News: 5 new appeals under amended High Court Rules

On 1st July, amendments to the High Court’s rules took effect, including an all new Part 41 on special leave applications. Amongst other changes, the new rules consolidate the application for leave and the summary of argument into a single document (effectively halving the time for lodging all the documents from 56 days to 28 days, and subjecting the totality to a single page limit) and omit existing separate rules on unrepresented applicants and oral arguments in favour of a single rule permitting ‘any 2 justices’ to determine any applicants without an oral hearing.The explanatory memorandum states that ‘[c]onsultations on the changes have taken place with relevant professional organisations and the Special Committee of Solicitors-General.’

One result of the new rules is that there is no longer any public indication as to whether a particular applicant for special leave was represented or unrepresented (as all applications are now determined under new rule 41.08.1.) Rather, all we know is that there were:

  • 32 matters determined without a hearing (2 grants, 30 rejections), heard by Nettle & Gordon JJ (10 matters), Gageler & Gordon JJ (5 matters), Kiefel & Keane JJ (7 matters), Kiefel & Nettle JJ (4 matters) and Bell & Gageler JJ (5 matters), shaking up the previous wholly geographical pairings of judges. French CJ continues to play no role in these determinations.
  • 8 matters determined with a hearing (4 grants, 4 rejections), held in Brisbane (even though none of the matters heard were from Queensland.)

Although the Court’s  2016 calendar describes today is a ‘special leave date’,  no leave applications seem to be listed for determination today. Under the Court’s new approach, dedicated special leave dates are becoming a thing of the past, as, increasingly, are Court sittings in Australia’s two largest cities.

The five judgments that will now be reviewed in the second half of this year by the apex Court are:

  • Commissioner of Taxation v ElecNet (Aust) Pty Ltd (Trustee) [2015] FCAFC 178, which examines what counts as a ‘unit trust’ for the purposes of a regime for taxing such trusts as if they are companies. The Full Court of the Federal Court unanimously labeled the Commissioner’s preferred definition (covering only non-discretionary trusts with fixed percentage interests) as too narrow and the taxpayer’s suggested definition (covering all trusts except purely discretionary ones) as too broad. Rather, it upheld the trial judge’s ruling that a severance scheme relating to the electricity industry was not a unit trust, because its income could be distributed to workers’ employers and to particular workers as ‘appropriate or equitable’, belying the metaphor of each worker holding a ‘unit’ analogous to the way shareholders hold shares.
  • Kilic v The Queen [2015] VSCA 331, which examines whether a 14 year sentence given to a man who set his partner on fire when she decided to leave the relationship was too high. Two judges of Victoria’s Court of Appeal, noting that the sentence significantly exceeded those previously given for even more horrific assaults (ones that lacked this defendant’s accepted remorse, youth and early guilty plea) and that the sentencing judge was apparently emotionally affected by seeing pictures of the victim’s horrific burns shortly before his speedy sentence, reduced the sentence to 10.5 years. A newspaper column has since condemned that decision (together with the contemporaneous ruling of Queensland’s Court of Appeal to reducing Gerard Baden-Clay’s murder conviction to manslaughter, reviewed by the Court this week) as showing ‘a lack of concern for the innocent female victims’ and called for the High Court to intervene.
  • Lewence Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd [2015] NSWCA 288, which concerns judicial review of an adjudication ordering that a contractor make payments to a builder after the agreement collapsed. A trial judge had quashed an adjudicator’s ruling that the plaintiff was entitled to payment under NSW security of payment legislation, holding that no date for a ‘progress payment’ had arisen under the contract. However, NSW’s Court of Appeal held that the existence of such a date was not a ‘jurisdictional error’ that the Supreme Court could review and anyway that the adjudicator’s finding that a relevant date had arisen was open on the evidence.
  • RP v R [2015] NSWCCA 215, which concerns appellate review of a trial judge’s rulings about the criminal responsibility of an 11 year-old for child sexual abuse. The NSW Court of Criminal Appeal unanimously upheld a trial judge’s ruling that the presumption that a child under 14 years old is not responsible for his crimes was rebutted by evidence that the 11 year-old was aware of his 6 year-old victim’s distress and was concerned that his actions would be discovered, thus satisfying the requirement that he was aware that his conduct was seriously wrong. The Court also divided on  whether the judge’s reasoning applied equally to a subsequent similar abuse where there was no evidence of distress or concern and unanimously overturned the trial judge’s ruling that the presumption was rebutted for a later quite different instance of abuse where the defendant desisted when the complainant said he was sick of what the defendant was doing. Despite the latter ruling and the trial judge’s erroneous holding that the 11 year-old held a position of trust over the 6 year-old for the later acts, the child’s sentence of two years and five months imprisonment was upheld.
  • Timbercorp Finance Pty Ltd v Collins and Tomes [2016] VSCA 128 concerns how a 1981 High Court rule on the finality of determined proceedings (‘Anshun estoppel’) applies to individual members of an unsuccessful class action. After a group proceeding challenging the enforceability of loans from the finance wing of a collapsed managed investment scheme due to deficiencies in product disclosure statements was rejected by Victoria’s courts, administrators sought repayments of the loans from two individual borrowers. Victoria’s Court of Appeal held that the two borrowers, despite not opting out of the failed group proceeding, were able to defend the claims on the respective ground that no loan was made and reliance on a representation allegedly made at the time of the loan.
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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.

2 thoughts on “News: 5 new appeals under amended High Court Rules

  1. At some point the Courts are going to have to grapple for good with the sentencing issue where overly lenient sentences of past years are used as precedents to strike less lenient sentences down as manifestly excessive. Too often it seems like “manifestly excessive” is an excuse for appellate judges to substitute their judgment for that of a trial judge without the benefit of being involved in the trial, and it also feels like the doctrine of avoiding emotion in sentencing is taken too far by appellate judges.

    I suspect few members of the general public would regard the Kilic sentence as manifestly excessive, and most would agree with the trial judge that greater deterrence is needed for domestic violence cases. The sentence was within the range allowed by law; that judges have in the past been soft on domestic violence is no reason to bind judges to continue to be soft on domestic violence and prevent them from using the upper end of the sentencing range the legislature has prescribed.

    The High Court’s attitude on this one will be instructive. If they dismiss the appeal I’d expect a pretty big campaign for legislative change on sentencing practices.

  2. The transcripts of all eight oral special leave hearings are now available.

    Of the four granted, one (Timbercorp) did not involve any submissions (presumably because it was related to another matter granted leave on the papers the previous week), while the remaining three heard submissions from both the applicant and the respondent.

    Of the four refused, two (Saleh and Baida) heard only from the applicant, raising the mystery of why they were listed for an oral hearing. Another, Banjima, was quite unusual, in that the Court called for submissions from the respondent first (typically a sure sign that the application would be granted, and also seemingly raising the question of why an oral hearing was scheduled), but then proceeded to call for submissions from the applicant and a ‘reply’ from the respondent before (after a brief adjournment) rejecting the application. The case would is therefore an instance where oral argument changed the court’s mind. The mystery remains of how the court distinguishes between such cases and the many others where no oral hearing is held.

    Aside from Timbercorp, all the matters were decided by two judges.

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