News: Six new High Court cases

At last Friday’s oral special leave hearings, it was easier to ask which cases didn’t get special leave. There were just two and they were both quite interesting – a NSW decision upholding a high-interest short-term loan (now $670K plus $2.4M interest!) even though the lender (correctly) believed that the borrower had fallen for a Nigerian fraud scam; and a Victorian holding that a pregnancy the military failed to detect is not a ‘service injury’ (and therefore is not limited by a statutory military compensation scheme.)

The five new appeals that made the grade were:

  • Falzon v The Queen [2017] VSCA 74, a case about how the prosecution can go about proving that a cannabis crop was grown for a commercial purpose. A majority of the Court of Appeal held that the trial judge was wrong to admit evidence of $120,000 in cash found by the police at the accused’s house but not otherwise shown to be linked to the cannabis crops he grew at other locations. (The Court also unanimously dismissed the defence’s argument that the prosecutor unlawfully filed fresh indictments after the jury had been sworn.)
  • Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Limited [2017] FCAFC 74, a dispute over the alleged stealing of confidential information and clients by employees of a funeral planning company. After finding that the employees had breached their duty and that their later employer (another funeral planning company) participated in that breach, the trial judge nevertheless refused to order an accounting of the second company’s profits. The Full Court held that the order should have been made, rejecting the defendant’s argument that the the second company’s complicity (in equity and under statute) in the shenanigans only accelerated, but did not cause, its later profits.
  • Miles v SAS Trustee Corporation [2017] NSWCA 86, a dispute over extra superannuation that is payable for a police officer ‘hurt on duty’. When the officer was medically discharged in 2003, the Commissioner certified that he had suffered a spinal injury on duty, eventually yielding superannuation at 82.5% of his salary. A majority of the NSW Court of Appeal ruled that the superannuation should be raised to 85% due to post-traumatic stress disorder, even though that disorder arose after the officer left the police.
  • Thomas v Commissioner of Taxation [2017] FCAFC 57, which concerns how franked (already taxed) income is distributed to trust beneficiaries. The Full Court of the Federal Court ruled that the distribution is determined under federal law based on how all trust income is distributed.¬† Nevertheless, the Court held that the Commissioner was bound by a Queensland Supreme Court declaration in 2010 that this particular trust effectively distributed franked benefits in a different way.
  • Traljesic v Bosnia and Herzegovina [2017] FCAFC 70, an extradition request for the return of a man who absconded to Australia part-way through his sentence for attempted murder.The Full Court of the Federal Court rejected the prisoner’s objection that his return would expose him to politically-motivated violence by other prisoners, because the prison authorities had not been complicit in that violence (but merely failed to stop it.) The Court also rejected his objection to the magistrate’s admission of recent letters from Bosnia concerning the present political situation (which raised the complex issue of how the uniform evidence law applies in extradition appeals) because the magistrate said that the letters were unimportant.

Also on Friday, the Court granted special leave and then instantly allowed a set of criminal appeals by three participants in a 2015 protest at the Nauru parliament, whose sentences for rioting and disturbing parliament had been¬†substantially increased by Nauru’s Chief Justice.

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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.

One thought on “News: Six new High Court cases

  1. Prediction for you, Jeremy, concerning what the HC will decide in the appeal from Thomas v Commissioner of Taxation in the FCFCA. This case concerns streaming (allocating) of franking credits by a trustee to certain beneficiaries of the trust in ways different to the streaming (actually paying over) of the dividends. The FCFCA said, ‘…the rights of the beneficiaries flowing as against the Commissioner from Div 207 of the [Income Tax Assessment] 1997 Act depended wholly upon the effect of the rights created as between the trustee and the beneficiary by whatever the resolutions may have achieved. The rights to be created by the trustee as against the Commissioner were a matter wholly within the control of the trustee and it was in the jurisdiction of the Supreme Court to make declarations concerning the proper construction of what the trustee had done pursuant to a domestic trust.’–Pagone J at [27].

    Not so.

    Creation of rights to amounts of income according to trust law is wholly within the trustee’s powers — but trust law knows nothing of franking or imputation credits and the rights to be created by the trustee ***as against the Commissioner*** are not or certainly not wholly within the control of the trustee. The HC will not overrule Executor Trustee and Agency Co of South Australia v Deputy Federal Commissioner of Taxes (South Australia) (1939) 62 CLR 545, but will find that the FCFCA has misapplied the principles stated in Executor Trustee.

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