Tax and Power in the High Court: The Capital Cost of an Electricity Monopoly: Ausnet Transmission Group Pty Ltd v Federal Commissioner of Taxation

By Professor Miranda Stewart

Ausnet Case Page

State governments are keen to raise funds by privatising electricity networks, as has just been legislated in New South Wales, but a privatisation agenda can also cause an election loss, as shown in this year’s Queensland election. Electricity privatisation is a controversial and the costs and benefits are hard to understand.

One of the less visible aspects of electricity privatisation is the tax treatment of the asset purchase for the private buyer. This year, one of the few High Court cases on income tax is about the privatisation of Victoria’s electricity transmission networks in the late 1990s. This is the case of AusNet Transmission Group Pty Ltd v Federal Commissioner of Taxation [2015] HCA 25.

AusNet is a listed electricity transmission company that, in its own words, is Victoria’s ‘largest energy delivery service’. According to its website, AusNet owns and operates $11 billion of electricity and gas distribution assets that connect to more than 1.3 million Victorian users in a network of ‘49 terminal stations, 13,000 towers and 6,500 kilometres of high-voltage powerlines’. It’s not surprising that when AusNet has a tax issue, it is similarly large.

AusNet loses case on tax deductibility

AusNet (at that time called SPI Powernet) paid more than $2.5 billion for electricity transmission assets that it purchased in 1997 from a Victorian State-owned company. The asset purchase was just one element in the massive exercise of electricity privatisation (for more, see the first instance decision). The purchase price included the physical assets and the electricity transmission licence which would permit AusNet to operate the network. The contract also required AusNet to pay charges under the Electricity Supply Act 1993 (Vic) of $177.5 million in the 1999, 2000 and 2001 tax years, as the new owner of the transmission licence.

AusNet sought to deduct these charges as current expenses under the general income tax deduction rule (s 8-1 of Income Tax Assessment Act 1997 (Cth)). The Commissioner denied the deduction, arguing that the charges were instead capital in nature. It took more than a decade for this argument, arising out of a complex tax audit, to make its way to the High Court, where AusNet lost.

Applying Australia’s 30 per cent company tax rate, the deduction of $177.5 million was worth about $53 million to AusNet. With interest expense on unpaid tax, AusNet owed a total of $91 million to the Tax Office, of which it had previously paid $30 million. AusNet lost the case in the High Court and announced its ‘disappointment’ to the market in an ASX release. Continue reading

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

A Comment on Professor Finnis’s Praise of Australia’s High Court

In a recent lecture Judicial Power: Past, Present and Future, leading legal philosopher Professor John Finnis launched a strong critique of the Supreme Court of the United Kingdom, especially the famous decision of its predecessor, the House of Lords, in the Belmarsh case, that a provision permitting the detention of suspected terrorists was incompatible with Europe’s human rights convention. By contrast he was strongly supportive of the High Court, writing:

Australia, which has as a federal nation done entirely without constitutionally stated rights for 115 years, made the choice not to entrust this inappropriate kind of power to judges, but to trust themselves and the legislatures they elect. (Victoria and one small federal territory are the only exceptions and very novel ones.) Australia I would say has done easily as well as countries under judicially enforceable or even judicially declarable human rights, and has kept its legislative and judicial discourse authentic, largely uncluttered with this sort of make-believe and confusion of roles, responsibilities and competences.

Professor Finnis relied upon the High Court’s decision in Al-Kateb v Godwin [2004] HCA 37 (where Court upheld indefinite immigration detention in some circumstances) and reserved particular praise for Justice Heydon’s judgment in Momcilovic v The Queen [2011] HCA 34 (where he would have declared Victoria’s human rights law constitutionally invalid.)

Policy Exchange, which has published the lecture as part of its judicial power project, invited three leading constitutional scholars to comment. Adrienne Stone’s commentary — questioning his reliance on Al-Kateb and Momcilovic — is here: 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

North Australian Aboriginal Justice Agency Ltd v Northern Territory

The High Court has decided a matter relating to the constitutionality of the Northern Territory’s new police arrest and detention powers, holding by majority that the powers are not invalid. Division 4AA of the Police Administration Act (NT), inserted into the Act in December 2014, empowers a police officer to arrest a person without a warrant where the office believes, on reasonable grounds, that the person has committed, was committing, or about to commit an ‘infringement notice offence': 35 different offences fall under this definition, many of which are minor or public order type offences. A person can be held for four hours (or longer if the officer believes the person is intoxicated) after which time they may be released unconditionally, released with an issue of an infringement notice, 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

Minister for Immigration and Border Protection v WZARH

The High Court has dismissed an appeal from a decision of the Full Federal Court relating to procedural fairness and merits reviewer procedures and replacements in the assessment of protection visas. WZARH, a Sri Lankan Tamil, entered Australia by boat in November 2010 and was classed as an offshore entry person. Following an adverse refugee status determination, WZARH sought independent merits review of the decision. A recording and transcript of an interview Continue reading

R v Pham

The High Court has allowed an appeal against the decision of the Victorian Court of Appeal on manifestly excessive sentencing in the context of a drug importation offence. Pham pleaded guilty to importing a marketable quantity of heroin and was sentenced to eight years and six months with a non-parole period of six years. The Court of Appeal allowed Pham’s appeal against the sentence on the basis that the initial sentence was outside the range reasonable open to a Continue reading

McCloy Symposium: Scott Stephenson on the Complications and Consequences of Constitutional Comparison

By Dr Scott Stephenson

McCloy Case Page

In McCloy v New South Wales [2015] HCA 34 for the first time a majority of the High Court (French CJ, Kiefel, Bell and Keane JJ) endorsed proportionality analysis as the appropriate framework for determining whether a law violates the freedom of political communication, an implication derived from the Australian Constitution. In doing so, the majority turned to comparative materials, especially comparative constitutional scholarship, to explain and justify its decision. In this post, I consider the complications and consequences of the Court’s comparative engagement, examining the difficulties associated with drawing on the scholarship in this field before considering some implications of the Court’s move. I suggest that it gives greater prominence to two dimensions of constitutional adjudication that are typically not accorded priority, namely the value in providing legislatures with clarity about the limits of their powers and making value judgments explicit.

Complications: The necessary yet difficult task of comparatively engaging with proportionality

The decision to endorse proportionality analysis requires careful consideration of comparative case law and scholarship to ascertain what, precisely, proportionality analysis entails. While it may be, as the majority suggest, a ‘uniform analytical framework’ (at [74]), that framework does not have a uniform formulation or application. Some jurisdictions adopt a three-stage test, while others adopt a four-stage test (see [79] fn 100). In some jurisdictions, the majority of laws that fail proportionality analysis do so at the ‘necessity’ (least restrictive means) stage, while in others it is at the ‘adequate in its balance’ (proportionality in the strict sense) stage (Grimm, 2007). Continue reading

McCloy Symposium: Joo-Cheong Tham Sounds a Cautionary Note on Political Equality as a Constitutional Principle

By Dr Joo-Cheong Tham

McCloy Case Page

In its 1974 decision, Buckley v Valeo, 424 US 1 (1975), the United States Supreme Court infamously ruled that:

the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.

Decades later, Buckley remains powerfully influential with the Supreme Court in McCutcheon v Federal Election Commission stating last year that:

No matter how desirable it may seem, it is not an acceptable governmental objective to ‘level the playing field’, or to ‘level electoral opportunities’, or to ‘equalize the financial resources of candidates’.

In McCloy v New South Wales [2015] HCA 34, the High Court emphatically rejected the approach of US Supreme Court as to the illegitimacy of political equality or fairness as a legislative objective. On the contrary, under the Commonwealth Constitution, ‘(l)egislative regulation of the electoral process directed to the protection of the integrity of the process is … prima facie legitimate’.

Central to the conclusion that political equality and fairness are legitimate legislative objectives was the High Court’s insistence that political equality was a constitutional principle. Yet, the latter was hardly necessary for the former conclusion. If elections are to be ‘free and fair’, it would seem absurd to deny Parliament the ability to regulate with the view to advancing electoral fairness, regardless of what the Constitution said about political equality. As McLachlin CJ and Major J observed in the Canadian Supreme Court decision in Harper v Canada [2004] SCC 33 — a decision favourably cited by the joint judgment and Gageler J:

Common sense dictates that promoting electoral fairness is a pressing and substantial objective in our liberal democracy.

Not only does logic fail to bind these two aspects of the High Court’s judgment in McCloy, they also carry quite different implications in terms of legislative ability to regulate elections. The High Court’s ruling that political equality and fairness are legitimate legislative objectives permits Parliaments to regulate elections for these purposes; political equality as a constitutional principle, on the other hand, will constrain the ability of Parliaments to regulate elections, even in situations when the purported justification is one of equality and fairness.

This post sounds a cautionary note on the elevation of political equality as a constitutional principle in McCloy. It does so by posing three questions, questions that alert us to the fact that political equality as a constitutional principle does not necessarily result in the realisation of political equality and, in fact, poses risks to the democratic project. 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

R v Beckett

The High Court has allowed an appeal against the decision of the New South Wales Court of Appeal relating to perverting the course of justice and making false statements under oath. Beckett was committed for trial on indictment in the NSW District Court on a charge of perverting the course of justice (s 319 of the Crimes Act 1900 (NSW)) and on an alternative charge of making a false statement 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

McCloy Symposium: Lael Weis on Why Political Communication Isn’t an Individual Right in Australia

By Dr Lael Weis

McCloy Case Page

Much of the commentary about McCloy, the High Court’s recent decision upholding NSW’s ban on donations by property developers, will concern the disagreement among members of the Court about the appropriate method for analysing burdens on the freedom of political communication, and I will look forward to what my colleagues have to say. My own contribution to the blog symposium on this case focuses on a long-standing consensus point: namely, the idea that the freedom is not an ‘individual right’.

Although I imagine members of the public might feel somewhat scandalized if told the right of individuals to communicate political matters is a fake idea in Australia, this is something the Court seems firmly committed to. Each of the four judgments in McCloy affirms this proposition: at [29]–[30] (French CJ, Kiefel, Bell, and Keane JJ); at [119]–[120] (Gageler J); at [219] (Nettle J); at [316]–[319] (Gordon J).

This was also a consensus theme in Unions NSW [2013] HCA 58, the antecedent to McCloy that struck down a wider NSW ban on political contributions by people who are not on the electoral role, such as corporations and unions. In a joint judgment 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

PT Bayan Resources TBK v BCBC Singapore Pte Ltd

The High Court has dismissed an appeal against a decision of the Court of Appeal of the Supreme Court of Western Australia regarding Mareva asset freezing orders and prospective foreign judgments and whether the WASC’s powers are inconsistent with the Foreign Judgments Act 1991 (Cth) by the operation of s 109 of the Australian Constitution. The appellant Continue reading

Wright Prospecting Pty Ltd v Mount Bruce Mining Pty Ltd; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd

The High Court has decided an appeal and cross-appeal arising out of two decisions of the New South Wales Court of Appeal relating to mining royalty liabilities, finding in favour of Wright Prospecting in both matters. In 1970, Mount Bruce Mining (MBM) entered into an agreement with Hanwright (a partnership formed by Wright Prospecting Pty Ltd and Hancock Prospecting Pty Ltd) to purchase Continue reading

D’Arcy v Myriad Genetics Inc

The High Court has unanimously allowed an appeal from the Full Federal Court on the validity of a gene patent. The patent relates to a particular DNA or RNA sequence named BRCA1 that has been isolated (or removed) from its ordinary cellular environment and is an indicator of breast or ovarian cancer. Dismissing the appeal from the trial judge’s decision, the Full Federal Continue reading

McCloy v New South Wales

The High Court has decided a special case on whether various provisions of the Election Funding, Expenditure and Disclosure Act 1981 (NSW) contravene the implied freedom of political communication, raised in relation to a hearing before the Independent Commission against Corruption in New South Wales. The second defendant (ICAC) subjected McCloy to a compulsory Continue reading

Alcan Gove Pty Ltd v Zabic

The High Court has unanimously dismissed an appeal against the decision of the Court of Appeal of the Northern Territory on the tort of negligence in the context of asbestos exposure and statute barring. Zabic was exposed to asbestos dust during three years of working for Alcan, and was recently diagnosed with terminal mesothelioma. Zabic claimed common law damages Continue reading

News: Court’s website now includes its judgments

In a seemingly unannounced change, which occurred somewhere between May and July this year, the High Court’s website now contains a database of its own judgments, consisting of all judgments since 2000, and also all ‘unreported’ judgments from 1924 to 2002. The site has its own (somewhat unfashionable) url – – and you can link to summaries and judgments via urls in this domain that incorporate the media neutral citation. The database is browsable and searchable, and provides copies of the judgments in .rtf and .pdf (but not html) format.  The website states that new judgments will be published ‘on the day they are delivered’, although presumably they will be up within the hour, as is typical on Austlii and Jade. For now, transcripts of the Court’s hearings are not available on the Court’s website.

This change brings Australia’s national court closer into line with the practice of comparable courts Continue reading

News: US anti-abortion activist fails in High Court bid to fight deportation

US anti-abortion activist Troy Newman has failed in his last minute High Court bid to challenge the revocation of his Australian visa. His visa was revoked days before he was due to tour Australia. Newman has espoused controversial views regarding abortion, suggesting in a co-authored book that persons who seek abortions and doctors who perform them should be executed for murder. Minister for Immigration Peter Dutton cancelled his visa pursuant to s 128 of the Migration Act 1958 (Cth). Section 128 allows the Minister to cancel a visa before the non-citizen holder enters Australia on the basis of the considerations set out in s 116. The relevant consideration in this case was s 116(e)(i): namely, that the presence of the visa holder in Australia might pose a risk to the health, safety or good order of the Australian community or a segment of the Australian community. Continue reading

News: Pfennig back in court

A long-running Adelaide mystery, the 1983 disappearance of 11 year-old Louise Bell, is currently being explored in a Supreme Court murder trial. The Advertiser reports a prosecutor’s description of an alleged conversation between prisoners at Mt Gambier Prison:

Pfennig started to talk about Michael Black, how he had murdered him,” she said. “He said he couldn’t tell anyone where Michael Black was ‘because there is a chick there’. “The other prisoner asked ‘what chick?’ and Pfennig replied ‘Bell’.”

If true, this amounts to an admission by Dieter Pfennig, not only to his responsibility for Bell’s death, but also to the correctness of a 1995 High Court ruling upholding Pfennig’s conviction for the murder of Black, who vanished near the Murray River in 1989. That judgment is arguably the Court’s most significant (and most controversial) ruling on evidence law. Continue reading

News: Prime Ministers who have appeared before the High Court

Malcolm Turnbull joins a select group: lawyers who have argued before Australia’s national court and then gone on to lead the nation. In 1988, the future Prime Minister capped his greatest success in his career as a barrister by successfully defending his lower court victories in the Spycatcher case in the High Court. The case famously concerned the UK government’s attempts to block the publication of a book by a former MI5 agent, Peter Wright. Having succeeded at trial in arguing that the book’s supposedly confidential contents was mostly already public overseas, Turnbull secured a majority ruling in the NSW Court of Appeal (consisting of two future High Court judges, Kirby P and McHugh JA) and then a unanimous victory in the High Court, which ruled that Australian courts applying the law of confidentiality ought not protect the security interests of an overseas government. Turnbull also succeeded as a junior barrister in an earlier case before the national court, when he defended Noel Chrichton-Browne in the Court of Disputed Returns.

A previous Prime Minister with a much more impressive record before the High Court is Robert Menzies, Australia’s longest serving leader. Continue reading

News: Bank fees action and three other cases granted special leave

Last Friday, the High Court granted special leave in four cases. One is especially newsworthy: the return of the long-running dispute about the validity of various bank fees to the High Court. As Katy Barnett outlines here,  the Court in 2012 held hat such fees are subject to the rule against contractual ‘penalties’ despite being expressed as contractual obligations, (rejecting a preliminary ruling by the trial judge in favour of the banks.)  This year, the Full Court of the Federal Court nevertheless ruled that none of the fees were penalties. As Katy Barnett predicted, that ruling will now be considered by the High Court. But not all of the Court: the trial judge (who wrongly ruled that the fees weren’t subject to the rule, but also held that late credit card payment fees were penalties) was Gordon J, who has since joined the national court. That almost certainly means that she won’t participate in the High Court’s new consideration of the case.

The other three cases granted special leave include one from the Tasmanian courts, ending a six year drought of Tasmanian cases in the national court. The three cases are: Continue reading

Duncan v Independent Commission against Corruption

The High Court has unanimously dismissed a cause removed from the New South Wales Court of Appeal challenging the newly inserted pt 13 in sch 4 of the Independent Commission against Corruption Act 1988 (NSW), which purports to validate ICAC’s decisions regarding corrupt conduct following the High Court’s decision earlier Continue reading

Astrazeneca AB v Apotex Pty Ltd; Astrazeneca AB v Watson Pharma Pty Ltd; Astrazeneca AB v Ascent Pharma Pty Ltd

The High Court has unanimously dismissed an appeal from a decision of the Full Federal Court relating to novelty and the inventive step in s 7 of the Patents Act 1990 (Cth). Astrazeneca holds the patent relating to a method of treating high blood cholesterol using a compound called rosuvastatin, marketed under the drug name Crestor. The respondent drug companies produce and sell Continue reading

Seeing the Wood for the Trees — Finding the Intention to Create a Trust: Korda v Australian Executor Trustees (SA) Ltd

By Paul Collins

Korda Case Page


In a famous literary allusion, du Parcq LJ in Re Schebsman [1944] Ch 83 noted that an intention to create a trust can possibly be created by unguarded language, as in Molière’s Monsieur Jourdain who talked prose without knowing it, although he qualified this by saying that ‘unless an intention to create a trust is clearly to be collected from the language used and the circumstances of the case, I think that the court ought not to be astute to discover indications of such an intention’. In Jessup v Queensland Housing Commission [2001] QCA 312, McPherson JA added at [9] that if the purpose of the settlor was to inspire the poetry of trusts, it was odd that it chose to express itself in common law prose.

This very controversy often arises in the rather prosaic event of insolvency where a party contends that certain assets are not available to creditors because beneficial ownership is vested in a party other than the debtor by reason of a trust. Thus in Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6, the High Court of Australia examined the question whether a trust could be inferred from a contractual relationship. Continue reading

News: Dyson Heydon on the perceived email habits of High Court judges

In his decision yesterday rejecting an application to recuse himself from the Trade Union Royal Commission on the grounds of apprehended bias, Commissioner Dyson Heydon considered whether a reasonable bystander would think (contrary to Heydon’s own assertion) that Heydon would  read all of his email attachments (including one describing the nature of the function he had agreed to speak at.) The ACTU’s counsel, Robert Newlinds SC, argued:

People don’t get appointed to the High Court of Australia unless they are considered truly brilliant lawyers, and what the truly brilliant lawyers have over and above truly ordinary lawyers, they have that special ability to absorb incredibly quickly and distil facts, and an ability to retain facts so absorbed and distilled, so as to fit them into the wider picture of the particular legal problem at hand….  So, the reasonable hypothetical bystander is going to think you’ve read this email.

But the Commissioner countered that the reasonable bystander would have a quite different view of former High Court judges’ reading habits: Continue reading

News: Epilogue to the Beckett malicious prosecution case

In 2013, the High Court held that there was no requirement to prove innocence in malicious prosecution in the case of Beckett v New South Wales [2013] HCA 17. I wrote an opinion on the case here. Ms Beckett’s malicious prosecution case was then remitted back to the New South Wales Supreme Court for decision. Readers may be interested to hear that the New South Wales Supreme Court has now determined that case. Continue reading

News: Hon Ken Hayne to be commissioned for parliamentary inquiry into Victorian Auditor-General

Yesterday, both houses of Victoria’s parliament approved a motion to request that the Parliament’s Public Accounts and Estimates Committee ‘ inquire into and report no later than 20 October 2015 on allegations made against the Auditor-General, Mr John Doyle, in a formal grievance dated 12 August 2015, by a member of his staff’. Although the request does not detail the nature of those allegations, the Committee’s remit includes whether ‘the Parliament should give consideration to the removal of the Auditor-General from office’ under s. 94C(5) of Victoria’s Constitution. And, although also not detailed in the motion, it appears that the inquiry will be conducted by a very recently retired High Court judge (and current professorial fellow at Melbourne Law School.) Continue reading

News: Sitting in Memory of the Late Honourable John Leslie Toohey AC

The High Court holds ceremonial sittings to mark significant events: welcomes to judges, farewells to judges, appointments of Queen’s Counsel and Senior Counsel, first and final sittings of judges in particular cities, and final sittings in particular buildings. Such sittings are also held in memoriam for late judges.

On 10 August 2015, the High Court held a Sitting in Memory of the Late Honourable John Leslie Toohey AC in Perth. The transcript is now available here. The Court notes that Justice Toohey’s Western Australian predecessor, Sir Ronald Wilson, was similiarly honoured with a ceremonial sitting some ten years ago, at which Justice Toohey was present. A ceremonial sitting has also been held for the Late Honourable Sir Harry Gibbs in 2005. Presumably a ceremony will be held for Justice Jacobs, who also passed away this year.

Edelman J’s obituary for Justice Toohey was posted on the blog here.

News: Sir Anthony Mason mulls proportionality

Earlier this month Sir Anthony Mason presented the 21st annual lecture named in his honour at Melbourne Law School and hosted by the Law Students’ Society.

Sir Anthony offered a commentary on contemporary High Court jurisprudence on the relevance of the concept of proportionality in administrative and constitutional law. His focus was on the recent cases of Li, Monis, Unions NSW and Tajjour, which Sir Anthony presented as offering competing perspectives on the place and test for proportionality in Australian law. Sir Anthony did, however, reflect on some of the cases he was involved in from which he traced an historic attention to proportionality by the High Court. These cases included the bicentennial case, Davis v Commonwealth and the refillable bottle case, Castlemaine Tooheys.

Sir Anthony argued that Li represented “a more positive attitude to the use of proportionality” among this Court than past, and he seemingly endorsed the use of proportionality in judicial review to soften the extremely strict standard of Wednesbury unreasonableness.

On the constitutional law freedom of political communication cases of Monis, Unions NSW and Tajjour, Sir Anthony articulated three emergent approaches to proportionality. From Monis, he described Kiefel, Crennan and Bell JJ as grounding an extensive proportionality test (so called ‘structural proportionality’) from European developments. He also distilled competing limited proportionality tests by Gagelar J in Tajjour and by Keane J in the Unions NSW case that would reshape the Lange test for validity of laws that impede political communication if they were to be embraced by the court. As readers of the blog will know from the analysis of Professor Adrienne Stone, how the court resolves its grappling with proportionality might bring clarity to the extent and character of the Australian constitutional freedom of political communication.

A video recording of the lecture can be viewed online.

News: New Court cases include one touching on Triggs controversy

In today’s special leave hearings in Perth, the High Court granted special leave to appeal on two Western Australian matters. One of those – on a politically sensitive topic, damages for convicted criminals wrongly held in immigration detention – was relied on by Australian Human Rights Commission President Gillian Triggs to recommend $350,000 in damages for another immigration detainee and High Court litigant, John Basikbasik, resulting in attacks on her role and character earlier this year (as discussed here by Katy Barnett.)

The two matters where leave is granted are: Continue reading

News: Referendum on constitutional meaning of marriage

“The type of issue that could be canvassed under Section 51 of the constitution — simply at the moment, in Clause 21, it just says ‘marriage’,” Mr Morrison said. “You could equally put in there opposite- and same-sex marriage and clarify very clearly what the meaning of the constitution is on this question, and to reflect [what] some would argue has been a societal change since the constitution was first written.”

Mr Morrison acknowledged the High Court had already ruled on it. “Justices of the High Court have already expressed opinions on this issue, that’s fine, but what I am saying is I would prefer the Australian people decide this: not me, not [High Court Chief Justice Robert French], but the Australian people.”

Federal Minister for Social Services Scott Morrison here refers to Cth v ACT [2013] HCA 55, where six members of the Court said that ‘When used in s 51(xxi)’ of the Constitution, the federal Parliament’s power to make laws about marriage, ‘”marriage” is a term which includes a marriage between persons of the same sex.’ Attorney-General George Brandis later relied on the same case to declare that ‘No constitutional referendum is necessary in this case.’

Given the High Court’s 2013 holding, what would be the legal effect of the referendum? There are two possibilities to consider. Continue reading

Tomlinson v Ramsey Food Processing Pty Ltd

The High Court has allowed an appeal against a decision of the New South Wales Court of Appeal relating to issue estoppel in the context of employment law. Tomlinson was injured while working at an abattoir operated by Ramsey Food. Tomlinson claims he was an employee of another company, Tempus Holdings Pty Ltd, during the time of the injury. Ramsey argued Continue reading

News: Court takes a new appeal on advocates’ immunity

The High Court held another single location hearing of special leave applications last week in Sydney, ahead of a further day of hearings when the Court sits in Perth this week. Last Friday, the Court granted leave in just one case, while refusing leave in all others, including yet another matter addressing the Court’s trilogy of rulings on accusatorial justice, and a case addressing a major divergence between NSW and Victorian courts on the interpretation of the so-called ‘uniform evidence legislation’.

The judgment where leave to appeal has been granted is Jackson Lalic Lawyers Pty Limited v Attwells [2014] NSWCA 335, which concerns advocates’ immunity from negligence actions. Continue reading

News: Who would have standing to challenge the citizenship deprivation law?

The Parliamentary Joint Committee on Intelligence and Security is currently holding any inquiry into a Bill to deprive dual citizens of their Australian citizenship if they engage in particular sorts of conduct (including particular terrorist activities and foreign incursions and recruitment), defined by reference to offence provisions in the federal Criminal Code. In evidence before the Committee on Tuesday, Professor George Williams reportedly predicted a speedy High Court challenge to the Bill’s constitutionality:

UNSW professor George Williams told a Senate inquiry on Tuesday that it was the most “problematically drafted bill” he had ever seen, with more constitutional problems in it than any he had given evidence on. This included a law that allows ASIO to detain and question any Australian for up to a week and foreign fighter legislation aiming to restrain Australians returning from conflict zones in Syria and Iraq. Professor Williams had “no doubt” such a law would be challenged in the High Court and had already been approached by “prominent solicitors” who had clients facing charges that are included in the bill. “It’s such an obvious one to bring a challenge to; I don’t see why they wouldn’t to escape loss of their citizenship.”

But the High Court’s decision last year on Queensland’s bikie laws places a potential roadblock in the face of any such challenge: the requirement that the challenger have ‘standing’ to challenge the laws. Continue reading

Ausnet Transmission Group Pty Ltd v Commissioner of Taxation

Miranda Stewart, ‘Tax and Power in the High Court: The Capital Cost of an Electricity Monopoly: Ausnet Transmission Group Pty Ltd v Federal Commissioner of Taxation‘ (26 November 2015).

The High Court has dismissed an appeal from a decision of the Full Federal Court on the deductability of imposts. The appellant company held an electricity transmission licence in Victoria. Pursuant to an Order of the Governor in Council made under s 163AA of the Electricity Industry Act 1993 (Vic), as a ‘holder of a licence’ and as part of its acquisition of another company under a privatisation scheme, it was required to pay a series of imposts to the State. The appellant claimed that the imposts were deductible Continue reading

Smith v The Queen

The High Court has unanimously dismissed an appeal from a decision of the Queensland Court of Appeal on procedural fairness and majority jury verdicts. The appellant was convicted of rape by a majority jury verdict of 11:1. After several hours of deliberation on the issue of whether the appellant had an honest and reasonable mistaken belief as to consent, the jury disclosed to the Court its voting pattern, which the trial judge Continue reading

Police v Dunstall

The High Court has unanimously allowed an appeal from a decision of the Full Court of the Supreme Court of South Australia on judicial discretion to exclude evidence that was unfairly or improperly obtained. Dunstall was stopped by police while driving and failed a breathalyser test. A subsequent blood test, to which a person is entitled under s 47K(2a) of the Road Traffic Act 1961 (SA), was incorrectly administered at a nearby hospital, Continue reading

News: Federal parliament axes the Court’s crime commission cases

The federal Law Enforcement Legislation Amendment (Powers) Act 2015 (Cth) comes into force today. At the Bill’s second reading speech in March, Minister for Justice Michael Keenan explained that the Bill responds to a set of recent court decisions on the powers of crime commissions (as discussed by Anna Dziedzic here, here and here.) In its X7 decision from 2013, a narrow majority of the High Court held that the Australian Crime Commission could not use its compulsory examination powers to examine a person charged with drug trafficking offences about those offences, while a later decision overturned drug convictions where the trial prosecutors had been illegally given access to transcripts of compelled examinations by the NSW Crime Commission. According to Keenan, the effect of these decisions have been felt well beyond the world of drug prosecutions: Continue reading

Prove Your Own Contempt: CFMEU v Boral

Let’s just say that you and your neighbour really don’t get along. No-one can remember how the dispute started, but you’ve both done things you (sort of) regret. Towards the end, your neighbour even convinced a court to order you to not block her driveway. The sniping only ended when she moved away.

But that was when the real battle began. Your neighbour is back in court asking a judge to punish you for flouting its order. She has photos of a green Corolla parked across her driveway a few evenings before she moved. It’s not your car, but she’s pretty sure you must have put someone up to it and she wants you to be taught a lesson in civility. To prove her case, she asks the court to order you to provide your phone contacts, so she can check whether anyone you know owned or had access to a green Corolla.

Let’s just say that you’d really rather not hand over those contacts. Can a court make you help your neighbour prove that you should be punished for contempt? The High Court looked at this question in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21. Its unanimous answer: it depends on who you and your neighbour are.

‘we’ve lost our keys’

In the High Court case, ‘you’ are the CFMEU, a trade union with over 120,000 members, especially builders, and a flashpoint in Australian workplace relations. Your ‘neighbour’ is Boral, a multinational founded in Australia with over $5 billion in annual revenue, specialising in construction materials.The ‘court order’ was rulings made by Hollingworth J in early 2013 barring the CFMEU from stopping Boral from supplying goods or services to any construction site in Victoria. Continue reading

News: Two grants of special leave, one fast-tracked

On its traditional special leave hearing day this session, the High Court held hearings at only one of its registries (Sydney, but with video-links to Melbourne and Adelaide), instead of the usual two. Of the nine matters heard, none were criminal and only one was granted. Much more unusually, the Court yesterday granted special leave in another matter, without any oral hearing. Both new cases are interesting: Continue reading

Plaintiff B15a v Minister for Immigration and Border Protection

Kiefel J has dismissed an application made on behalf of two infants — the father of whom was an unauthorised maritime arrival under s 5(1) of the Migration Act 1958 (Cth) and the mother of whom had entered Australia via the mainland and was not a UMA — for an order requiring the Minister for Immigration and Border Protection to show cause why a writ of certiorari should not issue Continue reading

News: AUSPUBLAW on Queesland v Congoo

Opinions on High welcomes to the blogosphere:

AUSPUBLAW posts contributions from leading public law experts – including academics and practitioners – across Australia. The Blog seeks to promote greater engagement with public law issues and a national platform for informed debate about current issues in public law.

Because of the central role of Australia’s High Court in matters of public law, the subject-matter of the Australian Public Law blog, hosted by UNSW’s Gilbert and Tobin Centre for Public Law, overlaps with this blog, especially if the concept of public law is interpreted broadly.

An example is today’s AUSPUBLAW post on the High Court’s recent decision in Queensland v Congoo [2015] HCA 17 Continue reading

News: Chief Justice French before the New South Wales Environmental Defenders Office

Fresh on the heels of his visit to Melbourne Law School, later this month Chief Justice French will be speaking at the fundraising dinner celebrating the 30th Anniversary of the New South Wales Environmental Defenders Office (NSW EDO). He will do so at a time when government funding cuts for the nation’s environmental community legal centres mean that they are under threat (including of late in the NT and WA). The NSW EDO appears to be withstanding national funding cuts and those by the NSW government in 2013 (see this piece by Amelia Thorpe from UNSW) and continues to work on national and local matters – particularly case law, capacity building and reform. Continue reading

News: A century of dissents

Last week, UNSW’s Gilbert and Tobin Centre for Public Law held a workshop on Great Australian Dissents. The  judgments nominated by the attendees were tweeted during the proceedings and included thirteen High Court dissents from 1915 to 2013:

Although my own nomination was Deane J’s anguished dissent in the Chamberlain case, my workshop paper identified a forgotten judgment from exactly one hundred years ago as arguably the greatest dissenting judgment of all time. Continue reading

News: A reprieve in the High Court

Yesterday, in Isbester v Knox City Council [2015] HCA 20, the High Court unanimously quashed a 2013 decision by a local council ordering that the plaintiff’s dog, Izzy, ‘be destroyed’, observing that the decision:

affects the owner of the dog. Whether one describes an interest in a dog as a property right, or acknowledges the importance of a domestic pet to many people, the appellant is a person who may be affected by a decision which will require her interests to be subordinated to the public interest.

The Court held that, because the panel the Council formed to decide Izzy’s fate included a council employee who had prosecuted the plaintiff for the offence of owning Izzy when the dog bit a person’s finger (a ‘serious injury’ under Victoria’s Domestic Animals Act 1994), her involvement in the later decision about Izzy’s destruction created a risk of apprehended bias. Izzy’s fate now depends on a fresh decision by the council, made without any involvement by the earlier decision-makers or the prosecutor.

The case is an unusual illustration of how a final court of appeal like the High Court can sometimes be required to make decisions about life and death. Continue reading

News: Vale Sir Kenneth Jacobs

Sir Kenneth Jacobs, former Justice on the High Court from 1974 to 1979, has passed away aged 97. The High Court noted his passing and his contributions to the court in a media release:

The Court notes with sadness the recent passing, in the United Kingdom, of Sir Kenneth Jacobs KBE, who served as a Justice of the Court from 1974 to 1979. Sir Kenneth, who was born in Sydney in 1917, graduated from Sydney University with a Bachelor of Arts in 1938, served with the Australian Imperial Forces during the Second World War and on his return to Australia graduated in 1947 with a Bachelor of Laws with First Class Honours and the University Medal. He practised as a barrister in New South Wales and was made Queen’s Counsel in 1958. He served as a Judge of the Supreme Court of New South Wales form 1960 to 1974, including eight years on the Court of Appeal culminating in his service as its President from 1972 to 1974. He was appointed to the High Court in 1974 and retired on 6 April 1979. His judgments in the Court, which are still quoted, made an important and lasting contribution to the development of a number of areas of public and private law.

Fuller biographical details are available via the Court’s website here.

An obituary in The Australian provides further details about the circumstances of his retirement from the Court in 1979 and his later life:

Sir Kenneth Jacobs, a self-described liberal who resigned from the High Court in 1979 after being misdiagnosed with stomach cancer, has died aged 97….  Then chief justice Garfield Barwick didn’t want Jacobs to resign, but Jacobs, then aged 61, felt the prognosis was so dire that he would be a drain on the court and left on April 6, 1979. When he did not suffer the predicted downturn in his health, Jacobs consulted another specialist who told him that he had only suffered a painful condition called diverticulitis.

Jacobs considered suing his first doctor, but decided against it and left Australia for England in the early 80s with his British-born wife Eleanor. He settled in Wiltshire and took up bookbinding — and later printing — as he settled into village life .After Lady Eleanor died in 2002, he went back to school and completed a Masters in Classics at London University.

Wikipedia lists the date of his death as 24 May 2015. Our condolences to his family.

Thanks Melissa Castan (@MsCastan) for alerting us.

News: Swearing in Female Judges

In advance of the swearing-in of Michelle Gordon as the 52nd justice of the High Court on 9 June 2016, ABC’s Radio National has spoken about the ceremonial speeches of female judges with ANU’s Heather Roberts. These are events that Dr Roberts describes for the uninitiated as having ‘a bit of a ring of a combination between a eulogy for the living and an Academy Award acceptance speech’. And there are discernible differences in the events and between the speeches given in the past for the inauguration of men and women: one of the central topics of the Radio National program. Continue reading

News: French CJ gives Harold Ford Memorial Lecture on Trusts and Statute

Melbourne Law School was honoured to hear French CJ give the 2015 Harold Ford Memorial Lecture. This year’s topic was “Trusts and Statute”, a fitting nod to the late Professor Ford and his expertise in both trusts law and corporate law. Chief Justice French discussed the history of trusts and the way in which statute intertwined with trust law from a very early stage. He also discussed the impact of legislation on trust law in various different areas, including charities law, tax law and corporate law. His comments on the need for coherence, and on the difficulties and advantages of statutory intervention were of particular interest.

His Honour’s presentation was videoed and is available for viewing here.

News: New ICAC challenge goes directly to the High Court

At a hearing on Monday, Gageler J ordered the ‘removal’ to the High Court of a NSW matter challenging the constitutionality of recently enacted NSW legislation retrospectively validating some past actions by that state’s Independent Commission Against Corruption. The Judiciary Act permits the High Court to move any current constitutional or federal dispute in any Australian court directly to the High Court if one or more parties (or an Attorney-General) applies. Last Tuesday, Gageler J agreed to expedite the request to move the application and ordered the parties to provide written submissions. According to Monday’s reasons, those submissions (which are not publicly available) were persuasive:

I am persuaded to take this course having regard, in particular, to the potential for an early resolution of the constitutional issue by this Court to result in a significant saving of time in the hearing and disposition of the proceeding between the present parties that is now pending in the Court of Appeal, as well as to the resolution or substantial resolution of a number of other proceedings now pending in the Supreme Court of New South Wales in which the same issue arises, or is likely to arise.

Indeed, the removal was supported by the party challenging the legislation and was not opposed by ICAC. (By contrast, see here on unsuccessful applications for removal.)

The current ICAC matter has close ties to two separate High Court judgments that were brought down on April 15 this year. Continue reading

News: The High Court splits evenly again

Today, the High Court issued its judgment in the last of three six-judge decisions heard in the months before Crennan J’s retirement. As I discussed in this piece in The ConversatIon last December, even-numbered benches are a sporadic, but persistent, by-product of the Court’s composition:

This same problem arises each and every time a High Court judge approaches retirement. Indeed, it’s happening right now. The Court is scheduled to hear six judge cases in important matters through to June next year because two High Court judges are retiring in succession. Any one of them could be another tie. Cases already at risk of being resolved, perhaps irreversibly, by a tie breaker include regulatory action over Sydney’s radio hoax tragedy, a native title claim over a World War Two training ground, and the aftermath of the collapsed tourism, property and finance group, Octaviar bankruptcy.

The radio hoax and bankruptcy cases were resolved unanimously. However, as I feared last year, today’s native title decision was a tie, Continue reading

Queensland v Congoo

Jeremy Gans, ‘News: The High Court Splits Evenly Again’ (13 May 2015).

The High Court has dismissed an appeal from the decision of the Full Federal Court, in which the FCAFC held that military orders made during the Second World War did not extinguish native title rights.The Court split 3:3, which, due to s 23 of the Judiciary Act 1903 (Cth), means the FCAFC’s decision dismissing Queensland’s appeal stands. Continue reading

News: Over a dozen High Court holdings abolished in Victoria

Yesterday, Victoria’s Parliament passed a law that overturns over a significant number of High Court holdings on the law governing criminal trials. The notes to the Jury Directions Bill 2015 state that it ‘abolishes’ (or confirms the prior abolition of) rules stated by the High Court in the following cases:

  • Pemble v R [1971] HCA 20,  Gilbert v R [2000] HCA 15 and R v Nguyen [2010] HCA 38, on jury directions on defences, offences and bases for complicity that were not argued by the prosecution or defence.
  • Edwards v R [1993] HCA 63 and Zoneff v R [2000] HCA 28, on jury directions on so-called ‘consciousness of guilt’ evidence.
  • Longman v R [1989] HCA 60Crampton v R [2000] HCA 60 and Doggett v R [2001] HCA 46, on jury directions on how the defence may have been disadvantaged due to the time elapsed between an alleged offence and the trial
  • Weissensteiner v R [1993] HCA 65Azzopardi v R [2001] HCA 25 and Dyers v R [2002] HCA 45, on jury directions on the defendant’s failure to explain evidence or to call particular witnesses at the trial
  • Kilby v R [1973] HCA 30 and Crofts v R [1996] HCA 22, on jury directions on the credibility of rape complaint evidence
  • Shepherd v R [1990] HCA 56, on the proof of facts that are indispensable to the prosecution case.

The BIll also refines other aspects of the law on jury directions that have repeatedly been addressed in the High Court, including directions on so-called ‘similar fact’ evidence, identification evidence and the meaning of ‘proof beyond reasonable doubt’.

The sheer number of cases addressed by the BIll is only part of the story. Continue reading

Lindsay v The Queen

The High Court has allowed an appeal from a decision of the South Australian Supreme Court relating to the provocation defence. The appellant was convicted of murdering Mr Negre who had made homosexual advances towards him, and was sentenced to life imprisonment. Lindsay’s primary line of defence was that it had not been proved beyond reasonable doubt that Continue reading

A Statutory Exception to Immediate Indefeasibility Explained: Cassegrain v Gerard Cassegrain & Co Pty Ltd

Cassegrain case page

Tolstoy famously starts Anna Karenina with the line: “All happy families are alike; each unhappy family is unhappy in its own way.” There is nothing quite so unhappy as a dispute between family members which ends up in court. In Cassegrain v Gerard Cassegrain & Co Pty Ltd, the dispute was between siblings who all had interests in the family company, Gerard Cassegrain & Co. The dispute before the High Court was the latest in a long line which began when the family patriarch, Gerard Cassegrain, died in 1993. Gerard and his wife had six children. Gerard’s second child, Claude, was the appellant in this case. The dispute involved certain land which Claude had registered in his and his wife’s name, and then solely in his wife’s name.

In Australia, we have Torrens title. Torrens title is often said to have the benefit of indefeasibility, which means that when a person becomes the registered proprietor of land, that title is not subject to any unregistered interests which may have existed before registration. This means that a person who becomes the registered proprietor of a Torrens interest can be secure about their transaction; they will not be subject to any unknown pre-existing interests. However, it may operate unfairly to those who have pre-existing interests in the land. Consequently, there are a number of limited exceptions to indefeasibility, including the fraud exception. This was the exception which was considered in Cassegrain. Continue reading

News: July constitutional law conference will include focus on Hayne J

One of the many traditions when the guard changes at the High Court is reviews of the outgoing judge’s contribution to the law. At his final special leave hearing in Sydney two Fridays ago, members of the NSW profession spoke to Hayne J’s role, and further similar occasions will doubtless follow in Melbourne and Canberra. Alongside such ceremonial efforts, some (but not all) High Court judges also find themselves the topic of a conference or panel. In Hayne J’s case, such an examination will occur as part of a constitutional law conference to be held by Melbourne Law School’s Centre for Comparative Constitutional Studies on July 23 and 24.

The conference will include two events specific to Hayne J. Continue reading

News: Four new special leave grants

In sittings on Friday, the High Court granted special leave to appeal the following four decisions:

  • Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) [2014] FCAFC 133 concerns the taxation obligations of liquidators. The full court of the Federal Court held that a liquidator who sold a bankrupt company’s property was not required to withhold an amount from the proceeds to pay the company’s capital gains tax, because the liquidator had not received an assessment requiring it to pay the tax.
  • R v Smith [2014] QCA 277 is an appeal against Smith’s conviction for a 1990 rape. The Queensland Court of Appeal dismissed all of Smith’s complaints, including the trial judge’s decision to permit the jury to reach a 11:1 majority verdict. It held that the trial judge was not obliged to disclose to the parties information from the jury about the state of their deliberations prior to permitting a majority verdict, characterising a recent Victorian decision to the contrary as clearly wrong.
  • State of New South Wales v Fuller-Lyons [2014] NSWCA 424 concerns a tragic accident from 2001 where an 8 year-old with a cognitive impairment fell out of a train travelling at 100 km/h. The NSW Court of Appeal overturned the trial judge’s finding that the accident was due to the train station attendant’s failure to notice the child’s arm protruding from a door as it pulled away from Morisset station, holding that the evidence was equally consistent with the child propping open the door with a less visible object.
  • WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137 concerns the obligation to provide an oral hearing to an applicant for a protection visa. The full court of the Federal Court held that the applicant, who had been given an oral hearing before an independent merits reviewer, had a legitimate expectation to a further oral hearing after a new independent merits reviewer was appointed.

News: Justice Michelle Gordon’s unsurprising appointment

A long rumoured appointment to the High Court was announced yesterday:

Today, his Excellency the Governor-General accepted the advice of the Government to appoint the Honourable Michelle Marjorie Gordon, a Judge of the Federal Court of Australia, as the next Justice of the High Court of Australia. Justice Gordon will replace the Honourable Justice Kenneth Hayne AC, who will reach the statutory retirement on 5 June 2015.

Very much like Hayne J’s own appointment in 1997, Gordon J’s is entirely orthodox given the usual criteria of merit and geographic (and, in Gordon J’s case, gender) diversity on the Court. Like Hayne J (whose appointment by the Howard government was also ‘not unexpected in legal circles’), Gordon J’s appointment is perceived by some to be  consistent with the federal government’s conservative politics. In contrast to the recent novelty of Nettle J’s status as the Court’s oldest appointee, Gordon J (aged 50) is the Court’s youngest appointee since Gaudron J (aged 44 in 1987), a distinction held until now  by Hayne J (appointed at age 52.)

Justices Gordon and Hayne have one more thing in common: Continue reading

Cascade Coal Pty Ltd v New South Wales; Duncan v New South Wales; NuCoal Resources Ltd v New South Wales

The High Court has decided three related matters each challenging the constitutional validity of sch 6A of the Mining Act 1992 (NSW) on various bases. Following a finding by the Independent Commission Against Corruption that directors and shareholders of Cascade Coal Continue reading

Independent Commission against Corruption v Cunneen

A majority of the High Court has dismissed appeal from the decision of the NSWCA relating to the powers of the Independent Commission against Corruption (ICAC) under the Independent Commission against Corruption Act 1988 (NSW). Following a motor vehicle accident, the first and second respondents allegedly advised the third respondent to pretend Continue reading

A short obituary of John Toohey by Justice James Edelman

I was in Brisbane on 10 April 2015 this week when I heard the heart-wrenching news that the Honourable John Leslie Toohey AC QC had passed away the previous evening. Although I knew his death was imminent I was still overwhelmed with sadness. John Toohey was a humble and gentle man from whom, and about whom, I never heard an ill word spoken. He was a gentleman in every sense. He talked with crowds and kept his virtue.  He walked with Kings but never lost the common touch.

I had barely graduated from university when I began work for John in 1997.  It was, and remains, for me, an unimaginably fortunate start to a legal career. John had an extraordinary intellect. He was a wonderful teacher. And most of all, he had a human touch without match. In court this manifested itself in a deep respect for his colleagues, for counsel and for his staff. I came to work for him as a fresh-faced graduate.  His intellectual ability, his legal knowledge and his judgement intimidated me. But for the 12 month period of my associateship he treated me, as he did all of his law graduate associates, as an equal. For the two decades that followed, he and his incredible wife, Loma, remained mentors and confidants, and treasured friends.

When Dr Barnett asked me to write this short obituary to honour John Toohey, I accepted un oeil qui rit et un oeil qui pleure. The laughter was prompted by my knowledge that John had already read much of the obituary that I would write. Following his retirement in 1998, Natalie Gray and I wrote a short biography of him for the Journal of Judicial Administration. We had just completed a year as his final associates. John had retired from the High Court and we wanted to express our sentiments of the extraordinary esteem in which we held him, our pride in his powerful sense of service, and our respect for his empathy and compassion. He sent us a warm note of thanks. With his usual dry wit he told us that he was particularly grateful to be given the privilege of reading his obituary. Natalie and I returned to the subject again for the entry we authored on John Toohey in the Oxford Companion to the High Court of Australia. With his wry smile he made another remark about our calling as obituary writers. Continue reading

News: Bank fees back to High Court

In December 2013, I predicted that the now long-running case involving bank fees would end up again before the High Court. That prediction appears to be about to come true.

In February 2014, after the High Court’s earlier decision in Andrews v Australia and New Zealand Banking Group Limited [2012] HCA 30, Federal Court judge Gordon J decided that most of the disputed fees were not penalties, apart from late credit card payment fees (as I posted here). Yesterday, in a resounding victory for the banks, the Full Federal Court in Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50 held that none of the fees were penalties, including the late payment fees. Moreover, none of the fees were unconscionable or unfair.

The Full Federal Court overturned her Honour’s judgment with regard to the late payment fees on the basis that she incorrectly looked at whether the fees paid by Mr Paciocco and his company were ex post (after the event) exorbitant and extravagant, rather than looking at the greatest ex ante (predictable) loss which could have flowed from the breach and assessing the reasonableness of the fees in that light (see [51]-[52] of Allsop CJ’s judgment, with which Besanko J and Middleton J agreed in separate judgments). In light of yesterday’s decision, the plaintiffs have indicated that they intend to appeal to the High Court. The Age reports today:

After ANZ’s appeal was allowed on Wednesday, Maurice Blackburn’s national head of class actions, Andrew Watson, who is representing customers, said he would appeal against the Federal Court’s ruling in the High Court:”Obviously we’re still digesting the details of what’s a very large decision, but based on what we’ve read, we think there are grounds for appeal and we will be making an application for special leave to appeal to the High Court,” he said.

“It is perhaps appropriate that Australia’s largest consumer class action will ultimately be determined by Australia’s highest court, and as a result of today’s decision, that’s where we’re headed…”

Meanwhile, the banks are hoping that their latest win will signal the end of the litigation. I predict that there’s scant chance of that.

News: Nettle J’s first judgment

Today, in his first judgment on the High Court, Nettle J explained why a federal incentive scheme for reducing greenhouse gas emissions was constitutional, a conclusion that most constitutional lawyers would have predicted. Even non-lawyers could have readily predicted what the remainder of the bench would say:

FRENCH CJ. I agree with the answers given by Nettle J to the questions posed in the Special Case for the reasons which his Honour gives.
HAYNE J. I agree with Nettle J.
KIEFEL J. I agree with Nettle J.
BELL J. I agree with Nettle J.
GAGELER J. I agree with Nettle J.
KEANE J. I agree with the judgment of Nettle J.

Queensland Nickel Pty Limited v Commonwealth of Australia [2015] HCA 12 is the latest in a tradition of sorts, where the High Court periodically forgoes its usual practice of presenting judgments where multiple judges agree (and have nothing further to add) as jointly authored by all of them, in favour of one judge presenting the judgment and the rest giving individual pro forma concurrences.

Although seemingly never officially acknowledged, the practice appears to be a way for the Court’s judges to mark the arrival of a new judge on the bench.  Continue reading

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail Ltd

The High Court has decided a constitutional matter involving members of ten Queensland unions who were employed by Queensland Rail Ltd. Those unions had concluded two industrial relations agreements with Queensland Rail Ltd under Continue reading

News: Report that Bell J recused herself from Cunneen case

This Wednesday, the High Court held an all-day hearing on the closely watched dispute between the NSW Independent Commission Against Corruption and prosecutor Margaret Cunneen over the legality of the former’s inquiry into allegations that the latter perverted the course of justice in a traffic matter involving her son’s girlfriend. Reports during the day emphasised criticisms from the bench of ICAC’s barrister, but of more interest is an early morning report in the Sydney Morning Herald early that focused on the composition of the bench itself:

When the High Court convenes to hear the hotly anticipated legal battle between the NSW corruption watchdog and Crown prosecutor Margaret Cunneen on Wednesday, one judge will not be on the bench. Fairfax Media understands Justice Virginia Bell will not be part of the five-judge bench hearing the Independent Commission Against Corruption’s challenge to a ruling shutting down its inquiry into the silk because she has previously made a ruling unfavourable to Ms Cunneen.

The transcript for Wednesday’s all-day hearing shows that the five-judge bench consisted of French CJ , Hayne J, Kiefel J, Gageler J and Nettle J. Justice Hayne’s presence is something of a surprise, given that he must retire in three months (in apparent contrast to Crennan J, who heard her last full bench matter over three-and-a-half months before her retirement.) On the other hand, Bell J’s absence from the bench was seemingly no surprise, a fact that raises two interesting issues about the High Court itself. Continue reading

Australian Feminist Judgments: Righting and Re-Writing Law: Book Review

By Professor Ann O’Connell

Do women think differently to men? Do women lawyers think differently to their male counterparts? More importantly, do women judges judge differently to male judges? A new book, the product of an Australian Research Council grant, seeks to deal with this question. The book is Australian Feminist Judgments: Righting and Re-Writing Law, edited by legal academics Professor Heather Douglas, Dr Francesca Bartlett, Dr Trish Luker and Professor Rosemary Hunter. The book draws inspiration from similar projects in the United Kingdom and Canada, but, as its title indicates, the focus is on Australian judicial decisions. The purpose of the project is to investigate the ‘possibilities, limits and implications of a feminist approach to legal decision making’.

The Australian project involved 55 (mainly) academic lawyers who were tasked with revisiting and rewriting significant decisions in their chosen field which were ‘influenced by, or alternatively, offended feminist principles’. Most, but not all the contributors are women. Most, but not all of the judgments are High Court decisions. The oldest judgment is from 1963 but the majority are more recent cases: 17 of the 26 decisions being handed down since 2000. This is significant because the task was not about updating the judgments to reflect contemporary social mores, but rather it was to step into the shoes of the judge (or judges) as if deciding the case afresh but at the time of the original decision.

The book contains 26 rewritten judgments covering a range of legal subjects. Some of the areas covered might be regarded as covering predictable ‘feminist’ subjects — family law, sexual offences and discrimination law — but the book also deals with less obviously feminist areas of law such as immigration, tort law, taxation, constitutional law, environment and indigenous issues. Four themes were identified to group the judgments: public law; private law; crime and evidence and interpreting equality. The contributors comprised a ‘judge’ (or ‘judges’) who rewrote the judgment and a commentator who provided the context for the original decision and a discussion of the rewritten judgment. Continue reading

Plaintiff S297/2013 v Minister for Immigration and Border Protection; Plaintiff M150/2013 v Minister for Immigration and Border Protection

The High Court has issued a writ of peremptory mandamus commanding the Minister to grant the plaintiff a permanent protection visa. In June 2014, the High Court upheld a challenge to the validity of the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth), known as the PPV Regulation, in two related matters. The Court held the Minister’s determinations in relation to Plaintiffs S297/2013 and M150/2013 were invalid and issued a writ of mandamus in each instance directing the Minister to consider and determine each visa application according to law. Continue reading

News: Nettle J joins the bench

On Tuesday morning, the High Court held a ceremonial sitting for the swearing-in of Nettle J as the Court’s fiftieth judge, attended by all six of his future colleagues, thirteen of his former colleagues on the Supreme Court of Victoria, nine of Australia’s eleven Chief Justices and a multitude of senior lawyers and former judges. Video of the ceremony (the first such to be posted on the High Court’s website under its new audio-visual policy) captures the moment when Nettle J strode directly up to French CJ and announced his commissioning by the Governor-General. He  took an oath of allegiance and of office – a choice also taken by every other new High Court judge in the past two decades bar one – and then his seat on the bench. As in all High Court ceremonies, the bulk of proceedings were taken up with speeches from senior lawyers lauding the new judge, beginning with federal Attorney-General George Brandis, who said that he ‘can scarcely remember an appointment to this Court which was so seamless, so free of controversy, and so universally appraised.’

While the bulk of the ceremony looked to Nettle J’s past, its last fourteen minutes provide a glimpse of the Court’s future. Two parts of Nettle J’s swearing-in remarks are especially illuminating. Continue reading

News: Furore over AHRC President

Recently, Australian Human Rights Commission President Gillian Triggs has been under intense criticism, particularly by The Australian newspaper for her handling of an AHRC report involving a West Papuan man called John Basikbasik.Two points should be made at the outset. First, Triggs is not a judge, and accordingly her decision was not binding. The report contained recommendations which could be rejected by the Minister. Secondly, the Minister did in fact reject President Triggs’ recommendations in May 2014. Mr Basikbasik remains detained and will not receive the recommended compensation.

As these two recent articles in The Australian indicate, the criticisms are being made in the context of a wider furore about the timing of Triggs’ AHRC report into children in detention. Indeed, Richard Ackland has claimed that The Australian newspaper is focusing on the Basikbasik case for this reason. Academic opinion about the Basikbasik case has generally been on Triggs’ side, as prominent Australian international law scholars and others have written to express their support of Triggs’ determination in the Basikbasik case. Professor Mirko Bagaric of Deakin University was a rare exception, and expressed the view that the determination was in error because it took into account the International Covenant on Civil and Political Rights (‘ICCPR’). On Friday last week, The Australian published an article by Professor Ben Saul of Sydney University which was strongly in favour of Triggs. As Professor Saul points out, the definition of the “human rights” under s 3 of the Australian Human Rights Commission Act 1986 (Cth) expressly mentions the ICCPR as a source of such rights.

There is a High Court link to the furore, as the Basikbasik case came before the High Court in 2013, although he was called SZOQQ. Continue reading

News: Crennan J’s solo judgments

Justice Susan Crennan’s imminent retirement from the High Court inevitably invites reflections on her contribution while on the bench. According to Jane Needham SC, Crennan J ‘delivered 316 judgments’ in her nine years at the national court. However, only five of those judgments (two early judgments on wrongful life actions, and three constitutional judgments on elections and executive power) were mentioned in recent ceremonial sittings to mark her retirement. The key difficulty in assessing Crennan J’s contribution was alluded to in the judge’s own remarks at the Sydney ceremonial sitting:

From time to time, there is speculation about the authorship of joint judgments from this Court. Naturally, it is not always accurate. Earlier this year, Justice Kiefel on my right remarked of judgment writing, “Collegiality is not compromise”. In that spirit, may I take the goodwill expressed toward me this morning as an appreciation of the work of the Court as a whole.

By my count, Crennan J issued 28 sole-authored judgments while on the High Court, easily less than 10% of her total. In an extreme contrast, the last High Court judge to retire, Heydon J, issued twice that many such judgments in a single year on the bench (as part of a seventeen-month period where he never joined a judgment.)

Here is my list of Crennan J’s solo High Court judgments: Continue reading

CPCF v Minister for Immigration and Border Protection

Jeremy Gans, ‘Sri Lankan Case Becomes Less Urgent’ (29 July 2014).

Jeremy Gans, ‘News: Progress in Two Major Upcoming Cases’ (25 July 2014).

Jeremy Gans, ‘News: Court Reportedly Issues Interim Injunction in Sri Lankan Asylum Matter’ (7 July 2014).

The High Court has decided a special case relating to the Government’s attempt to return up to 153 asylum seekers to Sri Lanka. On 7 July 2014 Crennan J issued an injunction to prevent Continue reading

Mind the Gaps! High Court Confirms Negligence Will Not Protect Economic Interests where Contractual Protection is Available

By Matthew Bell, Wayne Jocic and Rami Marginean

Brookfield Case Page

The central issue in Brookfield was one which is especially important given the proliferation of multi-use, multi-storey developments around Australia’s major population centres. This was whether the builder of an apartment complex owes a duty of care in negligence to protect the Owners’ Corporation (as agent for the owners of apartments in the building) from pure economic loss arising from latent defects in the common property of that building where those defects were structural, constituted a danger to persons or property in the vicinity or made the apartments uninhabitable. The High Court found that the builder owed no such duty, reversing the decision of the NSW Court of Appeal.

This result may be surprising to lay people or those not versed in construction law. For the reasons we set out below, we think that the Court’s approach is, to a certain extent, based on flawed assumptions as to the availability of legal protection for building owners by way of contractual negotiation or legislation. That said, the decision reflects the greater trend in Australian law in the past ten years to reverse the expansion of the duty of care in negligence, and to leave the question of liability to contract or legislative schemes. Moreover, the Court’s continued backing away from tortious liability is consistent with the view expounded by the Court’s most recent appointee, Justice Nettle, in a 2004 Continue reading

News: Man Haron Monis in the High Court

Opinions on High extends our condolences to those affected by this morning’s events in Sydney, especially the bereaved. In the aftermath of this tragedy, there will undoubtedly be close scrutiny of Man Haron Monis, the man said to be the assailant in the Lindt Cafe. As part of its initial analysis, today’s Sydney Morning Herald notes Monis’s recent litigation before the High Court of Australia:

It has been Monis’ ongoing legal battle over his conviction for penning the poisonous letters to the families of dead Australian soldiers between 2007 and 2009 that has consumed him. It is understood Monday’s siege followed an unsuccessful, last-ditch attempt in the High Court on Friday, December 12, to have the conviction overturned.

This post outlines the various hearings the High Court has held relating to Monis’s argument that the federal crime he was charged with – using a postal service to cause offence – is invalid under the Constitution’s implied freedom of political communication. Continue reading