Justinian has posted what purports to be a copy of a letter French CJ wrote to the current head of the Council of Australian Law Deans ‘to express a concern about recent incidents in which legal academics have provided to the Court copies of papers which relate to matters pending before the Court’.  In 2012, the Chief Justice publicly expressed ‘reservations’ about academic articles ‘produced with a view to influencing the development of the law in a pending case’, remarking: ‘I am not saying that this is improper but its value may be discounted to the extent that it smacks of advocacy.’ By contrast, the concern expressed in the present letter is not with whether or why such articles are written, but rather when and to whom they are communicated: ‘providing materials which are not accessible to the parties, a fortiori after the Court has reserved its decision, are inappropriate and inconsistent with the transparency of the judicial process’.

As French CJ noted in his 2012 speech, dialogues between courts and academics are sometimes made difficult by ‘differences of purpose, perspective and methodology between judicial reasoning and legal scholarship’. Continue reading →

The two new special leave applications granted last Friday were from the following decisions:

• Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2014] NSWCA 148, like another NSW matter that was granted leave in August, concerns the bankruptcy of the Octaviar investment group and a court’s power to extend the time limit for a liquidator to apply to void some of a company’s pre-bankruptcy dealings. In this case, a five-judge bench of the NSW Court of Appeal affirmed its own 2003 ruling permitting ‘shelf orders’ extending the time limit generally (rather than for specific dealings) and upheld the trial judge’s addition of the applicants (parties to some of the transactions with the bankrupt companies who were not present when the shelf order was made) to the proceedings to void the transactions.

• Uelese v Minister for Immigration and Citizenship [2013] FCAFC 86 concerns the statutory obligation to consider the interests of a non-citizen’s children in immigration decision-making.  The federal Administrative Appeals Tribunal, affirming a decision to deport a New Zealand citizen with criminal convictions, only considered the interests of three of the man’s five Australian-resident children. The full court of the Federal Court held that a federal statute barred the Tribunal from considering the interests of his remaining two children, because their existence only emerged during the oral hearing and hence was not notified to the Minister in advance.

Amongst matters refused special leave was the issue of interim injunctions to stop Melbourne’s planned East-West Link, discussed here.

On Friday the project that has been the subject of much recent commentary in the context of the forthcoming Victorian parliamentary elections will return to the High Court in the case of Murphy v State of Victoria. Murphy is opposing the East West Link road and tunnel tollway. His substantive claim is that the State of Victoria and the statutory authority charged with administering the project has engaged in misleading or deceptive conduct contrary to the Australian Consumer Law. Murphy alleges that the State government’s claims and calculations about the economic benefit of the project are misleading or deceptive. He asserts that the project should therefore not proceed. The Victorian Court of Appeal found that the Murphy’s claims should be tried before the Supreme Court. The trial preparation process is expected to result in the Victorian government disclosing the document containing the so called ‘business case’ for the project, which continues to be kept secret. Continue reading →

We recently came across this excellent post at the University of Sydney’s Constitutional Critique blog on the upcoming case, CPFC v Minister for Immigration and Border Protection:

First came the victory, when in Pape it was held to authorise laws governing stimulus payments during the GFC. Then came the defeat, when in Williams (No 1) it was denied the capacity to authorise funding for chaplains in schools. Now non-statutory executive power (NSEP) is poised to make a comeback, in its most controversial and politically-charged instalment yet, CPCF v Minister for Border Protection and the Commonwealth. But whereas in previous cases the stakes were measured in dollar terms, this time the consequences of the alleged exercise of NSEP have a human face.

It will be very interesting to see whether the High Court takes the opportunity to consider the scope of non-statutory executive power (NSEP), or whether the unresolved issues in the Tampa case with regard to the Commonwealth’s NSEP will remain in that state.

This weekend saw the death of Kenneth Perry, thirty-two years after the High Court quashed his wife’s conviction for attempting to murder him. Perry died as he had lived for decades, staunchly maintaining that his wife played no role in several bouts of arsenic poisoning he suffered in the late 1970s. Emily Perry was never retried by South Australian prosecutors, while a further charge for the murder of her first husband laid by Victorian prosecutors was dropped in 1986.

The High Court’s judgment in Perry v R is famous for its bold stand against convictions based on so-called ‘similar fact’ evidence. Continue reading →