News: Five new appeals to be heard after the pandemic

In a notice titled ‘COVID 19’, the High Court has cancelled appeal and original jurisdiction hearings through to (at least) June:

Following the adoption of policies restricting travel and meetings and remote workplace arrangements it has been decided that the High Court of Australia will not be sitting in Canberra or on circuit in the months of April, May and June.  The question of future sittings will be reviewed in June.

The notice specifies that ‘the Court will continue to deliver judgments’ – there are eight judgments and one set of reasons presently reserved – and ‘will deal with special leave applications including hearings as necessary at individual registries’.

The notice’s principal effect is on the progress of as yet unheard matters in the Court’s original jurisdiction or where special leave has been granted. When the Court made its COVID announcement, there were twelve such matters, including five that had been listed to be heard in April:

  • ABT17, a refugee matter (listed for April)
  • Berry, on damages for deceptive conduct (listed for April)
  • Calidad, a patent dispute about single-use ink cartridges
  • Cumberland, a Northern Territory sentencing appeal (listed for April)
  • CXXXVIII, a dispute about the Australian Crime and Intelligence Commission’s powers
  • Hsiao, a family law dispute about a deed of gift
  • Lewis, on damages for wrongful detention (listed for April)
  • CED16, a refugee matter on public interest certificates (listed for April)
  • Mondelez, on leave entitlements for shift workers
  • Quall, on authorising native title agreements
  • Private R, a constitutional challenge to a military prosecution
  • Masson, a negligence suit against ambulance officers

These matters seemingly won’t be heard until at least the first week of August.

To these must now be added a further five cases where special leave to appeal was granted this week, the first such grants this year:

  • Abdirahman-Khalif v The Queen [2019] SASCFC 133, an appeal against a conviction for membership of a terrorist organisation, specifically Islamic State. After the accused was stopped en route to Turkey, police searches and bugs yielded evidence of her swearing allegiance to Islamic State’s then head and planning to go there to marry and provide medical support to fighters. A majority of the Full Court of the Supreme Court of South Australia quashed her conviction, ruling that merely living in Islamic State does not amount to membership of the organisation that runs Islamic State.
  • Deguisa  v Lynn [2019] SASCFC 107, a civil appeal concerning the enforcement of a restricted covenant applying to subdivided lots. The parties were both current owners of lots of land that were subdivided in 1963, including a ‘building scheme’ that restricted most of the lots to having one dwelling only.  A majority of the Full Court of the Supreme Court of South Australia ruled that the covenant bound the current owners (including one owner who wanted to build two premises on their lots) and that other similarly bound owners (intcluding one trying to stop that building) had standing to enforce it.
  • FRM17 v Minister for Home Affairs [2019] FCAFC 148, a test case on negligence actions relating to the medical treatment of asylum seekers on Nauru. The Full Court of the Federal Court ruled that negligence actions are not barred by a statutory provision banning that court from hearing challenges to offshore processing.
  • O’Neill v Roy [2019] NTCA 8, a criminal appeal concerning breach of an apprehended violence order. After a court ordered the defendant to stay away from her partner while intoxicated, the police looked through her partner’s screen door and saw the couple inside with the defendant lying on the ground, seemingly drunk. A magistrate excluded the evidence as illegally obtained, but the Northern Territory Court of Appeal restored it, ruling that the police had an implied licence to knock at the door.
  • [Applicant S270/2019] v Minister for Immigration and Border Protection v Minister for Immigration and Border Protection [2019] FCAFC 126, an immigration appeal against a decision to revoke a visa on character grounds. After a Vietnamese refugee who came to Australia in 1990 had his visa revoked following a string of convictions for offences related to his drug habit, he argued that the Minister’s refusal to cancel the revocation was unreasonable given that he was now drug-free and that he failed to consider the risks arising from being returned to Vietnam. A majority of the Full Court of the Federal Court rejected those challenges, finding that that the Minister’s view that the refugee was a danger to the community was reasonable and that he made no jurisdictional error in refusing the cancel the revocation.

Assuming these matters are heard after the twelve earlier pending matters, it seems unlikely that they will be decided until next year.