The High Court’s August round of special leave deliberations has yielded six grants of leave to appeal, following a very slow start:
- Wednesday 24th: None out of 3 applications granted (on papers, Bell & Keane JJ)
- Thursday 25th: None out of 7 applications granted (on papers, Nettle & Gordon JJ)
- Tuesday 30th: None out of 8 applications granted (on papers, Bell & Gageler JJ)
- Wednesday 31st: None out of 6 applications granted (on papers, Bell & Keane JJ)
- Thursday 1st: 3 out of 21 applications granted (on papers, 7 Kiefel & Keane JJ (no grants), 7 Kiefel & Nettle JJ (1 grant), 7 Gageler & Gordon JJ (2 grants))
- Friday 2nd: 3 out of 7 applications granted (oral hearings; 4 Kiefel & Nettle JJ (2 grants), 3 Gageler & Gordon JJ (1 grant)). (There was also a further matter where leave was granted and the appeal allowed, by consent of the parties.)
As usual, French CJ did not decide any special leave matters. As per recent practice, the pairs of judges assigned are no longer always geographically connected. One interesting development is just two pairs of judges were responsible for all six grants (both written and oral), with Gageler & Gordon JJ responsible for all the criminal grants and Kiefel & Nettle JJ responsible for all the civil grants. There also appears to be a slight increase in information included with the refusals, for example Bell & Gageler JJ’s refusal of leave to Matthew and Elizabeth Pallet, campaigners in favour of medical cannabis, which indicates that their unsuccessful argument was a constitutional challenge to Victoria’s drug laws.
The six cases in which grants were made are:
- AAR15 v Minister for Immigration and Border Protection  FCA 150, which concerns how the Administrative Appeals Tribunal should make findings about the current status of ethnic conflicts. The applicant, from the Democratic Republic of Congo, sought refugee protection on the basis of his membership of the Kasai-Luba ethnic group, which he asserted was subject to persecution by the Katangan-Lunda ethnic group. Justice North in the Federal Court rejected an argument that the Tribunal unreasonably relied on a 2006 report of the International Crisis Group (which reported that tensions between the groups had decreased in the applicant’s province), rather than a 2011 report of the Minority Rights International Group (which said the Kasai-Luba were at risk of genocide), to deny the application.
- Hughes v R  NSWCCA 330, an unsuccessful appeal against a conviction for nine child sexual offences from the 1980s and the resulting sentence of 10 years and nine months by a former actor in the TV series ‘Hey Dad!’. In his appeal against conviction, the arguments the NSW Court of Criminal Appeal rejected included ones that: the trial should have been stayed due to immense pre-trial publicity; the trial judge wrongly allowed evidence from some of the complainants and other witnesses to be used to argue that the defendant had a tendency to commit certain sexual offences, despite dissimilarities in their various accounts and the risk that some accounts were ‘contaminated’ by the publicity; and the trial miscarried because of inappropriate comments made by the prosecutor (such as inviting the jury to ‘tell’ the defendant that he was a criminal.) In the appeal against sentence, arguments rejected included that the sentencing judge: overstated the seriousness of the offences; had insufficient regard to 1980s sentencing practices; and failed to have regard to the hardships the defendant faced in prison. (The NSW court did ask the Crown to refer the prisoner’s alleged treatment to the Minister for Corrections.)
- Kumar v Minister for Immigration and Border Protection  FCA 177, which concerns how visa applications are affected by a general provision extending time limits that fall on a weekend. The applicant had his application for a Student (Temporary) (572) visa, received by the Minister on a Monday, rejected because of condition of such visas is that the applicant hold a Temporary Graduate (485) visa and the applicant’s 485 visa had expired over the weekend. Justice North of the Federal Court held that a provision of the federal Acts Interpretation Act that extends time limits that fall on a weekend or holiday to the next weekday meant that the applicant’s one-day late application nevertheless satisfied that visa condition.
- Mole v Prior  NTCA 2, which concerns the legality and consequences of an indigenous defendant’s arrest for public drunkenness After an altercation on a Darwin shopping street between the defendant and two police officers who first ticketed him for drinking in public and then detained him, a magistrate acquitted him for disorderly behaviour (for swearing at the police) but convicted him for assaulting a police officer (for spitting at the police as he was arrested) and indecent behaviour (for trying to urinate on the police in the paddy wagon.). The Northern Territory Court of Appeal held that a single judge of the Supreme Court rightly ruled that the arrest was lawful (despite an alleged lack of evidence that the defendant would either drink again or intimidate anyone after the police intervened) and wrongly ruled that the arrest was improper (due to the police’s alleged failure to consider non-arrest alternatives.) Interestingly, one of the arresting officers was also an arresting officer in a high profile 2012 death-in-custody case in Alice Springs.
- R v Perara-Cathcart  SASCFC 103, which concerns the admissibility and use of evidence of illegal drug dealing in a rape trial. The Full Court of South Australia’s Supreme Court unanimously held that both the complainant’s (and her boyfriend’s) claims that the defendant was a drug dealer and his admission to police that he possessed a quarter of an ounce of cannabis were admissible in his trial for a rape, because they cast light on both prosecution claims that the rape occurred in the course of his meth dealing and his counter-claim that the rape allegation was devised to deflect police attention from the boyfriend’s cannabis dealing. However, three judges split on the adequacy of the trial judge’s direction about how the jury should and shouldn’t use the cannabis evidence, with one judge holding that the direction was adequate, one holding it was inadequate and merited a new trial and one holding that it was inadequate but did not merit a new trial.
- Western Australian Planning Commission v Southregal Pty Ltd  WASCA 53, a dispute over who can claim compensation when private land is affected by a public purpose reservation. The plaintiffs, who were in the process of purchasing the land at the time it was made subject to the reservation, later sought compensation after their development application was rejected due to the reservation. Noting that the question of whether compensation is available to subsequent purchasers was considered by the High Court in 2004, but the Court split evenly, the Western Australian Court of Appeal resolved the compensation eligibility question in favour of the plaintiffs.
Re Kumar v Minister for Immigration and Border Protection. It amazes me that this had to go all the way to the High Court to get sorted out. I did my degree 22 years ago and statutory interpretation was fundamental. Like learning the alphabet. I didn’t practise, but even I can still recognise the inanity of this case. Don’t the Immigration mandarins and baby lawyers know enough these days to be able to deal with this issue at source? Or does it simply reflect government policy to make it as hard as possible for immigration “clients” at all necessary public expense?
While one suspects the latter, the HCA has granted special leave and there is a point in there which is not really described in the precis.
The key passage of the primary judge’s decision, upon which the Commonwealth relies, is:
“The problem in the present case is that cl.572.211(2) does not, in express terms or in its effect, prescribe or allow anything to be done on a particular day. In my opinion, cl.572.211(2) identifies a state of affairs that must exist as part of the criteria for the making of a valid application and, accordingly, s.36(2) of the Acts Interpretation Act has no application. In my opinion, that state of affairs or state of things for the purpose of a valid application, is a real distinction from a provision that, in its terms or in its effect, requires or allows a thing to be done.”
Justice North disagreed, but the grant of special leave suggests it might not be cut and dried.
I agree that there is a genuine legal issue about the meaning of s36(2) to be decided, despite the seeming trivial nature of the difference in this case. Playing devil’s advocate for the department, they may see themselves in something of a bind if they are required to reject applicants with expired visas (without discretion.) Justice North’s ruling perhaps resolves the point in relation to this combination of visas, but perhaps not others, and maybe this situation of people mailing in applications on the Friday before is a common one? In some ways, this is a legacy issue of snail mail applications, with their pesky weekend delays.
Stillman v Rusbourne, the case decided by consent (!) – that’s the advocate’s immunity case. It strikes me as very unusual that an advocate’s immunity case, knocked back by the trial judge and knocked back at Court of Appeal level, and with no particular reason to think this High Court is going to change course on that doctrine, has resulted in the appeal being allowed by consent. It would be interesting to know what it was, lest people just look at the case result and get the idea that the HCA has overturned advocate’s immunity.
One can really only think of two sensible explanations- the more likely, that someone has uncovered a fatal technical flaw in the original application to dismiss the proceedings. The less likely, that the matter settled and it was a stipulation in the settlement agreement that the appellant be allowed to enter consent orders showing that they “won”.
Thanks Arky for pointing this out. Stillman v Rusbourne was decided in the NSWCA before Attwells was decided. Could it just be that the parties agreed that the High Court’s narrowing of advocates’ immunity in Attwells meant that the appeal was bound to succeed? That would explain not only the parties’ stance, but also the High Court’s willingness to participate in this way. I agree, though, that it is unsatisfactory not to have more information. The HCA could have given short reasons explaining its concurrence in the consent order, for instance.
Ah, hadn’t picked up on the timing. That is probably the issue. Still should be explained, really.
A brief note on the four rejected grants in last Friday’s oral hearings: one (Mulitgate Medical Devices) had three judges instead of the usual two (indicating that the first two to consider the matter disagreed) and the judges adjourned for 5 minutes, before announcing that the case wasn’t a ‘suitable vehicle’. The remainder had two judges – in one case, Stretton, adjourning for a minute before refusing leave.)
While Mulitgate exemplifies the utility of oral hearings, a different case, JR Consulting, appears to do the opposite. In JR Consulting, Gageler J commenced by observing that ‘there are many aspects of this application that make it distinctly unattractive for a grant of special leave to appeal’, which may have left the appellants wondering why an oral hearing was listed. They had to pay the costs of the respondents, who brought an SC and junior – asked to address the HCA on just one point, and eventually cut off by the Court. The appellants only brought a lone non-Q/SC barrister.
AAR15, as far as the High Court is concerned, has now been settled, with the High Court allowing the appeal, quashing the relevant decisions and remitting the matter to the Federal Circuit Court: http://www.austlii.edu.au/au/cases/cth/HCATrans/2016/267.html.