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:
The case granted leave today, Allen v Chadwick  SASCFC 100 concerns a negligence claim by a passenger who suffered spinal injuries after she was thrown from a car that sped out of control. At the trial, she was initially awarded $1.2M, but, after hearing challenges from both sides, the Full Court lifted that amount to around $1.8M, in part by rejecting a statutory 25% reduction due to the passenger’s failure to wear a seatbelt, because that failure was in turn due to her de facto’s chaotic driving. However, the Full Court split on whether the award should have been subject to another statutory 50% reduction because she ought to have known that her de facto was extremely drunk. The majority accepted that she ‘could not reasonably be expected to have avoided the risk’, because she entered the car in a dark, isolated area, was concerned about her children who were alone in a motel and was subject to stress due to her difficult relationship with her de facto and her personality disorder. In dissent, Kourakis CJ held that this statutory defence did not apply, because a reasonable person would have appreciated that the town was a five minute walk away, that her de facto was unlikely to abandon her and that the risks of an accident were very high. (The High Court registry also lists a later ruling, primarily about costs, as also under appeal.)
The case seemingly granted special leave yesterday, Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union  FCAFC 59, concerns an agreement (set out in full at the end of the judgment) between the federal building industry employment regulator and two unions that the latter should pay a total of $150,000 in civil penalties for engaging in unlawful industrial action. However, it is also a test case for a much broader question: whether courts can take account of such agreements in civil penalty matters, in light of the High Court’s ruling last year barring prosecutors from making submissions about sentencing ranges. All parties and the Commonwealth intervening argued in favour of the existing practice of courts considering such agreements, as endorsed in a 1996 Federal Court judgment and supported by evidence from regulators and the Commonwealth that the practice was essential to the deterrent function of civil penalties.. However, the Full Court of the Federal Court, which arranged for the appointment of lawyers to contradict this position, held that courts determining civil penalties must no longer have regard to agreements as to penalty, except to the extent that they demonstrate the respondent’s cooperation or remorse. The Court observed that, in this light, the agreement between the regulators and the unions provided too little detail about the unions’ conduct in breaching the prohibition and since, and the circumstances of similar penalties, to allow a judge to fix an appropriate civil penalty in this case.
The circumstances of the grant of special leave are unusual. All that is publicly known is a transcript from yesterday, where Kiefel J (who co-authored the 1996 judgment reviewed in the present case), together with Keane J, declared:
In this matter there will be a grant of special leave. The parties will be contacted by the Registry for further details.
The Court regularly decides special leave applications without hearings, based on provisions permitting applications by unrepresented parties to be decided on the papers ex parte or permitting two judges to decide other application without a hearing. The Court yesterday resolved at least twelve applications on the former basis, and five on the latter. However, yesterday’s grant was probably made on the basis that the parties (notably the Commonwealth, appealing as intervenor) elected not to present oral argument. The likely motive for doing so was to bring on the High Court hearing as quickly as possible – the Federal Court judgment was brought down just two months ago – an indication of just how important and urgent the issue of agreed civil penalties, and problematic the federal court’s ruling, is seen by federal regulators.