrollably, not through sorrow but relief that this part of our ordeal was over and we could get on with grieving and putting our lives back together. However I was wrong about that last part. Melbourne appealed unsuccessfully to the Court of Appeal and then again to the High Court. Special leave was granted but the substantive appeal failed, although only by a margin of 3:2. The legal ordeal lasted until August 1999.

And he also notes that the description of Melbourne’s crime by McHugh J (and also Callinan J) in the High Court appeal understated the horror of the event, including the fact that it took place in the presence of Parish’s daughter. These awful details stand in sharp contrast to the somewhat dry issue that was debated in the High Court: whether the jury should have been directed that Melbourne’s clean record for the 60-odd years prior to his crime (apart from a drink-driving conviction) was relevant to determining whether or not to believe his statements immediately after the killing, including not recalling the killing, believing that Parish’s mother-in-law was harassing him with late-night noises (actually a defective sprinkler system) and his medical history. A majority of the Court held that the direction was not needed, with Kirby J and Callinan J dissenting.

The most moving part of Parish’s post is his own response to Melbourne’s death, two weeks after he voluntarily returned to prison from parole:

This morning I received a phone call from a detective from the Major Crime Squad. Melbourne was found dead in his cell last night. The detective was careful in what he said, but it sounds like he committed suicide. After a few moments of shocked silence I thanked him and remarked that I almost felt sorry for him, though not quite. But I do feel sorry and so does Jenny Parish. What a dreadful tragedy from beginning to end, for everyone involved including a lonely embittered old man named Roy Melbourne. I’ve been sobbing again today, not out of relief this time but from grief for all that has been lost.

In a comment, Parish adds that Melbourne’s death reportedly followed his return from work release after a law and order controversy in the Northern Territory, which Parish had criticised in an earlier post.

News: Predictable special leave outcomes

Predicting which cases will get special leave to the High Court is generally difficult. Last month, two Victorian judges refused an injunction to preserve the subject-matter of a case that was the subject of a special leave application, stating that ‘we are not persuaded that the application for special leave enjoys sufficient prospects of success to warrant a stay’. The High Court granted special leave in that matter last Friday. But it is possible to make strong predictions during the hearing itself. For example, a clue came during the applicant’s argument that the case ‘is a matter of real importance’ when Keane J interrupted to say ‘I do not think you need to worry about how important it is.’ The applicant promptly stopped his argument, correctly predicting that special leave would be granted. This was confirmed when, at the conclusion of the respondent’s argument, French CJ said that ‘we need not trouble’ the applicant for a reply. An even clearer sign of success is when the High Court does not call on the applicant at all, for example in this matter in October.

More unusually, in two matters this month, a lawyer faced the prospect of arguing for a special leave result after the Court had already resolved the matter against his client. Continue reading

News: Six new administrative and criminal law cases

In sittings in Canberra and Sydney yesterday, the High Court granted special leave to appeal six decisions, consisting of two administrative law matters and four criminal law ones. As well, in the special leave hearing concerning R & M v IBAC, discussed here, French CJ continued the order Nettle J gave  suppressing the names of the two police officers who IBAC wants to publicly examine ‘until further order’, despite Nettle J’s earlier expressed ‘doubts as to whether publication of the name of either applicant at this stage of the proceeding would give rise to any real risk of prejudice to a fair trial, when and if they are ever charged with any offences arising out of the subject matter of the inquiry’.

The cases where the High Court will hear appeals (most likely early next year) are:

Continue reading

News: Special leave to appeal revoked in Fernando v Commonwealth

Fernando v Commonwealth purportedly raised the issue of what measure of damages were appropriate for a case of wrongful immigration detention where the plaintiff could have been lawfully detained in any event. However, the High Court has now revoked special leave on the basis that the appellant’s argument did not adequately raise that question.

Continue reading

News: Special leave granted on solicitor’s duty to will beneficiary

Yesterday, separate from the Court’s usual special leave schedule, the High Court granted special leave to appeal a ruling of the full court of the Supreme Court of Tasmania decided three months ago. (HT: Joel Townsend.) Having recently granted special leave in a NSW case to reconsider the scope and existence of advocates’ immunity from negligence suits in respect of their court work, the new Tasmanian grant raises the scope of solicitors’ liability in negligence for their non-court work, specifically their duty to the beneficiaries of wills they prepare.  Continue reading

News: Nettle J on open justice in Victoria

A procedural hearing on Tuesday hinted at Nettle J’s views on open justice in Victoria, an issue that has been recently debated in The Age. The matter concerns an effort by two police officers who are potentially facing criminal charges for misconduct to stop IBAC (Victoria’s anti-corruption commission) from publicly examining them about that misconduct. The pair’s argument, which rests on recent High Court decisions on whether Australian statutes allowing people to be compulsorily examined on matters that tend to incriminate them must give way to fundamental principles of accusatorial justice, failed in Victoria’s Court of Appeal late last month. The pair now wish to appeal to the High Court and Nettle J was asked to decide two urgent questions ahead of their application for special leave to appeal.

One issue was whether the pair could be named publicly ahead of the special leave application. Continue reading

News: Five new appeals, one an enigma

In hearings yesterday in Brisbane and Sydney, the High Court granted special leave in five new matters, including two Queensland judgments where Holmes JA (who recently replaced Carmody CJ as chief justice of Queensland) was the lone dissent. We know what four of the five judgments being appealed are broadly about:

  • Fischer v Nemeske Pty Ltd [2015] NSWCA 6, a dispute about a family trust, where minutes of a 1994 meeting of directors indicated a distribution of $4M of assets to two beneficiaries. Since then, both beneficiaries, their daughter and all but one of the directors have died, without any transfer of property. The NSW Court of Appeal unanimously held that the directors duly exercised their powers in 1994,that an oral resolution a month before accelerating the vesting day didn’t affect the distribution, that the distribution placed the trust in debt to the beneficiaries and that a 2004 directors’ declaration acknowledging the earlier events extended the period for enforcing the debt (which otherwise would have expired in 2007) so that the estate’s claim could proceed.
  • Murdoch v The Queen [2014] NTCCA 20, an appeal by a man convicted of sexually abusing his step-grandchild on three occasions. The Northern Territory Court of Criminal Appeal unanimously held that the trial judge properly admitted evidence from the complainant’s friend and relatives of the revelation of the abuse, that a direction to the jury that her revelations ‘were some evidence that an offence did occur’ was appropriate (despite their generality), and that the trial judge properly admitted her testimony about a later incident where the accused allegedly ran his hand up her leg during a massage as evidence of the accused’s sexual interest in her. The latter issue may finally draw the High Court into a dispute between the NSW and Victorian courts as to the meaning of the key terms ‘probative value’ and ‘significant probative value’ in Australia’s uniform evidence legislation.
  • Mekpine Pty Ltd v Moreton Bay Regional Council [2014] QCA 317, an action by a shopping centre tenant for compensation for land that the Council resumed for road improvements in 2008. When the lease was signed in 1999, it was over a lot unaffected by the later roadworks, but a redevelopment five years later combined that lot with another lot that was affected. While the trial judge and Holmes JA would have rejected the tenant’s claim, a majority of the Queensland Court of Appeal held that the amalgamation gave the tenant an interest in both lots and that, anyway, a statutory provision giving commercial tenants rights over ‘common areas’ meant that the tenant had a compensable interest in the area that was resumed.
  • McDermott & Ors v Robinson Helicopter Company Incorporated [2014] QCA 357, an action by a survivor of a fatal helicopter accident near the Queensland/Northern Territory border, alleging that the chopper’s maintenance manual gave inadequate instructions on how to check for loose bolts (the cause of the accident.) While the trial judge and Holmes JA held that the manual was adequate in requiring that a tape on key bolts be routinely visually inspected for signs of twisting, a majority of the Queensland Court of Appeal held that the manual should have recommended physically testing each bolt’s tightness with a spanner. (Presumably, the High Court’s interest in the case is not about the law of helicopter bolt maintenance manuals, but rather the appropriateness of an appeal court reversing a trial judge’s factual findings in a negligence case.)

The fifth judgment is an enigma for now. Continue reading