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  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  NSWCA 35 and Westpac Banking Corporation v Lenthall  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  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  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  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  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  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  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  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  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  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  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.