News: Five high profile cases granted special leave

In Friday’s special leave hearings (the first since Nettle J joined the bench), the High Court granted special leave to appeal to five cases. That is the highest number of special leave applications granted in a single day since May last year. Moreover, all five are high profile matters:

  • CFMEU v Boral Resources (Vic) Pty Ltd [2014] VSCA 261 involves an application for the CFMEU to be punished for contempt of court for alleged breaches of orders made by the Supreme Court barring the union from discouraging workers or deliveries to a construction site for the Regional Rail Link. Ahead of the trial, the Court of Appeal upheld a civil ‘discovery’ order requiring the union to provide business cards and employment contracts for people seen at the site who are alleged to be its officials, rejecting an argument that  civil discovery should not be ordered against an accused in a criminal contempt matter. The Court of Appeal conceded that ‘a number of the issues raised in this application involve matters as to which reasonable minds may differ’ and observed that ‘some of the implications of’ a 1993 High Court decision ruling that corporations cannot claim the privilege against self-incrimination ‘are still to be fully grasped’.
  • Firebird Global Master Fund II Ltd v Republic of Nauru [2014] NSWCA 360 involves an order made by the Tokyo District Court requiring Nauru to pay 1.3 Billion yen to an investment fund for defaulted bonds. The NSW Court of Appeal rejected an attempt by the fund to require payment of the debt from Nauru’s accounts held at Westpac, holding that the Foreign States Immunities Act 1985 (Cth): required that Nauru be served before a foreign order against it could be registered; exempted Nauru from a time limit for objecting; provided Nauru with an immunity from the enforcement of foreign orders in Australian courts; and included Nauru’s Westpac bank accounts within that immunity.
  • Isbester v Knox City Council [2014] VSCA 214 involves a question of life and death for Izzy, a Staffordshire Terrier. After Izzy’s owner pled guilty to the offence of owning a dog that caused a ‘serious injury’ (defined to include a cut on a person’s hand), a council panel decided in October 2013 to order Izzy’s destruction. The Victorian Court of Appeal dismissed the owner’s argument that the panel was potentially biased because one of its members was the informant in the preceding prosecution.
  • WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 is a holding by a single judge of the Federal Court that the Minister wrongly rejected a claim for refugee protection by a stateless Faili Kurd who argued that he feared being routinely detained and questioned in Iran by the Basij, a group charged with protecting Islamic values. Justice North ruled that the Minister should have considered, before holding that the man’s fears were neither serious nor of persecution, whether or not the Basij’s actions were reasonably appropriate and adapted to a legitimate Iranian national objective. (Last month, Hayne J refused to halt the deportation of a Tamil Sri Lankan who argued that North J’s decision barred his return to Sri Lanka where he may face punishment for leaving Sri Lanka without permission.)
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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.

10 thoughts on “News: Five high profile cases granted special leave

  1. Hi Professor Gans,
    Re: Firebird Global Master Fund II Ltd v Republic of Nauru [2014] NSWCA 360
    For an interested citizen,could you briefly please clarify flw:
    1. Summary of Prior Judgements: My reading of them: Firebird did not Serve the Summon(s) correctly! Is this the case?
    2. Does the “Special Leave” mean that Firebird can proceed to Appeal to the High Court? If so, what is likely time-line? New Arguments open to Firebird?
    3. Does it have ramifications re repayment of Sovereign Debt? By Less Developed Countries? Developed Countries?

    Many thanks.

    • 1. Firebird did not serve the summons on Nauru at all. (see para [2] of the judgment.)
      2. The granting of special leave means that the High Court will now hear the appeal. According to the special leave transcript, the appeal is likely to be heard in April. In general, the Court will only consider arguments raised already, but, in exceptional circumstances, the Court will hear new arguments. See here for a discussion of special leave. For a judgment on whether and when the Court will hear new arguments on appeal, see here.
      3. I’m afraid I don’t know the answer to this. The case seems to be about a narrow issue: whether and how Westpac can be made to pay a debt held by Nauru but ordered by a foreign court. In Nauru’s case, it has no central bank and instead holds its accounts with an Australian bank. I don’t know whether that situation is unique to Nauru.

      • Sincere thanks Professor. To continue:
        Point 1: How could Firebird and their lawyers not serve a Summons? I would have thought it basic legal procedures?
        Point 2: see Point 4 for “new arguments”.
        Point 3: Wouldn’t Firebird and Nauru eliminated “the foreign court” issue; namely, re-issue charges in Australia and seek to have an Australian Court make judgement?
        PS: You’re right about Nauru’s Banking system: it has no bank at all of its own (that was bankrupted years ago), and no Central Bank!
        Q: Given this, if a Sovereign Government, namely Nauru, borrows money in international financial markets then who is the Guarantor? Based on Court results so far, it appears no one!

  2. One further Q:
    4. Re Nauru’s Westpac Bank Accounts: The above “Summary Note” states that “…and included Nauru’s Westpac bank accounts within that immunity.” My understanding is that this is incorrect. Specifically, I understand that only the Accounts that are related to Australia and N.Z. Foreign Aid plus Sovereign Non-Commercial Accounts are exempt….whatever the latter means!

    In other words, there are still Accounts that are Frozen…and have been since Sept/Oct 2014.

    Is this correct?

    • The NSW Court of Appeal looked at thirty accounts, described in the judgment at [94]-[163]. It held that all of those accounts fell within the foreign state immunity legislation, as none of them were exclusively for commercial purposes (see [206] of the judgment in the Court of Appeal.) The Court of Appeal stopped all the garnishee orders, which means that those accounts stopped being frozen.

      I don’t know whether or not Nauru has any other accounts with Westpac or elsewhere and what their status is.

  3. Interesting to see in the transcript for the special leave application in the Myriad Genetics case that Chief Justice French at least seems quite well disposed to the applicant’s arguments. Against the general thrust of published patent lawyer opinions I must say that my reaction on reading the Full Court’s opinion is that they had been taken for a ride and it would be overturned on appeal to the HCA. One to follow.

  4. Dear Professor,

    I have a question regarding immigration law that has been bugging my mind for quite some time. Let us suppose an applicant’s visa is cancelled and he applies to Migration Tribunal and on refusal applies to Federal Circuit Court and on further refusal applies to Federal Court which is also refused by the Federal Court. Now after some time, the applicant applies a special leave to appeal to the High Court, he argues not only on the previous grounds but also adds a new ground. The high court refuses the special leave to appeal on old grounds and doesn’t consider the new ground as there is not sufficient factual information to consider that ground in high court. In that sense can that ground be considered by the lower courts maybe full federal court if that ground can impact the whole decision. Please advise on this.

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