News: Latest special leave cycle yields five new appeals

The past month has produced five grants of special leave, as follows:

  • 25th May (non-oral): 2 grants, no refusals (Nettle & Gordon JJ)
  • 9th June (non-oral; 8 unrepresented matters, 1 represented): no grants, 9 refusals (Nettle & Gordon JJ)
  • 15th June (non-oral; 11 unrepresented, 10 represented): no grants, 21 refusals (Kiefel & Keane JJ)
  • 17th June (non-oral, 6 unrepresented, 4 represented, 1 unknown): 1 grant, 10 refusals (Bell & Gageler JJ)
  • 17th June (oral): 2 grants, 4 refusals

This month continues the previous trend of non-oral matters being divided amongst three pairs of geographically linked judges, i.e. the Victorian judges (Nettle & Gordon JJ), the Queensland judges (Kiefel & Keane JJ, who received a double load this month) and the NSW/ACT judges (Bell & Gageler JJ), with French CJ again not participating in any non-oral leave matters. Presumably, these pairings suit practical arrangements within the Court, but they also potentially skew leave grants, to the extent that these various pairs see things eye to eye more than other pairs (or French CJ.) The oral matters continue to also be heard by pairs of judges (rather than three, as might be expected if two judges had previously disagreed on the written merits), but the oral pairs don’t match the non-oral ones. This month also sees the Court’s listings all referring to ‘matters for determination’, rather than for publication of reasons or not, and hence no longer indicating results in advance of the Court’s sittings.

The five matters granted leave to appeal are as follows:

  • ACN 005 057 349 Pty Ltd v Commissioner of State Revenue [2015] VSCA 332 concerns erroneous land tax payments from more than a decade ago. Victoria’s tax commissioner admitted to wrongly assessing a double land tax payment for the plaintiff’s land from 2008-2012 and repaid the excess amounts for those years, but refused to do so for similar excessive payments from 1990-2002. Victoria’s Court of Appeal held that the commissioner’s discretion on whether or not to repay the excesses for 1990-2002 could only be lawfully exercised one way and hence a writ of mandamus was available to require the repayment (and that the law of restitution would have required the repayment anyway.) Neither the existence of a statutory repayment scheme nor a statute of limitations barred the writ, as the commissioner knew (and the plaintiff couldn’t have known) that it had assessed the land wrongly.
  • Albrecht v Ainsworth & Ors [2015] QCA 220 is a dispute amongst owners of the Veridian Noosa Residences about one resident’s request to extend his deck between his two existing decks. The body corporate (including the architect who designed the residences and argued against linking the decks on aesthetic grounds) rejected his request to use the 5 square metres of common space, but that rejection was overturned by an adjudicator, a ruling which was then overturned by Queensland’s administrative tribunal, but was then restored by Queensland’s Court of Appeal, meaning that the resident could extend his deck. The Court of Appeal unanimously held that the adjudicator’s role was not limited to asking whether the non-building residents’ objections were reasonably held, but to determining whether the objections were reasonable in all the circumstances, and that the administrative tribunal wrongly found that the adjudicator reversed the burden of proof and made wrong factual findings, and wrongly considered material that was not before the adjudicator.
  • Kendirjian v Lepore [2015] NSWCA 132 revisits the High Court’s recent ruling upholding advocate’s immunity but excluding its application to settlements of cases under litigation. In this case, the plaintiff in a car accident matter sued his lawyers alleging that they failed to tell him the amount of a $600,000 settlement offer made on the eve of the trial and wrongly told him that his claim was worth twice that amount, when he actually ended up receiving half of that amount after his claim succeeded. Prior to the High Court’s recent ruling, the NSW Court of Appeal struck out the plaintiff’s claim on the basis that it fell within the scope of advocate’s immunity.
  • New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2015] NSWCA 349 concerns a native title land rights claim over a former prison. The Minister rejected the claim over the former Berrima Gaol, which was decommissioned in 2011, but which receives weekend visits by offenders serving community service orders to work in the gardens. The NSW Court of Appeal unanimously held that an administrative tribunal  land court (which backed the Minister) did not place the burden of proof on the claimants (but rather properly drew inferences from gaps in their affidavits), that the finding that the gaol continued to be occupied by NSW corrections was properly drawn from all the circumstances (including continuing securing of the site) and that the fact of the decommissioning did not render the continuing occupation unlawful (as it could be supported by the executive’s prerogative power.)
  • R v Castle; R v Bucca [2015] SASCFC 180 involves a man who was shot in the back while sitting in the passenger seat of a car at an Adelaide car wash. The prosecution’s case was that the shooting was arranged by the driver, the man’s ex-wife, and was performed by her new partner as he hid in the backseat, while the defence’s case was that the shooter was another person with a grudge against the deceased who snuck in through the car boot unknown to the driver. South Australia’s Court of Criminal Appeal held that the trial judge wrongly left evidence that the driver’s partner had said ‘he didn’t mean to do it ‘as a potential admission (when the witness who heard those words stated that the defendant used the word ‘he’, not ‘I’) and also failed to direct the jury that his words (and a further remark that he spent 95% of that day with the driver) could not be used against the driver. However, the court dismissed the appeal on the basis that the alleged admissions were a minor part of the evidence and were overwhelmed by the prosecution’s circumstantial evidence of guilt and the obvious falsity of the driver’s defence.
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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.

4 thoughts on “News: Latest special leave cycle yields five new appeals

  1. Transcripts of the six oral matters are now out. In two of the four that were not granted, the Court declined to hear from the respondent. At least in my mind, this leaves it unclear why the Court opted to hear these matters orally, rather than deciding them on the papers. Costs were awarded against the applicant in both cases.

  2. Dear Jeremy,

    New South Wales Aboriginal Land Council v Minister Administering the Aboriginal Land Rights Act 1983 [2015] NSWCA 349 (and the appeal granted special leave on 17 June 2016) does not concern a native title claim; it is an appeal from a decision of a Crown Minister under s. 36 of the Aboriginal Land Rights Act 1983 (NSW). That statutory regime is distinct from native title (and the Native Title Act 1993 (Cth)).

    Further the New South Wales Court of Appeal upheld the decision of the New South Wales Land and Environment Court, which is a court not an administrative tribunal. The Court does, however, have jurisdiction to reconsider the Aboriginal land claim de novo.

  3. Kendirjian has been partially settled, in relation to the action against the appellant’s solicitor, Lepore. The parties have consented to the High Court allowing Kendirjan’s appeal against the NSW judgments in Lepore’s favour (which applied advocates’ immunity before the High Court narrowed it to exclude settlement negotiations), and remitting it to the NSWDC for determination: The status of Kendirjian’s case against his barrister, Conomos (who also was successful in the NSWDC & NSWCA) appears to be unchanged (for now.)

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