Malcolm Turnbull joins a select group: lawyers who have argued before Australia’s national court and then gone on to lead the nation. In 1988, the future Prime Minister capped his greatest success in his career as a barrister by successfully defending his lower court victories in the Spycatcher case in the High Court. The case famously concerned the UK government’s attempts to block the publication of a book by a former MI5 agent, Peter Wright. Having succeeded at trial in arguing that the book’s supposedly confidential contents was mostly already public overseas, Turnbull secured a majority ruling in the NSW Court of Appeal (consisting of two future High Court judges, Kirby P and McHugh JA) and then a unanimous victory in the High Court, which ruled that Australian courts applying the law of confidentiality ought not protect the security interests of an overseas government. Turnbull also succeeded as a junior barrister in an earlier case before the national court, when he defended Noel Chrichton-Browne in the Court of Disputed Returns.

A previous Prime Minister with a much more impressive record before the High Court is Robert Menzies, Australia’s longest serving leader. Continue reading →

Last Friday, the High Court granted special leave in four cases. One is especially newsworthy: the return of the long-running dispute about the validity of various bank fees to the High Court. As Katy Barnett outlines here,  the Court in 2012 held hat such fees are subject to the rule against contractual ‘penalties’ despite being expressed as contractual obligations, (rejecting a preliminary ruling by the trial judge in favour of the banks.)  This year, the Full Court of the Federal Court nevertheless ruled that none of the fees were penalties. As Katy Barnett predicted, that ruling will now be considered by the High Court. But not all of the Court: the trial judge (who wrongly ruled that the fees weren’t subject to the rule, but also held that late credit card payment fees were penalties) was Gordon J, who has since joined the national court. That almost certainly means that she won’t participate in the High Court’s new consideration of the case.

The other three cases granted special leave include one from the Tasmanian courts, ending a six year drought of Tasmanian cases in the national court. The three cases are: Continue reading →

In his decision yesterday rejecting an application to recuse himself from the Trade Union Royal Commission on the grounds of apprehended bias, Commissioner Dyson Heydon considered whether a reasonable bystander would think (contrary to Heydon’s own assertion) that Heydon would  read all of his email attachments (including one describing the nature of the function he had agreed to speak at.) The ACTU’s counsel, Robert Newlinds SC, argued:

People don’t get appointed to the High Court of Australia unless they are considered truly brilliant lawyers, and what the truly brilliant lawyers have over and above truly ordinary lawyers, they have that special ability to absorb incredibly quickly and distil facts, and an ability to retain facts so absorbed and distilled, so as to fit them into the wider picture of the particular legal problem at hand….  So, the reasonable hypothetical bystander is going to think you’ve read this email.

But the Commissioner countered that the reasonable bystander would have a quite different view of former High Court judges’ reading habits: Continue reading →