In 1996, the High Court – in arguably its most significant constitutional law decision in recent decades – struck down a NSW law providing for the continued detention of one person, Gregory Wayne Kable, ruling that a number of aspects of that law, including its one-person nature, were incompatible with the institutional integrity of state Supreme Courts required by the federal constitution. Last year, the Court revisited that case, ruling out Kable’s claim that he was falsely imprisoned under the invalid law. It seems likely that the High Court will revisit that decision in another way this year. The Victorian Parliament today enacted a Bill barring parole except in cases of permanent physical incapacity or imminent death for just one person – the ‘prisoner Julian Knight’.
Monthly Archives: March 2014
News: The Higher the Court, the More Formal the Dress
A recent article in Slate reported that female lawyers who dress too “sexily” are said to be a “huge problem” in US courtroom. Some courts have instituted “dress codes” and some universities have instructed their students on what appropriate dress should be. The dress codes and instructions have included instructions for men, but have concentrated on female clothing. When I posted this on Facebook it started off a discussion. A number of male lawyer friends made the point that men were subject to dress codes too, and that men who didn’t wear ties or who wore short sleeves would be likely to contravene the dress code. This is true. However, I think that women have to navigate a vastly more complex situation. Continue reading
News: Canada’s top court votes out one of its own
A majority of Canada’s Supreme Court today ruled that:
the appointment of Justice Nadon and his swearing-in as a judge of the Court were void ab initio. He remains a supernumerary judge of the Federal Court of Appeal.
‘[T]he Court’ the Court referred to, was, of course, the very Court that made that ruling. If the dissent of Moldaver J had prevailed, Nadon J would now be (and would have been for months) a fellow member of the Court that just ruled him ineligible for membership. The background to the decision is described here. Continue reading
News: Six new grants of special leave
The High Court today held special leave hearings today for sixteen matters from the ACT, NSW, South Australia, Western Australia and the Federal Court. Of these, six cases were granted special leave to appeal. The six cases are: Continue reading
Endeavouring to Solve a Contracting Puzzle: Verve Energy
By Wayne Jocic and Matthew Bell
Every transactional lawyer, and his or her clients, can imagine the situation. Contract negotiations have stalled because one party is unable to commit unconditionally to an obligation: aspects of its performance, it says, are beyond its control. That party might be a builder who is reluctant to provide a warranty that a third party assessor will accredit a building’s environmental sustainability to a particular standard, or an information technology contractor which needs to provide documents to independent consultants but cannot guarantee that they will keep them confidential.
The contract needs to be finalised and signed. Where do the parties turn?
Inevitably, the drafter or negotiator will call for help from an ‘endeavours’ clause. Whether the adjective in which it is clothed is ‘best’, ‘reasonable’ or otherwise, the concept often ends up being the foundation on which the conditioned obligation rests. Prudent drafters typically seek to add precision, perhaps by specifying criteria by which the endeavours are to be tested, or by setting out specific action that the counterparty must take.
In Electricity Generation Corporation v Woodside Energy Ltd  HCA 7 (Verve Energy), the High Court was called upon to decide whether a clause requiring gas sellers to use ‘reasonable endeavours’ to supply a ‘supplemental’ amount of gas was breached by the sellers. They had declined to make that gas available, largely because they could charge more than the contracted amount for it. Continue reading
News: A UK Supreme Court judgment is leaked
Last year, some Australians learnt the outcome of the High Court’s same-sex marriage decision minutes (or more) before it was delivered. This weekend, the result of a UK Supreme Court decision was announced in the UK press four days before it was delivered. The case concerned an investigation of an alleged leak from a government emergency committee to a Sky News reporter. Scotland Yard’s Chief Commissioner asked the Supreme Court to overturn a lower court’s ruling that a court cannot rely on secret (undisclosed) government evidence to order a media organisation to disclose documents relevant to the investigation. However, according to one paper:
The Mail on Sunday understands that the Supreme Court has rejected his demand. Its ruling is due to be published on Wednesday.
As yesterday’s Supreme Court judgment revealed, the Mail’s reporting was accurate.
So, who leaked the Court’s media leak judgment to the media? Continue reading
Western Australia v Brown
An Opportunity Saved: Duress in the High Court of Australia: Verve Energy
By Professor Elise Bant
Some may regard the recent High Court of Australian decision in Electricity Generation Corporation v Woodside Energy Limited  HCA 7 (Verve Energy) as a missed opportunity to clarify the doctrine of duress. The basic elements of duress are straightforward: the plaintiff must have been (1) subjected to illegitimate pressure which (2) caused the plaintiff to confer a benefit on the defendant (see Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, 45–6 (McHugh JA)). However, the boundaries of the doctrine are highly controversial. Verve Energy seemed to provide the opportunity to examine some of these controversies, in particular the operation and boundaries of so-called ‘economic duress’ and whether ‘lawful act duress’ is anything other than a legal oxymoron.
Why did the High Court not consider duress?
As it was, Verve Energy was decided on contractual principles. Specifically, a majority of the High Court held that the respondent Woodside had not breached any contractual duties to Verve in the light of the Court’s interpretation of key contractual provisions. It was conceded by the parties that this rendered consideration of the duress case unnecessary (at ). This narrow approach to deciding the case, however, leaves the door open for the Court to consider the duress issues afresh, and on the basis of full and proper argument, in due course. In the meantime, the Court of Appeal decision insofar as it relates to duress remains a valuable addition to the body of authority on this important area. Furthermore, certain characterisations of duress made in argument before the High Court that, if accepted, would have substantially altered the nature of duress in Australia, and for the worse, have for the time being been shelved. This again leaves it open to the High Court on another occasion, and in the light of full argument on the points, to reinforce the core nature and operation of duress in Australia. Continue reading
Protecting the Plaintiff’s Expectations: Clark v Macourt
By Dr Katy Barnett
Clark v Macourt  HCA 56 is a case where the damages awarded far outstripped the cost of the original contract. The contract concerned the sale of an IVF business for close to $387,000, but a majority of the High Court affirmed the decision of the trial judge that the purchaser of the business was entitled to damages of over $1.2 million for a breach of warranty, as a substantial amount of the sperm included as an asset of the business did not comply with the warranty. This award was made notwithstanding the fact that the purchaser passed the cost of purchasing substitute sperm onto patients. This post will concentrate on the High Court’s recognition of the plaintiff’s interest in performance of the contract and the way in which damages are measured. Continue reading
News: Customers appeal in bank fees case
In February, I noted that Gordon J had handed down her decision in Paciocco v Australian and New Zealand Banking Group Limited  FCA 52, the bank fees case. The ABC reports that the bank customers lodged an appeal yesterday. The Bank is still considering its position, and has three weeks to make a decision, but I would not be surprised if it also appealed. Nor would I be surprised if this case ends up before the High Court again.
Update: it’s always nice to have one’s predictions confirmed. As pointed out in comments below, the Sydney Morning Herald reports that the Bank filed an appeal today.
Is Every Crook a Money Launderer? Milne v The Queen
By Professor Jeremy Gans
Some trace the term ‘money laundering’ to the coin-operated Chinese laundromats that Al Capone pretended were the source of millions he earned from Prohibition-era alcohol sales and vice. This dubious origin-story rests on some hard facts: that crime can pay, that it may pay a lot, but that not all money is equal. If criminals want to spend their profits without attracting attention to their crimes, they have to find a way to make it look like their riches were legitimately earned. That is, illicit money is of little value until it is ‘cleaned’.
The criminal law now adds to the wealthy criminal’s burden by deeming the act of money laundering to be an especially heinous offence in and of itself. In Australia, after police and prosecutors baulked at the dirty work of sorting out criminals’ financial shenanigans, legislatures and courts have recently stretched the offence’s definition to include simply handling any money or property en route to or from any crime. The result is that many very ordinary criminal acts can now also be charged as money laundering. Shoplifting. Bank robbery. Social security fraud. Commercial offences. Just about any crime that involves anything of value. That includes tax evasion, the only crime the Americans were able to pin on Al Capone. Or it did, until the High Court put a stop to the bloat of money laundering last month.
Airing some dirty laundry
On Valentine’s Day 2004, officers of the Australian Crime Commission entered a presidential suite in Melbourne’s Sheraton Towers (now The Langham), armed with a warrant to search for evidence that celebrity lawyer Michael Brereton had schemed to evade tax. Brereton himself was never charged with tax fraud, but the Toshiba notebook computer they seized (belonging to the room’s occupant, Philip Egglishaw) yielded a list of the clients of Egglishaw’s Geneva firm Strachan and prompted seven federal agencies to join forces to investigate offshore tax havens.
Project Wickenby has resulted in dozens of prosecutions and convictions and has featured at least yearly in the High Court’s caseload this decade. In 2010, the Court rejected attempts by one of Wickenby’s most famous (but also never charged) targets, Paul Hogan, to keep a document detailing his tax affairs secret. The next year, the Court ruled that the common law did not prevent the Commission from compulsorily examining one target’s wife. In 2010, 2011 and 2013, the Court dismissed three criminal appeals by convicted Wickenby targets. This run of successes in the High Court ended with this year’s Milne v The Queen  HCA 4. Continue reading
Woodside Energy Ltd v Electricity Generation Corp; Electricity Generation Corp v Woodside Energy Ltd
James v The Queen
News: Judge Ad Hoc Callinan and the International Court of Justice
While Russia was busy reminding the world of, among other things, the perennial problems of compliance and enforcement of international law (see the coverage on Opinio Juris here and here), the judges of the International Court of Justice delivered a sharp series of orders against Australia in its ongoing dispute with Timor-Leste before the ICJ. On the bench as Australia’s nominated judge ad hoc — but voting against all three declarations — was former High Court Justice Ian Callinan AC.
On 3 December 2013, ASIO intelligence officers seized documents, data and property located at the ACT offices of Bernard Collaery, a lawyer advising Timor-Leste in its ongoing dispute with Australia at the Permanent Court of Arbitration over a $40 billion oil and gas treaty. Timor-Leste requested that the ICJ make ‘indications of provisional measures’ — roughly equivalent to interlocutory orders in domestic courts. Continue reading
News: Rare video of a protest in the US Supreme Court
Last Friday saw a dubious first: video of argument before the United States Supreme Court, now available on youtube. The matter was McCutcheon v Federal Electoral Commission, argued last October, on the vexed issue of campaign finance laws. There are several reasons this ‘first’ is dubious. For starters, there are two past clandestine photos of the court at work, albeit taken over eighty years ago. As well,the youtube video barely shows anything, as it was also taken surreptitiously and focused mainly on a protest by a group opposed to the Court’s controversial Citizens United ruling striking down limits on corporate donations. (Australia’s High Court heard and ruled on a similar case late last year.) While the video has drawn modest attention to issue of campaign financing, its main impact has been to prompt some interesting discussion of the legality of videos and protests inside a national court.