News: Seven new appeals heading to the national court

The High Court today granted special leave to appeal in seven cases as follows:

  • Argos Pty Ltd & Ors v Simon Corbell, Minister for the Environment and Sustainable Development & Ors [2013] ACTCA 51: A local planning dispute about a proposed supermarket in the Canberra suburb of Giralang will be considered by the High Court. In this case, the ACT Court of Appeal held that neither corporate interests in shops in the neighbouring suburb of Kaleen nor a small community group formed just prior to making a submission about the development had standing to challenge the planning minister’s decision to call-in and approve the development.
  • BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132: In 2012, an employee of BHP Coal’s Saraji mine in Queensland of 24 years’ standing was sacked after he was seen waving a sign stating ‘No principles, scabs, no guts’ during a strike. A majority of the Full Court of the Federal Court overturned a judge’s ruling that his dismissal was a breach of laws protecting participants in industrial action.
  • Henderson v State of Queensland [2013] QCA 82: In 2002, police found nearly $600,000 in cash in Henderson’s car in Cairns. In proceeds of crime proceedings, the trial judge accepted his account that the cash was the proceeds of the sale of jewelry given to his family by his now deceased father, but nevertheless ordered its forfeiture because the defendant was unable to prove that his father obtained the jewelry lawfully. The Queensland Court of Appeal rejected Henderson’s appeal, holding that the later deposit of the cash into a police account did not require a fresh application, that the trial judge applied the correct onus of proof that was not discharged by evidence suggesting the jewellery was old, and that the lack of apparent wrongdoing by the jewellery’s inheritors did not make the forfeiture of the cash contrary to the public interest.
  • Kentwell v R [2013] NSWCCA 266 and O’Grady v R [2013] NSWCCA 281 are NSW sentencing appeals that share a common issue: in each case, the Court of Criminal Appeal held that the sentencing judge misapplied NSW’s law on standard non-parole periods, but  refused leave to appeal on the basis that the sentence imposed was nevertheless correct. In Kentwell, the Court of Criminal Appeal also held that two 2012 decisions holding that rape in an established relationship is less objectively serious than a stranger rape did not apply where the rape was preceded by ‘serious, unprovoked and unwarranted’ incidents of domestic violence. In O’Grady, the Court held that the need to impose condign punishment for violent home invasions justified a harsh sentence even though the defendant was young, had a minor record and was experiencing PTSD after seeing his former partner die.
  • Minister for Immigration and Border Protection v SZSCA [2013] FCAFC 155: In this case, the applicant claimed refugee status on the basis of the Taliban’s threat to kill him if he resumed his work as a truck driver transporting goods for foreign agencies in Afghanistan. A majority of the Full Court of the Federal Court ruled that the Minister’s rejection of this claim on the basis that the applicant would face no threat if he found alternative work was an error in light of a 2003 High Court ruling about whether a claim based on persecution of homosexuals could be rejected on the basis that the claimant would not be persecuted if he or she remained ‘discreet’.
  • Richards v Gray [2013] NSWCA 402: The plaintiff in this case was awarded $10 million as compensation for brain injuries from a car crash. The appeal concerns a set of issues about the defendant’s liability for the costs of managing this money, including whether the defendant must pay for the costs of managing the money earmarked for funds management, income from the fund and money paid out from the fund at an early stage, as well as whether the management fees should be those set by a commercial fund manager or lower fees set by a government trustee agency.
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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.