On its traditional special leave hearing day this session, the High Court held hearings at only one of its registries (Sydney, but with video-links to Melbourne and Adelaide), instead of the usual two. Of the nine matters heard, none were criminal and only one was granted. Much more unusually, the Court yesterday granted special leave in another matter, without any oral hearing. Both new cases are interesting: Continue reading
Monthly Archives: June 2015
Plaintiff B15a v Minister for Immigration and Border Protection
Kiefel J has dismissed an application made on behalf of two infants — the father of whom was an unauthorised maritime arrival under s 5(1) of the Migration Act 1958 (Cth) and the mother of whom had entered Australia via the mainland and was not a UMA — for an order requiring the Minister for Immigration and Border Protection to show cause why a writ of certiorari should not issue Continue reading
News: AUSPUBLAW on Queesland v Congoo
Opinions on High welcomes auspulaw.org to the blogosphere:
AUSPUBLAW posts contributions from leading public law experts – including academics and practitioners – across Australia. The Blog seeks to promote greater engagement with public law issues and a national platform for informed debate about current issues in public law.
Because of the central role of Australia’s High Court in matters of public law, the subject-matter of the Australian Public Law blog, hosted by UNSW’s Gilbert and Tobin Centre for Public Law, overlaps with this blog, especially if the concept of public law is interpreted broadly.
An example is today’s AUSPUBLAW post on the High Court’s recent decision in Queensland v Congoo  HCA 17 Continue reading
Gnych v Polish Club Ltd
The High Court has unanimously allowed an appeal from a decision of the NSW Court of Appeal on the validity and enforcement of leases in licensed and club premises. Continue reading
Minister for Immigration and Border Protection v WZAPN
The High Court has unanimously allowed an appeal from a single judge decision of the Federal Court on the meaning of serious harm relevant to refugee status. Continue reading
WZARV v Minister for Immigration and Border Protection
The High Court has unanimously dismissed an appeal from a single judge decision of the Federal Court on the meaning of serious harm relevant to refugee status, and whether the recent judgment in WZAPN on that question applies here. Continue reading
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd
The High Court has unanimously dismissed an appeal from the Victorian Court of Appeal against its decision to order a coercive process of ‘civil discovery’ in a contempt of court proceeding. Continue reading
News: Chief Justice French before the New South Wales Environmental Defenders Office
Fresh on the heels of his visit to Melbourne Law School, later this month Chief Justice French will be speaking at the fundraising dinner celebrating the 30th Anniversary of the New South Wales Environmental Defenders Office (NSW EDO). He will do so at a time when government funding cuts for the nation’s environmental community legal centres mean that they are under threat (including of late in the NT and WA). The NSW EDO appears to be withstanding national funding cuts and those by the NSW government in 2013 (see this piece by Amelia Thorpe from UNSW) and continues to work on national and local matters – particularly case law, capacity building and reform. Continue reading
News: A century of dissents
Last week, UNSW’s Gilbert and Tobin Centre for Public Law held a workshop on Great Australian Dissents. The judgments nominated by the attendees were tweeted during the proceedings and included thirteen High Court dissents from 1915 to 2013:
- New South Wales v Commonwealth  HCA 17; (1915) 20 CLR 54 (Barton J)
- R v Federal Court of Bankruptcy  HCA 10; (1938) 59 CLR 556 (Dixon & Evatt JJ)
- Chester v Waverley Municipal Council  HCA 25; (1939) 62 CLR 1 (Evatt J)
- Re Richard Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation  HCA 45; (1947) 74 CLR 508 (Dixon J)
- Australian Communist Party v Commonwealth  HCA 5; (1951) 83 CLR 1 (Latham CJ)
- Victoria v Commonwealth  HCA 39; (1975) 134 CLR 81 (Mason J)
- Australian Conservation Foundation v Commonwealth  HCA 53; (1980) 146 CLR 493 (Murphy J)
- Hospital Products Ltd v United States Surgical Corporation  HCA 64; (1984) 156 CLR 41 (Mason J)
- Chamberlain v R (No 2)  HCA 7; (1984) 153 CLR 521 (Deane J)
- Leeth v R  HCA 67; (1992) 67 ALJR 167 (Deane & Toohey JJ)
- Langer v Commonwealth  HCA 43; (1996) 186 CLR 302 (Dawson J)
- Al-Kateb v Godwin  HCA 37; 219 CLR 562 (Gleeson CJ & Kirby J)
- Monis v The Queen  HCA 4 (Heydon J)
Although my own nomination was Deane J’s anguished dissent in the Chamberlain case, my workshop paper identified a forgotten judgment from exactly one hundred years ago as arguably the greatest dissenting judgment of all time. Continue reading
News: A reprieve in the High Court
Yesterday, in Isbester v Knox City Council  HCA 20, the High Court unanimously quashed a 2013 decision by a local council ordering that the plaintiff’s dog, Izzy, ‘be destroyed’, observing that the decision:
affects the owner of the dog. Whether one describes an interest in a dog as a property right, or acknowledges the importance of a domestic pet to many people, the appellant is a person who may be affected by a decision which will require her interests to be subordinated to the public interest.
The Court held that, because the panel the Council formed to decide Izzy’s fate included a council employee who had prosecuted the plaintiff for the offence of owning Izzy when the dog bit a person’s finger (a ‘serious injury’ under Victoria’s Domestic Animals Act 1994), her involvement in the later decision about Izzy’s destruction created a risk of apprehended bias. Izzy’s fate now depends on a fresh decision by the council, made without any involvement by the earlier decision-makers or the prosecutor.
The case is an unusual illustration of how a final court of appeal like the High Court can sometimes be required to make decisions about life and death. Continue reading
King v Philcox
The High Court has unanimously allowed an appeal from the South Australian Supreme Court on mental harm in negligence law. Continue reading
Isbester v Knox City Council
Jeremy Gans, ‘News: A reprieve in the High Court’ (11 June 2015).
The High Court has unanimously allowed an appeal from the Victorian Court of Appeal on local government administrative panel processes. Continue reading
News: Vale Sir Kenneth Jacobs
Sir Kenneth Jacobs, former Justice on the High Court from 1974 to 1979, has passed away aged 97. The High Court noted his passing and his contributions to the court in a media release:
The Court notes with sadness the recent passing, in the United Kingdom, of Sir Kenneth Jacobs KBE, who served as a Justice of the Court from 1974 to 1979. Sir Kenneth, who was born in Sydney in 1917, graduated from Sydney University with a Bachelor of Arts in 1938, served with the Australian Imperial Forces during the Second World War and on his return to Australia graduated in 1947 with a Bachelor of Laws with First Class Honours and the University Medal. He practised as a barrister in New South Wales and was made Queen’s Counsel in 1958. He served as a Judge of the Supreme Court of New South Wales form 1960 to 1974, including eight years on the Court of Appeal culminating in his service as its President from 1972 to 1974. He was appointed to the High Court in 1974 and retired on 6 April 1979. His judgments in the Court, which are still quoted, made an important and lasting contribution to the development of a number of areas of public and private law.
Fuller biographical details are available via the Court’s website here.
An obituary in The Australian provides further details about the circumstances of his retirement from the Court in 1979 and his later life:
Sir Kenneth Jacobs, a self-described liberal who resigned from the High Court in 1979 after being misdiagnosed with stomach cancer, has died aged 97…. Then chief justice Garfield Barwick didn’t want Jacobs to resign, but Jacobs, then aged 61, felt the prognosis was so dire that he would be a drain on the court and left on April 6, 1979. When he did not suffer the predicted downturn in his health, Jacobs consulted another specialist who told him that he had only suffered a painful condition called diverticulitis.
Jacobs considered suing his first doctor, but decided against it and left Australia for England in the early 80s with his British-born wife Eleanor. He settled in Wiltshire and took up bookbinding — and later printing — as he settled into village life .After Lady Eleanor died in 2002, he went back to school and completed a Masters in Classics at London University.
Wikipedia lists the date of his death as 24 May 2015. Our condolences to his family.
Thanks Melissa Castan (@MsCastan) for alerting us.
News: Swearing in Female Judges
In advance of the swearing-in of Michelle Gordon as the 52nd justice of the High Court on 9 June 2016, ABC’s Radio National has spoken about the ceremonial speeches of female judges with ANU’s Heather Roberts. These are events that Dr Roberts describes for the uninitiated as having ‘a bit of a ring of a combination between a eulogy for the living and an Academy Award acceptance speech’. And there are discernible differences in the events and between the speeches given in the past for the inauguration of men and women: one of the central topics of the Radio National program. Continue reading