News: Kiefel J’s last judgment, Kiefel CJ’s first

Yesterday’s two judgments mark the final step of the transition from the French Court to the Kiefel Court. Until this week, judgments published by Susan Kiefel have been attributed to ‘Kiefel J’, even though she has been Kiefel CJ since January 30th. In today’s two decisions, the first, Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12, has a joint judgment attributed to ‘Kiefel, Bell & Gordon JJ’, while the second, Kendirjian v Lepore [2017] HCA 13, has a solo judgment attributed to ‘Kiefel CJ’. The obvious explanation of the shift is that ‘Kiefel J’ is used for judgments where Susan Kiefel was still a mere Justice when she sat at the hearing. Ecosse was heard on 14th December last year, at a time when Robert French was still Chief Justice – he had six weeks left in the role – but by then he had not heard any cases for over two months and the Court had already held a ceremony to mark his retirement. By contrast, Kendirjian is the fifth case heard by the High Court since Susan Kiefel became Chief Justice, but the first to be decided.

So, what were the first ever words in a judgment by Kiefel CJ?:

I agree with Edelman J.

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Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on contract clause amendments and liability for rates and land taxes. The respondent is the current tenant on an ambiguously amended old-form 99-year lease, concluded between an earlier landlord and tenant in 1981, over farmland now owned by the appellant. Clause 4 of the lease stated, and was amended by striking through, that: ‘all rates taxes assessments and outgoings whatsoever excepting land tax which during the said term shall be payable by the Landlord or tenant. A majority of the VSCA held that this clause left the landlord liable for those payments including land taxes levied upon the landlord. Kyrou JA, in dissent, held that this interpretation was not tenable because of the existence of cl 13, which required the tenant to pay the entire 99-year rent in advance, Continue reading

Kendirjian v Lepore

The High Court has allowed two appeals against a decision of the New South Wales Court of Appeal on advocates’ immunity. The appellant was the plaintiff in a car accident matter. The appellant sued his solicitor (Lepore) and barrister (Conomos) for professional negligence after they informed him that a settlement offer had been made just before trial, but allegedly failed to tell him the amount ($600,000). Instead, the appellant claimed the respondent lawyers rejected the offer without seeking instructions on the basis that it was too low, and advised him that his claim was worth twice as much. Upon the claim succeeding, the appellant received only $300,000. The NSWCA held that the advice or omission to advise was out of court conduct that led to the continuation of Court proceedings, and consequently fell within the scope of advocate’s immunity. After the NSWCA’s judgment, the High Court handed down its judgment in Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16, holding that advocate’s immunity does not extend to negligent advice that leads to a settlement between the parties. On appeal to the High Court, the appellants contended that Continue reading

News: Kiefel CJ describes and defends her Court’s judicial method [updated]

The new Chief Justice of the High Court, Susan Kiefel, gave the 2017 ‘Supreme Court Oration‘ in Brisbane last week to a sell-out crowd. I dare say it is one of the most significant speeches a sitting Chief Justice has given, outlining in detail the High Court’s current process for producing judgments and responding to some criticisms of that Court’s approaches, including those of former High Court judge Dyson Heydon and current President of the NSW Court of Appeal, Margaret Beazley. The Australian Financial Review covered the speech as favouring ‘productivity over prose‘, and contrasted her approach to one-time law student favourite Lord Denning. The Chief Justice’s line:

I have always assumed it to be a universally held view that a judgment should be as succinctly stated as the matter allows.

has the potential to be her version of Dixon CJ’s famous, and much debated, pronouncement: ‘There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.’

The 12-page speech has far too much detail to cover in a short news post. However, one passage, explaining one reason she deprecates unnecessary separate judgments, caught my (and the Australian Financial Review‘s) eye: Continue reading

News: Three grants of leave

Last week’s special leave hearings broke a four-month drought in appeals granted special leave ‘on the papers’. There were three grants of leave announced, one on Wednesday (without a hearing) and one each on Friday’s two oral hearings in Brisbane and Sydney.

The three appeals that will now go to the High Court are:

  • Compton v Ramsay Health Care Australia Pty Ltd [2016] FCAFC 106, which concerns the circumstances when a person who a court previously held owed a debt and is now bankrupt can now argue that he didn’t owe the debt. In 2015, the NSW Supreme Court held that the respondent owed just under $10,000 to the applicant after guaranteeing a now bankrupt company’s debts, rejecting his argument that details of the debt were not attached to the papers he signed and that he wasn’t aware of them. After he went bankrupt and the applicant applied to sequester the debt (preserving it from the demands of other creditors), he submitted new financial evidence challenging whether the bankrupt company ever owed anything to the respondent. The Full Court of the Federal Court unanimously held that the trial judge should have opted to inquire into whether any debt was owed, even though the applicant never challenged the amount of the debt in the NSW Supreme Court.
  • Kennedy & Thorne [2016] FamCAFC 189, which examines the enforceability of binding financial agreements (colloquially known as ‘pre-nups’), where one party insists on the agreement as a pre-condition to marriage. The parties to a 2007 marriage differed in assets (none vs $18M),  Australian immigration status (a tourist visa vs Australian citizenship) and English fluency (little vs complete.) A week before they married, they signed an agreement prepared by the richer party’s solicitor, despite the poor party receiving independent legal advice that the agreement was ‘no good’ and (about a further agreement shortly after the marriage) ‘terrible’. Ruling after their 2011 separation and the richer spouse’s death in 2014, the Full Court of the Family Court overturned a trial judge’s finding that the agreement was the result of duress, holding that the trial judge failed to provide adequate reasons for the finding of duress and failed to make a finding of unlawful pressure (as opposed to a mere threat not to marry), instead holding that the agreement was binding on both parties.
  • Shop, Distributive & Allied Employees Association v ALDI Foods Pty Ltd [2016] FCAFC 161, concerns the process for approving a regional enterprise agreement with employees who are presently in a different region. After the majority of seventeen employees of Aldi who were offered roles in a new ‘region’ of the company’s operations (on the NSW/SA border) voted to approve an enterprise agreement and the agreement was approved by the Fair Work Commission, the union (which was not involved in the earlier agreement) challenged the agreement on three grounds. A majority of the Full Court of the Federal Court held that the agreement could not be approved because it failed a statutory requirement that ‘the agreement has been genuinely agreed to by the employees covered by the agreement’ – at the time of the vote, the new region had no employees. The same majority also held that the Commission failed to properly apply the requirement that the employees be ‘better off overall’, relying instead on a clause in the agreement that promised the employees equal (but not better) terms than the award. But the Court unanimously held that it could not invalidate the agreement because of a one-word deviation between the notice given to the employees and the required wording, because, to the extent that the different wording was important – something the three judges differed on –  the Commission’s failure to act on it was not a jurisdictional error.

Prior v Mole

The High Court has dismissed an appeal against a decision of the Northern Territory Court of Appeal on the legality and consequences of a public drunkenness arrest. Two police officers fined the appellant for drinking in public and, following an altercation, took him into protective custody purportedly under s 128 of the Police Administration Act (NT). Section 128(1) allows a police officer to take a person into custody if the officer has reasonable grounds for believing the person is intoxicated in a public place and because of that intoxication is unable to care for him or herself, may intimidate, alarm or cause substantial annoyance to people, or is likely to commit an offence. The appellant was acquitted on a charge of disorderly behaviour, Continue reading

Kumar v Minister for Immigration and Border Protection

The High Court has allowed an appeal against a decision the Federal Court of Australia on the extension of time limits on visa applications that fall on a weekend. The appellant received the respondent’s application for a temporary student visa on a Monday and rejected it on the basis that the applicant must hold a temporary graduate visa, which for the respondent had expired on the Sunday immediately before. North J allowed the applicant’s appeal, holding that s 36(2) of the Act Interpretation Act 1901 (Cth), which provides that where an act ‘requires or allows a thing to be done’ and the ‘last day’ for doing it is a Saturday, a Sunday Continue reading

Perara-Cathcart v The Queen

Jeremy Gans, ‘News: The High Court Splits Three Ways on Three-Way Splits’ (1 March 2017).

The High Court has dismissed an appeal against a decision of the Full Court of the Supreme Court of South Australia on the use of evidence of illegal drug dealing within a rape trial. A jury convicted the appellant of rape and making a threat to kill against K. During the trial the prosecution led evidence from K and her boyfriend J that the appellant had supplied them with methylamphetamine prior to the rape and death threat incident, and marijuana at a later date. The SASCFC held that both K and J’s evidence was admissible in the appellant’s trial because they cast light on both the prosecution’s claim that the rape Continue reading

Bondelmonte v Bondelmonte

The High Court has dismissed an appeal against the Full Court of the Family Court on whether teenage children removed from Australia in breach of a parenting order must return despite their expressed unwillingness to do so. Following the Bondelmontes’ separation in 2010, the Family Court made equal shared parenting orders with living arrangements to be decided by the parties and the children. In 2016, the father removed the two teenage boys to the United States, where they stayed for more than 14 days, in breach of the parenting orders. A majority of the Full Court of the Family Court upheld the trial judge’s order Continue reading

News: The High Court splits three ways on three-way splits

Today’s decision in Perara-Cathcart v The Queen [2017] HCA 9 reviews a split decision in the Full Court of South Australia’s Supreme Court, which Gageler J’s judgment usefully describes with a table:

This combination raises a long-standing puzzle about the judgments of multi-member courts that have to decide two different issues in a particular case and manage to produce a three-way split. Continue reading