News: Second quarter brings 15 special leave grants

At the year’s halfway mark, the High Court has made twenty grants of special leave to appeal, putting it on track to easily exceed last year’s low-point of thirty-five annual grants. The relatively chipper pace of grants so far (albeit still well off medium-term rates) is largely due to a bumper crop of nine grants – six in oral hearings and three on the papers – in May. The last time so many special leave applications were granted in a single leave cycle was a decade ago when the Court made eleven grants in a single day (12 March 2010.) Three of the new grants made this quarter are listed to be heard in August. That leaves the remaining twelve, plus one criminal matter granted leave in March, to be heard across the last third of 2019 (alongside any urgent or original jurisdiction matters.)

We can currently read the thirteen of the fifteen lower court decisions that the Court agreed to review in the past three cycles: Continue reading

Australian Securities and Investments Commission v Kobelt

A majority of the High Court has dismissed an appeal from the Full Court of the Federal Court of Australia, rejecting the proposition that the respondent’s provision of “book-up” credit to a remote Indigenous community was unconscionable conduct in connection with financial services pursuant to s12CB(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (‘ASIC Act‘).

The “book-up” credit system

The respondent, Mr Kobelt, operated a general store in Mintabie, South Australia, called “Nobby’s Mintabie General Store”. The store sold second-hand cars, food, groceries and fuel. From 2008 onwards, Mr Kobelt supplied a form of credit to customers who were predominantly Indigenous Aṉangu people, most of whom lived in two remote communities, Mimili and Indulkana, within the Aṉangu Pitjantjatjara Yankunytjatjara Lands (‘APY Lands’). The customers were poor and had low levels of literacy and numeracy.

The credit system was called a “book-up” system. Payment for goods was deferred in whole or in part, subject to the customer supplying Mr Kobelt with the keycard and the PIN linked to the bank account into which the customer’s wages or Centrelink payments were credited. Very few transactions were documented carefully or at all. Mr Kobelt had no way of knowing what the balance of the customer’s account was. On the days when the customer had told him moneys were coming in, he would withdraw money in increments  until there were no funds left. He usually retained possession of the keycard until the debt was repaid. However, if the customer left APY lands, they were temporarily allowed to take their keycard on the condition that they would return it when they returned to APY lands. Most of the “book-up” credit was supplied in relation to the purchase of second-hand cars. Because the balance of their accounts was immediately removed when it came into the account, the customers could not buy groceries, but Mr Kobelt would let customers use a portion of what he had withdrawn during that particular pay period (up to 50%) to purchase groceries. Customers were therefore tied to using his store or other stores in Mintabie.  Continue reading

A Threshold of Materiality for Judicial Review: Common Sense or Injustice? Hossain and SZMTA

By Jules O’Donnell

What happens when a government decision-maker breaches a condition regulating the exercise of a statutory power? In what circumstances will an exercise of a power ­— for example, the issue of a licence, the refusal of a visa, or the seizure of property — be rendered invalid because of that breach? Alternatively, when is the breach considered a mere technicality?

In two recent cases, the High Court has revised the way it approaches these questions. Hossain v Minister for Immigration and Border Protection [2018] HCA 34, decided last year, established that administrative decisions are generally not to be invalidated on the basis of procedural errors that are immaterial. Put another way, immaterial errors are not, absent some contrary indication, jurisdictional errors. This proposition has been referred to as the ‘threshold of materiality’. Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, decided in March this year, confirmed that the plaintiff must prove that the breach in question was material to the outcome in order for the decision to be set aside.

In this post, I argue that the primary appeal of the threshold of materiality is that it gives system-wide minimum content to the concept of jurisdictional error. This is significant because the Court has generally resisted developing general norms in this area, instead insisting that jurisdictional error is strictly tethered to the statutory scheme in question. A more generally applicable standard of jurisdictional error could, in some cases, provide much needed relief to courts that must otherwise resort to contestable speculation about legislative purpose.

I also highlight two remaining uncertainties surrounding the materiality threshold. First, the Court has not yet provided a clear justification for why it applies. Its doctrinal precariousness leaves it susceptible to being overwhelmed by exceptions (a number of which have already been hinted at). Second, the plaintiff’s new burden of proof may introduce complexity to judicial review proceedings. New forms of evidence may now be admissible, and courts may be called upon to consider matters that are typically reserved for merits review Continue reading