A month ago (or so), the High Court’s registrar announced changes to the Court’s practice on special leave applications, including filtering all applications (rather than just applications by unrepresented litigants) first on the papers, and only proceeding to an oral hearing with some of them. The Court’s announcement was short on details and none have been forthcoming, but there is now a month of practice to consider. The headline is that there are now far fewer oral special leave hearings. Just four were listed for Friday’s special leave day, all in the Court’s Melbourne registry (although two were heard by video link.) And only one of those matters was granted special leave. By comparison, there were eighteen cases (with six grants) heard on March’s special leave day (although some were multiple applications concerning the same matter) and seventeen (with five grants) this time a year ago.
So, what has happened to all the other special leave matters? The Court does not publish a list of lodged applications, but instead only lists pending oral hearings and the results of all applications. On four separate days over the past two weeks, the High Court published the results of fifty-nine applications for special leave decided without hearings, respectively over three times and twice the numbers of such matters determined last month (19) and a year ago (38). The Court does not identify which of this month’s matters were governed by its new policy, but its published ‘dispositions‘ identify whether the matters were determined under rule 41.10.5 (which only governs ‘unrepresented applications’) or 41.11.1 (which generally governs disposing of applications with oral argument). Of the fifty-nine matters, 35 were disposed of as ‘unrepresented applications’, with the remaining 24 resolved without an oral hearing as a matter of discretion. That compares to just 3 out of the 19 matters resolved last month under rule 41.11.1 and 11 of the 38 resolved that way a year ago. All up, these numbers are broadly consistent with the Court continuing to consider and resolve the same amount of represented special leave applications, but determining most (roughly 80%) on the papers instead of orally, as in the past.The published dispositions do not reveal how the Court chose which matters would receive an oral hearing. It appears that the non-oral case-load was divided roughly into thirds, with Bell & Gageler JJ determining 22 matters (across two days), Nettle & Gordon JJ determining 14 and Kiefel & Keane determining 23. The Chief Justice didn’t resolve any special leave applications on the papers in April, but on Friday he heard some election matters as well as what appears to be yet another application about complicity law.
What were the results of the applications? Of the 59 matters decided on the papers, only one was granted leave and that one appears to be a related action to a series of cases granted leave on the papers last month. As discussed here, in R v Stakaj & N, H  SASCFC 139, a majority of the South Australian Court of Criminal Appeal quashed verdicts of not guilty of murder, after it emerged that the jury foreman may have misunderstood the trial judge’s question about whether 10 or more of them voted to acquit them of murder. Wednesday’s further grant of an application for special leave to Stakaj is listed by the registry as concerning the same judgment, but may actually relate to a later decision by the South Australian court barring any appeal from the guilty verdict for manslaughter the jury also reached, on the basis that those verdicts were also rendered invalid by the foreperson’s error. Alas, because the matter was decided on the papers, we won’t know what this latest application is actually about until the parties’ submissions are published in advance of the full court hearing. The one matter where leave was granted in Friday’s oral hearings is also from South Australia and involves a topic of considerable current interest: the ability of a victim of child sexual abuse in an institutional context to bring a civil action against that institution. In A, DC v Prince Alfred College Inc  SASCFC 161, the full court of the Supreme Court of South Australia overturned a trial judge’s dismissal of such an action, ruling that Adelaide’s Prince Alfred College was vicariously liable (but not otherwise liable in negligence) for the abuse perpetrated by its boarding house master and extending the limitation period for a student to sue for damages for negligence due to a delayed diagnosis of his post-traumatic stress disorder, the horrific nature of the events and the college’s own failure to act earlier or preserve the evidence.