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:

  • Boensch as trustee of the Boensch Trust v Pascoe [2018] FCAFC 234, which concerns a caveat lodged over a Sydney property by the owner’s bankruptcy trustee who wrongly argued that the owner’s own trust was invalid. The NSW Court of Appeal rejected the owner’s claim that the caveat was wrongly lodged, holding that the property still vested in the bankruptcy trustee anyway and, in any case, the bankruptcy trustee reasonably believed that he had a caveatable interest in the property.
  • Brewster v BMW Australia Ltd [2019] NSWCA 35 and Westpac Banking Corporation v Lenthall [2019] FCAFC 34, a pair of class action matters that were heard simultaneously by two different courts in the same room at the same time. The NSW Court of Appeal (hearing an action against car manufacturers over alleged faulty airbags) and the full court of the Federal Court (hearing an action against a bank over alleged conflicted insurance advice) made identical holdings that judges in their respective courts are empowered by local statutes to order the pooling of damages awarded to class members who have not opted out of the action and the payment of some of those damages to a litigation funder. They also each held that the respective statutes providing for such orders are constitutional.
  • CNY17 v Minister for Immigration and Border Protection [2018] FCAFC 159, involving a rejection of an asylum seeker’s claim for protection by a decision-maker who was told about the asylum seeker’s alleged and proved crimes (and reports about them) during his time on Christmas Island A majority of the full court of the Federal Court rejected a claim of apprehended bias as that the criminal matters were properly before the decision-maker as relevant to any visa decision that would have followed a successful asylum claim. The court also held that the Immigration Assessment Authority, acting under the ‘fast track’ process, did not breach rules of procedural fairness.
  • Commissioner of Taxation v BHP Billiton Limited [2019] FCAFC 4, on the Australian taxation of foreign companies that market Australian company’s goods. A majority of the full court of the Federal Court held that BHP Billiton’s offshore marketing subsidiary was an associate of its Australian minority owner in the BHP Billiton corporate group, because a dual listing arrangement between the majority and minority owners gave the latter ‘sufficient influence‘ over the subsidiary.
  • Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2018] FCAFC 237, on the customs classification of vitamin and weight loss gummies. A full court of the Federal Court held that the Administrative Appeals Tribunal correctly concluded that neither was ‘food’ (and that the purpose of the weight loss gummies was ‘cosmetic’) and rightly classified both as ‘medicaments’ (free of customs duty,) In particular, the court rejected  the Comptroller’s argument that the gummies’ ‘general’ (rather than targeted) health benefits and high sugar-content meant that they should be treated as food supplements (attracting 4-5% duty.)
  • Guode v The Queen [2018] VSCA 205, which addresses the sentence for child homicide that occur simultaneously with a mother’s (less culpable) killing of her infant child due to mental illness. After the offender deliberately drove her car into a lake, the prosecutor accepted her guilty pleas to the attempted murder of her five-year old, the murder of her four-year old twins and the infanticide of her 16-month-old. Reasoning that the prosecution’s acceptance of the infanticide plea meant that it accepted that her mind was disturbed for all of the killings, Victoria’s Court of Appeal reduced her murder sentences from 22 to 16 years,
  • Helicopter Resources Pty Ltd v Commonwealth of Australia [2019] FCAFC 25, concerning the legal aftermath of a helicopter pilot’s death in Antarctica. Pursuant to a federal law applying ACT law to the Australian Antarctic Territory, ACT courts are simultaneously conducting a coronial inquest into the pilot’s death and hearing summary workplace safety charges against both the helicopter company and the Commonwealth. After holding that it had jurisdiction to review decisions of the ACT coroner, the full court of the Federal Court barred the coroner from compelling the helicopter company’s chief pilot (who was not being prosecuted) could not be forced to testify at the inquest until the criminal proceedings against the helicopter company were finished.
  • King & Ors v ASIC [2018] QCA 352, on whether a person who holds no formal office in a company can be liable for breaching an officer’s duties relating to that company. After a managed investment company used money obtained as the responsible entity of a management investment scheme to make payments to other members of its corporate group, ASIC brought civil penalty claims against  multiple directors both for being involved in the payments and for breaching their duties as officers of the responsible entity. Queensland’s Court of Appeal upheld all the claims except the defendant’s – a director of the corporate group with significant influence over the managed investment scheme who had resigned from the scheme’s board before the payments were made – because his lack of any office in the responsible entity meant that he could not have breached his duties as an officer of it.
  • Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238, concerning non-owner rights in native title. The full court of the Federal Court held that spiritual links (‘rayi’) or ritual leadership associated with land  are not rights in relation to the land but instead personal connections to people on that land. The full court also held that people with existing public access to land should not be noted in a native title determination as ‘other interests’ in that land.
  • R v De Silva [2018] QCA 274, concerning how jurors should be directed about statements made by the defendant in a police interview. At a rape trial where the defendant didn’t testify but the jury was shown statements he gave to the police, the trial judge told the jury: ‘it is entirely up to you what use you make of them and what weight you give to them’. The Queensland’s Court of Appeal held that there was no need for the trial judge to specifically tell the jury to acquit if they either believed his police account or were left in reasonable doubt by it.
  • Robinson v State of New South Wales [2018] NSWCA 231, on when NSW police can arrest people who voluntarily attend at a police station. After hearing that police were looking for him the plaintiff went to a Sydney police station, was arrested and interviewed over an alleged breach of an apprehended violence order, but then released without charge. A majority of the NSW Court of Appeal awarded him $5000 for false imprisonment in light of the officer’s evidence that he had not decided to charge the plaintiff at the time of the arrest.
  • Rojoda Pty Ltd v Commissioner of State Revenue [2018] WASCA 224, on whether stamp duty must be paid on deeds winding up two partnerships. The Western Australian Court of Appeal held that no duty was payable, as the deeds merely confirmed the partners’ existing equitable interests after the partnerships dissolved when one partner died.

As is increasingly common, we cannot currently read the other two judgments under appeal, both from NSW criminal matters. In one – where the legal issue is an appeal court’s review of a ruling excluding evidence as unlawfully obtained – both defendants are named but the judgment below simply states (without explanation): ‘The text for this decision has been restricted.’ In the other – where the legal issue is whether an appeal court can increase a fraud offender’s sentence by relying on information that was not provided to the accused – the defendant is not named and the decision below is not available, due to a suppression order made by the NSW Court of Criminal Appeal.

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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.

2 thoughts on “News: Second quarter brings 15 special leave grants

  1. The grant of leave in the Helicopter Resources matter is interesting-the inquest is currently in progress and will be complete by the time the High Court hears the matter,so the chief pilot will not be compelled to testify.The issue of whether a grant was pointless was raised by bench(Nettle & Gordon JJ),but pressed by the Solicitor General on the basis that it was important to all Commonwealth prosecutions and if leave were not granted in this case,another test case would have to be “manufacture(d)”,and the defendant was willing,so far,to be a contradictor.
    Don’t be surprised if this issue arises again at the hearing.

  2. Probably not so different from Alinta [2008] HCA 2, where the Court decided a case that had settled before the final hearing. Kirby J explained as follows at [22]-[27]:

    “By the time the matter came before this Court for hearing, a preliminary issue had arisen. It concerned whether special leave should be revoked in light of the settlement of the commercial dispute between the litigants in the Federal Court.

    By the time of the hearing in this Court, those parties had neither the interest nor the desire to maintain their earlier constitutional arguments. Thus, the Alinta parties properly notified that they had arrived at a settlement of their dispute with Australian Pipeline Ltd. They filed a summons seeking revocation of the grant of special leave to the Attorney-General of the Commonwealth. In support of this, they filed written submissions pointing out that, in effect, the controversy which they had originally brought to be quelled by this Court had (so far as they were concerned) disappeared.

    On the other hand, revocation of the grant of special leave and the discontinuance of Alinta ‘s application would leave standing the orders favoured by the majority of the Full Court, including the judicial declaration that s 657A(2)(b) of the Act was invalid under the Constitution. It would also leave undisturbed the reasons of the Full Court upholding those orders. Until altered by other and later proceedings in the Federal Court or in this Court or by valid legislative amendments, this outcome would cast a shadow over the validity of the activities of the Panel in the important work committed to it by the Act.

    Potentially, the result of such an outcome might be to expose the Panel and its members to liability for purporting to act under powers which the Full Federal Court had held to be constitutionally invalid. It would cause uncertainty and inconvenience to “private parties” involved in takeovers disputes. Without doubt, it would be an unsatisfactory outcome. If this Court were to revoke special leave earlier granted to the Attorney-General, litigants would inferentially enjoy access to the courts upon the hypothesis of the invalidity of s 657A(2)(b) of the Act until some other challenge was “fast-tracked” to bring the issue back to the Full Court or to this Court for fresh determination. The inconvenience of this outcome is manifest, and so is its potential importance. Nevertheless, convenience and public importance do not control the application of basic constitutional principles.

    Into the breach, the Attorney-General of the Commonwealth entered to offer relief. He pointed out that, in the Federal Court, he had intervened in the Alinta proceedings in order to support the validity of the contested provision of the Act. He therefore asserted a statutory status as a “party”, in consequence of his intervention in that Court[26]. He submitted that this continued to sustain his appeal challenging the Full Court’s declaration of invalidity. He emphasised that the issue that the appeal sought to raise remained one of general public importance.

    Endeavouring to cure the problem presented by the departure of the original parties, the Attorney-General made arrangements for counsel to appear to seek leave to be heard as amici curiae to provide arguments contesting his own submissions and supporting the reasons and declaration of the Full Court majority. In effect, therefore, the Attorney-General was at once presenting his appellate attack on the Full Court’s declaration and supporting advocacy by independent counsel to sustain its correctness. To say the least, this is an unusual position for a “party” to real litigation in this country to find itself in.”

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