High Court watchers sometimes speculate that the judges’ willingness to grant special leave varies inversely with their current level of business. Friday’s application hearings show no support at all for that theory.
Having just heard a complex challenge to NSW campaign funding laws and with closely watched expedited hearings on marriage equality and the WA Senate results in the pipeline, the Court granted eight applications for special leave – the highest number in a single day since September 2011 – from the following (highly complex) cases:
- Achurch v The Queen [No 2]  NSWCCA 117 was a request to the NSW Court of Criminal Appeal to reopen its 2011 decision to lift a drug trafficking sentence in line with NSW’s ‘standard’ non-parole period laws. The High Court later overruled the key NSW precedent on those laws. The NSW Court refused the application, holding that the High Court decision neither permitted a reopening of the earlier decision nor would have led to a different outcome.
- ASIC v Wellington Capital Ltd  FCAFC 52, involved a claim by ASIC that the sale a portion of a managed investment scheme to a listed company in return for the entire issued share capital of that company (which were then distributed in specie to unit holders of the fund in proportion to their holdings) were not authorised by the fund’s constitution. The Full Court of the Federal Court held that the an authorisation in the fund’s constitution to deal with the fund’s property as if it were the absolute and beneficial owner, rather than merely a trustee, did not extend to the dealings with the unit holders, and held that it did would violate the trust relationship between those parties. The Court also rejected arguments that the defendant held general company powers under s 124 of the Corporations Act 2001 (Cth) to distribute property among members (allegedly the unit holders) and held that the constitution could not be construed to confer a power to make an in specie distribution.
- Atco Controls Pty Ltd (in liq) v Stewart  VSCA 132 was an appeal involving a claim by the liquidator of a wholly owned subsidiary of the appellant of an asserted equitable lien of over $1.25M that the liquidator said secured his remuneration and costs in realising a settlement between the subsidiary and the appellant. The appellant claims that the sum was secured by a charge held over the subsidiary’s assets and should instead be paid to it. The Court of Appeal of Victoria unanimously held that the liquidator’s asserted equitable lien did not arise.
- FTZK v Minister for Immigration  FCAFC 44, involves an asylum seeker who was accused of involvement in a kidnapping-murder while he was in China, an accusation he claims was motivated by his religious practices. The Administrative Appeals Tribunal held that a combination of doubts about the asylum seeker’s account and conduct following the accusation constituted ‘serious reasons’ for considering that he committed a serious non-political crime, meaning that the Refugee Convention will not apply. Rejecting an argument that this ruling took into account irrelevant grounds, a majority of the Full Court of the Federal Court held that there had been no jurisdictional error on the part of the Tribunal and dismissed the appeal as beyond the Federal Court’s jurisdiction.
- Gillard v The Queen  ACTCA 17was an appeal against multiple convictions for child sexual offences and rape by a family friend of the complainants. The ACT Court of Appeals rejected arguments that the jury’s mixed verdicts were unsafe, that multiple and last minute changes to the alleged dates made the child sexual offence convictions unfair and that jury directions on the effect of the friend’s ‘position of authority’ on the issue of consent in the rape convictions were wrong.
- Howard v Commissioner of Taxation  FCAFC 149, which involved three appeals to the Federal Court relating to the appellant’s 2005 and 2006 taxable income. During 2006, the appellant received the benefit of $6.3 million from the Esparto Trust estate, an off-shore trust estate. The Full Court of the Federal Court unanimously held that these amounts was assessable income, and also agreed with the primary judge that Howard had showed a lack of reasonable care in seeking advice. (The High Court has granted special leave in relation to only one of two appeals connected with the case, although because the special leave transcripts are not yet publicly available it is not clear which appeal will be heard.)
- Milne v The Queen  NSWCCA 24 was an appeal against convictions and sentences for money laundering and dishonesty in relation to a scheme to avoid capital gains tax. In a lengthy judgment, the NSW Court of Criminal Appeal dismissed multiple challenges to each conviction and sentence, including whether an exchange of shares as part of the scheme could sustain a conviction for money laundering.