News: 12 special leave grants in 2019’s final quarter

In the final quarter of the year, the High Court granted special leave in twelve appeals, including four grants made without an oral hearing, bringing the year’s total to 41 grants, including nine on the papers, as well as one referral to a fuller bench.

The twelve cases granted leave from October to December are:

  • ABT17 v Minister for Immigration and Border Protection [2019] FCA 613, concerning conflicting credibility assessments of an asylum seeker’s account. While the Minister’s delegate pronounced a Tamil asylum seeker’s description of physical and sexual abuse by Sri Lankan officials ‘plausible’, the Independent Assessment Authority (after reading a transcript of the interview) doubted his credibility. A Federal Court judge held that the Authority reasonably refused to obtain further evidence to resolve the conflict and that any error about credibility wasn’t material anyway, as both the delegate and the Authority rejected the asylum claim because of the improved situation for Tamils in Sri Lanka.
  • Calidad Pty Ltd v Seiko Epson Corporation [2019] FCAFC 115, on the extent to which a patent holder can stop purchasers from modifying its products. An importer bought used printer cartridges that contained a chip to prevent reuse, altered the chip to allow their reuse and then resold them in Australia. The Full Court of the Federal Court held that the chip modification amounted to a recreation of the manufacturer’s cartridge, breaching its patent and going beyond any licence to use and dispose of purchased products.
  • CCL Secure Pty Ltd v Berry [2019] FCAFC 81, on when damages for deceptive conduct can be reduced because the deceiver would have achieved a similar end without deception. One of Securency’s employees tricked the plaintiff, who had been hired to be Securency’s Nigerian intermediary under a two-year automatically renewing contract, into agreeing to terminate his contract. The Full Court of the Federal Court found that damages were payable for the intermediary’s lost earnings after 2008 (when Securency could have unilaterally terminated the contract lawfully) but not after 2010 (when Securency did terminate most of its agents’ contracts due to its bribery scandal.) The latter ruling reduced the plaintiff’s damages from $65M to $1.8M and left him liable to pay 75% of Securency’s costs.
  • CED16 v Minister for Immigration and Border Protection [2018] FCA 1451, which concerns when an invalid public interest immunity certificate will invalidate an asylum decision . After it was given information that the Minister certified was from a ‘working document’, the Immigration Assessment Authority affirmed the refusal of the asylum application, without choosing not to disclose the new information to the asylum seeker. The Federal Court held that the affirmation was procedurally flawed, because the Authority’s non-disclosure may have wrongly treated the certificate (which failed to disclose why the information attracted immunity) as valid.
  • CXXXVIII v Commonwealth of Australia [2019] FCAFC 54, which concerns when and how the Australian Crime Commission can use its coercive powers. As part of the ACC”s investigation of ‘Highest Risk Criminal Targets’, the applicant was summoned to be compulsorily examined and given a notice to produce ‘forthwith upon service’ all of his electronic devices The Full Court of the Federal Court rejected his arguments that the investigation and (by majority) the notice were too vague to be valid. (The federal Parliament has since retrospectively validated such general ACC investigations.)
  • Hsiao & Fazarri [2019] FamCAFC 37, on when the Family Court can disregard a gift by one party to another when deciding a property settlement. While he was in hospital after a heart attack and prior to their brief marriage, the future husband gave his future wife a 40% share in a $3M house. The Full Court of the Family Court upheld a trial judge’s decision to ignore the deed, rejecting new evidence that the then unrepresented wife failed to produce at the trial (including a medical certificate explaining her absence for most of it) and despite a deed term stating that the gift must be taken into account in any post-divorce proceedings.
  • Lewis v ACT [2019] ACTCA 16, concerning the damages payable to an offender who is invalidly but inevitably ordered to serve full-time detention. After he failed to attend both periodic detention and the hearing of breaching the terms of that detention, a sentencing administration board converted the plaintiff’s sentence to full-time detention, resulting in him serving 82 days in custody. The ACT Supreme Court made two rulings: that the full-time detention order was invalid because the plaintiff was absent from the breach hearing (a decision that was reserved for four years but was not appealed) and that the plaintiff was only entitled to nominal damages (because the full-time detention order was inevitable) and could not be awarded vindicatory damages (a decision that was reserved for two years and was unsuccessfully appealed.)
  • Masson v State of Queensland [2019] QCA 80, on appellate review of findings of medical negligence. Despite finding that an ambulance officer’s failure to speedily give a patient adrenaline left her in a vegetative state, the trial judge rejected her estate’s claim for $3M damages because the officer’s choice was not negligent given the risk of adverse reactions. The Queensland Court of Appeal, finding that the officer had misunderstood the applicable guidelines and that his decision was not supported by evidence from medical professionals, upheld the estate’s appeal.
  • Mondelez v AMWU [2019] FCAFC 138, on how a statutory leave entitlement formula applies to employees with non-standard work hours. The owner of Hobart’s chocolate factory sought a declaration that an enterprise bargain entitling workers who work three 12-hours shifts a week to 96 hours of paid parental/carers’ leave a year is more generous that a statutory entitlement to ’10 days of paid personal/carer’s leave’ per year of service. A majority of the Full Court of the Federal Court refused, holding that the statute entitled them to 10 actual work days’ worth of parental leave (120 hours) rather than to either 10 ordinary days’ or a fortnight’s worth of leave (72 hours.)
  • Northern Land Council v Quall [2019] FCAFC 77, concerning who can certify that all identifiable native title holders in an area covered by a land use agreement have authorised the agreement. The Northern Land Council’s CEO certified that the Kenbi Indigenous Land Use Agreement between the Council and the Northern Territory was authorised by all identifiable native title holders. The Full Court of the Federal Court declared that the Council could not delegate its functions to its CEO and therefore that its 78 elected members would have to pass a resolution making the certification.
  • R v Coughlan [2019] QCA 65, on whether an arson conviction should have been ruled unsafe. After the defendant’s house blew up, he was seen running away from it covered in burns and an expert testified that his clothes had been in contact with petrol at some point, a jury found that he had set a fire to claim insurance. The Queensland Court of Appeal unanimously rejected his claim that his wealth, lack of financial difficulties and the uncertain cause of the explosion left his verdict unsafe, finding that the alternative hypotheses advanced by the self-represented defendant at his trial were mere conjecture or speculation.
  • The Queen v Cumberland [2019] NTCCA 14, concerning the resentencing of an offender as he was about to be released. A young defendant, who pled guilty to supplying large quantities of cannabis, including to a 16-year-old, and ecstasy, was sentenced to four years six months in prison, to be suspended after two years. The Northern Territory Court of Criminal Appeal ruled the sentence inadequate and, eleven months later and one week before he was due to leave prison, added three-and-a-half years to his minimum time in custody.
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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.

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