The latest round of special leave determinations is notable for the attention the media gave to some refusals of leave. On Wednesday, the Court published a list of thirteen written refusals of leave. One, refusing Victoria’s Attorney-General leave to appeal Attorney-General v Glass (in her capacity as Ombudsman) [2016] VSCA 306  (where the Court of Appeal held that the Ombudsman can investigate a referral from the Legislative Council concerning entitlements) was reported with the headline ‘High Court delivers embarrassing blow to Andrews government‘, including criticism from the shadow Attorney-General of the challenge’s ‘scandalous waste of taxpayer dollars’. The Court’s disposition (published the next day) stated:

The application for special leave to appeal discloses no reason to doubt the correctness of the decision of the Court of Appeal of the Supreme Court of Victoria.

which does, perhaps, qualify as somewhat embarrassing. A second case, refusing leave from Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181, which held that misleading labelling on Nurofen warranted a penalty of $6M (as ‘the bottom of the appropriate range for the contraventions’), was widely reported, including internationally, through Associated Press under the headline ‘Australian court rejects British painkiller firm’s appeal‘. The disposition stated that ‘The decision of the Full Court of the Federal Court is not attended with sufficient doubt to warrant the grant of special leave to appeal’, which is perhaps a little less embarrassing than the disposition of the Ombudsman matter.

The wider significance of special leave determinations has always been hard to parse, as the Court’s reasons are not always about the merits of the appeal or the arguments made by either side and, anyway, they typically only represent the views of two of the Court’s seven judges. However, the Court’s shift to written determinations, while a welcome saving of (amongst others’) ‘taxpayer dollars’, have made it even harder to judge the flavour of any particular determination, because we no longer have access to clues that would appear i a transcript of the oral hearing about the arguments that were made by each side and the particular views of the judges about the merits and other issues. An extreme illustration is a matter granted leave on the papers on Thursday. Commissioner of the Australian Federal Police v Hart & Ors [2016] QCA 215, part of a decade-long saga of proceeds of crime litigation, is 1275 paragraphs (and nearly 130,000 words) long. Justice Morrison’s judgment begins with a 5-page overview detailing the three appeals dealt with (each with notices of contention), the seven common issues, the sixteen appeal grounds, eighteen determinations of general disputes and the eleven outcomes for particular assets – and his judgment turns out to be in dissent on a number of key issues! The High Court granted the Commonwealth leave in each appeal, but we don’t yet know what arguments they raised (and what notices of contention will  be raised.) We may get a hint when the transcript announcing the written determination s published, but otherwise we will have to wait until the next High Court bulletin (for a brief summary) or the parties’ submissions on appeal (for fuller details.)

Having noted these uncertainties, here are summaries of the four cases where leave was granted last week, all criminal and three from Queensland: Continue reading →