News: New Court cases include one touching on Triggs controversy

In today’s special leave hearings in Perth, the High Court granted special leave to appeal on two Western Australian matters. One of those – on a politically sensitive topic, damages for convicted criminals wrongly held in immigration detention – was relied on by Australian Human Rights Commission President Gillian Triggs to recommend $350,000 in damages for another immigration detainee and High Court litigant, John Basikbasik, resulting in attacks on her role and character earlier this year (as discussed here by Katy Barnett.)

The two matters where leave is granted are:

  • Fernando v Commonwealth of Australia [2014] FCAFC 181, where the Full Court of the Federal Court held held that a man wrongly held for 1203 days in immigration detention should be paid $1 in nominal damages. Fernando’s visa had been cancelled on character grounds because of his sexual assault convictions, but he was belatedly released after a court ruled in another matter that the Department’s policy of giving visa holders 14 days to comment on a proposed  cancellation was a denial of natural justice. The Full Court agreed with the trial judge’s ruling that such a lengthy false imprisonment merited hundreds of thousands of dollars in compensation, but also accepted his further holding, applying recent UK decisions, that only nominal damages were due because Fernando would have been detained anyway without the error. The Court also overturned the trial judge’s award of $25,000 in exemplary damages, holding that the 14 day period had been standard practice and there was no evidence that the Minister was reckless In applying it to Fernando.
  • Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37, where the Full Court of the Federal Court upheld a ruling dismissing an action to penalise the owner of Quest on Arlington in South Perth for allegedly falsely stating that its employers were independent contractors. The Court held that two housekeepers of the serviced apartments who were told that their casual contracts would be ‘converted’ to independent contracts  in fact remained employees of Quest. However, no penalty was payable, as Quest’s misrepresentation was about the existence of a contract between the employees and a third party (which had offered to act as an intermediary so that Quest could avoid industrial relations laws), rather than about the nature of the contract between Quest and the housekeepers.

In a separate blink-and-you-miss-it ruling this week, the High Court granted special leave to and then immediately allowed an appeal by a man who had been convicted of participation in a gang rape of a 16 year-old but had been awarded a new trial by the ACT Court of Appeal, because the trial judge failed to put his defence to the jury. The problem was that the Court of Appeal failed to consider his further argument that the his conviction was unsafe, an argument that could have led to his acquittal. The Court of Appeal held that it had no jurisdiction to fix its error. The High Court had that jurisdiction, though, and exercised it to allow the Court of Appeal to consider whether the accused should be acquitted.

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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.