News: 12 special leave grants in the COVID quarter

While the High Court suspended its hearings of appeals and original jurisdiction matters in April and May and switched to video connection hearings in June due to COVID-19,  it has largely continued hearing special hearing matters by video link from its various registries. The result this quarter is twelve new appeals – more than average compared to recent years – being added to its pipeline, bringing the total special leave grants for the first half of the year to seventeen.

The twelve new cases the High Court will, pandemic-permitting, hear in the second half of the year are appeals from the following matters:

  • AAM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1951, on the effect of a court’s failure to provide timely written reasons. In rejecting the unrepresented visa applicant’s case, the Federal Circuit Court gave oral reasons that were translated in his presence, but did not supply written reasons until after he was required to lodge an appeal.  Despite finding that the lower court’s decision was correct, the Federal Court set it aside because of its failure to provide timely written reasons.
  • Australian Securities and Investment Commission v Westpac Securities Administration Limited [2019] FCAFC 187, concerning conversations with customers about superannuation. Westpac agents called customers offering to combine their non-bank superannuation accounts with their bank account, an offer a number of customers accepted. The full court of the Federal Court ruled that those calls had to comply with the rules on giving personal financial advice, because they concluded with customers making wholly personal financial decisions.
  • Bant & Clayton (No. 2) [2019] FamCAFC 200, concerning Australian family court proceedings after an overseas divorce. When a couple who lived and had property in both Australia and Dubai divorced, a Dubai court ruled that the party who left the marriage had lost her rights to a divorce dowry and alimony. The full court of the Family Court held that the Dubai ruling precluded new proceedings in Australia for a property settlement and spousal maintenance.
  • Bell v Tasmania [2019] TASCCA 19, on an accused’s mistaken belief about which crime he committed. An accused admitted to administering drugs to a 15-year-old, but said that he thought that she was 20. Tasmania’s Court of Criminal Appeal ruled that  a reasonable mistake about age was no defence to the offence of supplying a drug to a child, because supplying a drug to an adult was also a crime.
  • DVO16 v Minister for Immigration & Border Protection [2019] FCAFC 157, on which errors permit review of an immigration decision. Following an interview that was poorly translated between Arabic and English, a ‘fast-track’ review of the accused’s visa rejection was dismissed. The full court of the Federal Court rued that, while the translation errors would ordinarily have justified judicial review, they did not overcome a statutory bar on such review in the case of some immigration decisions.
  • Makasa v Minister for Immigration and Border Protection [2020] FCAFC 22, on whether a Minister can reverse an earlier visa decision. Years after a man who was convicted of a sexual offence successfully overturned the Minister’s decision to cancel his visa in the Administrative Appeals Tribunal, the Minister again cancelled his visa. A five-judge bench of the full court of the Federal Court held that the Tribunal decision meant that the subsequent cancellation was invalid.
  • Minister for Immigration and Border Protection v AUS17 [2019] FCA 1686, on when immigration authorities must consider new evidence. After his application for a protection visa was refused, the applicant supplied a letter from a politician with further information about the conditions in his home country. A Federal Court judge held that a statutory provision limiting the receipt of new information to exceptional circumstances meant that the letter did not need to be considered in a further review.
  • Minister for Home Affairs v DUA16 [2019] FCAFC 221, on when immigration decisions are negated by bad representation. When rejecting a review of the applicants’ visa rejection, the reviewer noted that the applicants’ lawyer had seemingly placed other applicants’ details in their application. The full court of the Federal Court quashed the rejection because of the reviewer’s recognition that the applicants’ representative acted dishonestly.
  • Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors [2019] QCA 184, concerning a long-running dispute about approval of a coal mine expansion. After a lengthy hearing where the member accused the coal mine of contempt of court over media articles criticising the court for delay, Queensland’s land court ruled in part against the coal mine because of its potential affect on groundwater. Queensland’s Court of Appeal ruled the land court lacked jurisdiction to consider groundwater issues and that its decision was affected by apprehended bias.
  • R v GBF [2019] QCA 4, concerning jury directions when an accused doesn’t testify. At a child sexual abuse trial, the trial judge told the jury that the lack of testimony from the accused ‘may make it easier’ for the jurors to be satisfied of the complainant’s credibility or reliability. The appeals court held that the direction should not have been given but that other general directions ensured that the jury respected the accused’s rights to be presumed innocent and to silence.
  • R v Peniamina [2019] QCA 273, concerning homicides committed as a relationship ends. An accused claimed that he killed his partner after losing control after she cut his hand with a knife during a confrontation over her suspected infidelity. The Queensland Court of Appeal ruled that the defence of provocation was excluded by a statutory provision that barred the defence for acts the deceased did to end or change her relationship with the accused.
  • Wigmans v AMP Ltd [2019] NSWCA 243, concerning multiple overlapping class actions. In the aftermath of the banking royal commission, five class actions were commenced on behalf of AMP shareholders. A five-judge bench of the NSW Court of Appeal upheld a judge’s decision to stay all but one, rejecting an argument from the first-filed plaintiff that its action should have been preferred unless ‘clearly inappropriate’.
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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: 12 special leave grants in the COVID quarter

  1. Am I back in a law exams? Looking forward to the answers to these tricky questions. But a bit much setting 12 posers and not even open book!

  2. Pingback: News: 12 special leave grants in the COVID quarter – Jeremy Gans – on June 15, 2020 at 1:43 am – Law Update

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