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HIGH COURT OF AUSTRALIA Public Information Officer 20 July 2006 MATTHEW DAVID BOUNDS v THE QUEEN A man convicted of offences related to downloading child pornography and obscene material at a university computer laboratory had suffered no substantial miscarriage of justice by one of the charges mistakenly being put to a jury trial, the High Court of Australia held today. Mr Bounds was charged with possessing child pornography and possessing indecent or obscene articles, both in the form of computer data, on 28 July 2001, at Esperance in Western Australia. Mr Bounds was a student at Curtin University which operated a computer laboratory at Esperance Community College. Curtin University students could access the laboratory after hours by using a swipe card and a personal identification number. While checking the files of students storing large amounts of data, the university’s system administrator found 105 child pornography images and 11 other indecent or obscene images on Mr Bounds’s personal computer directory. Some were downloaded during the night. The first count alleged a crime under the WA Censorship Act and so was an indictable offence. The second count alleged a “simple offence” under the Act. On 28 May 2003 in the WA District Court, Mr Bounds was presented on an indictment for both offences. He denied storing the material and claimed someone else had learned or guessed his password. Mr Bounds said a chatroom acquaintance in Canada had sent him material which he had not looked at and which he thought was pictures of the band Metallica which they had been discussing. He was found guilty and given a suspended sentence of 24 months’ jail on each count. Mr Bounds appealed to the WA Court of Criminal Appeal on various grounds, including that the conviction and sentence on count 2 should be quashed because the offence should not have been tried on indictment. He alleged that the jury’s verdict on count 1 was unsafe and unsatisfactory as evidence concerning count 2 was wrongly put before the jury. The CCA unanimously quashed the conviction on count 2 as the offence was not triable on indictment, but, by majority, it held that admission of evidence on count 2 had caused no substantial miscarriage of justice in relation to count 1. Mr Bounds appealed to the High Court, contending that the jury had before it evidence related to count 2 which, but for both counts being on the indictment, would not have been admissible in a trial on count 1. The Court, by a 4-1 majority, dismissed the appeal. It held that the case against Mr Bounds was overwhelming. No other person was identified who could have stored the images in his personal directory. Mr Bounds accepted he was in the computer laboratory, often alone and out of hours, when they were downloaded. The Court held there was no substantial miscarriage of justice. |
HIGH COURT OF AUSTRALIA 17 November 2004 PETER TAO ZHU v THE TREASURER OF THE STATE OF NEW SOUTH WALES The High Court of Australia today allowed an appeal from a man who, it held, was legitimately selling Sydney Olympic Club memberships in China until the Sydney Organising Committee for the Olympic Games (SOCOG) stepped in to stop him and a SOCOG officer raised the matter with the police, who arrested him. Mr Zhu entered into an agreement in March 1999 with TOC Management Services authorising him to sell memberships in the Olympic Club. Benefits of club membership included tickets or the chance to obtain tickets to Games and related events. Two club committee members were appointed by SOCOG, including its commercial director Paul Reading. A licence agreement between SOCOG and TOC recognised TOC’s right to use intellectual property, namely Games names and logos, and permitted TOC to licence others to use them. Pursuant to the agency agreement, TOC provided Mr Zhu with letters of authority, along with Club letterhead, satchels and other merchandising material. He was obliged to sell 2,000 memberships, later increased to 10,000, and he paid a total of $260,000 for the agency rights. As it eventuated, this money was almost TOC’s only income. SOCOG took over the club in August 1999. Mr Reading ordered TOC managing director Keith Wyness to terminate the agency agreement with Mr Zhu. Mr Wyness incorrectly told Mr Zhu he had committed various breaches and purported to terminate the agreement. Police arrested him as he flew into Sydney from China in December 1999. SOCOG officers had failed to make a full disclosure of the relevant facts to them. Mr Zhu was charged with obtaining money by deception and attempting to obtain money by deception but the charges were later dropped. Mr Zhu commenced proceedings against SOCOG, TOC and Mr Wyness. He settled with Mr Wyness and action against TOC was stayed when a liquidator was appointed, but he proceeded with action against SOCOG for interference with contract. The New South Wales Supreme Court awarded Mr Zhu $4,234,319, including $95,000 in aggravated damages for injured feelings due to the arrest and $200,000 in exemplary damages for SOCOG’s behaviour which Justice Patricia Bergin labelled high- handed, disgraceful and reprehensible. She found that TOC’s termination of the agency agreement was not valid, that SOCOG had interfered with the contract in a number of ways, and that any breaches by Mr Zhu did not justify termination. The NSW Court of Appeal allowed an appeal, finding SOCOG had established the defence of justification because Mr Zhu had made unauthorised use of intellectual property. By this time, the Treasurer had been substituted for SOCOG which had been wound up. Mr Zhu appealed to the High Court. The Court unanimously allowed the appeal and held that SOCOG could not make out a defence of justification as the plaintiff’s conduct in Australia was lawful. Mr Zhu did not require SOCOG’s prior written consent to use its intellectual property due to the terms of SOCOG’s licence agreement with TOC and of Mr Zhu’s agency agreement with TOC. The Court held that, ultimately, the only breach made out was that Mr Zhu had obtained only oral, not written, consent to use Olympic words and symbols in China but that did not justify SOCOG’s actions. SOCOG was highly unlikely to have been able to obtain an injunction or other relief against Mr Zhu. It never sought to raise its concerns with him or to negotiate with him or to consult Chinese authorities. |
HIGH COURT OF AUSTRALIA Public Information Officer 13 December 2006 JAMES HOUGHTON AND JAMES STUDENT v SIMON ARMS Two website designers who misled an internet wine business about the operation of a bank’s financial transactions facility were liable for misleading and deceptive conduct under the Victorian Fair Trading Act even though they were employees, the High Court of Australia held today. Mr Arms set up an internet business, Australian Cellar Door, marketing wines from small wineries. Direct cellar door sales would attract low sales tax and avoid a 30 per cent margin charged by retail agents or distributors. He engaged WSA Online Limited to set up and run his website. Mr Houghton and Mr Student were WSA employees. In 2000, Mr Houghton recommended to Mr Arms a financial transactions product called ANZ e-Gate. It would enable customers to pay by credit card with funds clearing directly into the account of the winery, in return for payment by the winery of a small transaction fee. Mr Arms was told that wineries only needed to fill in a form and pay a small set-up fee. However the ANZ Bank told WSA it should obtain an e-Gate licence from the bank and sub-license Australian Cellar Door. The bank said each winery would need an ANZ credit card merchant facility and would be subject to an approval process. Several months later, Mr Student told Mr Arms that there had been a mistake about the operation of ANZ e- Gate and that Australian Cellar Door would have to arrange for each winery to become a merchant accredited by the ANZ Bank and to obtain similar accreditation for American Express and Diners Club. Each winery would need to provide the three entities with profit-and-loss statements and a business plan. Australian Cellar Door had already signed up 30 wineries and its website was to launch in five days, leaving no time to arrange for the wineries to comply with the conditions to become individual merchants. To preserve goodwill, Mr Arms converted Australian Cellar Door into a retailer with a mark-up of five per cent which he would have charged under his original system. Sales tax now had to be paid at the higher rate. Mr Arms operated at a loss for 12 months until June 2001. He then adopted a different business structure and became profitable. If he had known the true position he could have changed the website to a profitable trading method by November 2000 and would not have lost $58,331 from the seven-month setback. In the Federal Court of Australia, Mr Arms sued WSA, Mr Houghton and Mr Student to recover this amount. The Court ordered WSA (now subject to a deed of company arrangement) to pay Mr Arms $58,331, but dismissed claims against Mr Houghton and Mr Student. It held that neither Mr Houghton nor Mr Student could be said to be engaged in trade or commerce. The Full Court of the Federal Court allowed an appeal by Mr Arms against the dismissal of his claims against the two employees, on the basis that in circumstances such as those of the present case an employee could be liable. The orders of the primary judge were altered to so as to enter judgment for $58,331 against WSA, Mr Houghton and Mr Student. The employees appealed to the High Court. The Court unanimously dismissed the appeal. It held that while Mr Houghton and Mr Student were not themselves business proprietors, they nevertheless engaged in conduct in the course of trade or commerce and were thus within the ambit of the Fair Trading Act. They had contravened section 9 of the Act, which provides that a person must not in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive. The Court held that whether or not the acts of the employees were also the acts of WSA, they were the conduct of persons which contravened the prohibition in section 9. |
HIGH COURT OF AUSTRALIA 8 May 2019 PARKES SHIRE COUNCIL v SOUTH WEST HELICOPTERS PTY LIMITED [2019] HCA 14 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The issue in the appeal was whether a claim under the general law of tort for damages for negligently inflicted psychiatric harm consequent upon the death of a passenger during air carriage to which Pt IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Act") applies was precluded by the Act. Section 28 of the Act relevantly provides that, where Pt IV of the Act applies to the carriage of a passenger, the carrier is "liable for damage sustained by reason of the death of the passenger … resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking". Section 35(2) provides that that liability is "in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger". Section 34 imposes a time limit on the availability of the right of action created by s 28. The appellant, a regional local authority, engaged the respondent to assist it to carry out by helicopter a low level aerial noxious weed survey. On 2 February 2006, a helicopter operated for that purpose by the respondent was carrying two of the appellant's officers, Mr Buerckner and Mr Stephenson. The helicopter struck power lines and crashed, killing all three occupants. Amongst a number of other claims made as a result of the accident, Mr Stephenson's widow, daughter and son ("the Stephensons") brought claims against both the appellant and respondent for damages for negligently inflicted psychiatric harm resulting from the death of Mr Stephenson. The claims brought by the Stephensons were commenced outside the time fixed by s 34 of the Act. The Supreme Court of New South Wales held that the Stephensons' claims did not fall within the ambit of s 35(2), with the result that they were not extinguished by the operation of s 34. Each of the Stephensons was successful in his or her claim against the appellant. The appellant, in turn, obtained judgment for contribution against the respondent as co-tortfeasor under the Act. The respondent appealed to the Court of Appeal, which allowed the appeal by majority. The majority held that the Stephensons' claims were excluded by s 35(2), and should have been dismissed. By grant of special leave, the appellant appealed to the High Court. The Court unanimously held that the Stephensons were entitled to claim against the respondent for damages for loss suffered by them by reason of Mr Stephenson's death pursuant to s 28 of the Act. The Court held that s 35(2) substituted that entitlement for any claim that might otherwise have been brought under the general law of tort. As the Stephensons' entitlement to claim under s 28 was extinguished by s 34 before their proceedings were commenced, the Court of Appeal rightly held that their claims should have been dismissed. |
HIGH COURT OF AUSTRALIA 18 June, 2003 Public Information Officer SALLY INCH JOSLYN v ALLAN TROY BERRYMAN AND WENTWORTH SHIRE COUNCIL WENTWORTH SHIRE COUNCIL v ALLAN TROY BERRYMAN AND SALLY INCH Mr Berryman ought to have been aware that Ms Joslyn was intoxicated when she took the wheel of his utility. Because that was so he was guilty of contributory negligence which contributed to the serious injuries he suffered when the utility overturned, the High Court of Australia held today. Both had been at a 21st birthday party on a property near Dareton, in south-western New South Wales, on October 26. 1996. Both had drunk heavily on the previous night in Wentworth and also drank heavily at the party. Mr Berryman went to sleep in his utility about 4am and Ms Joslyn, who was seen staggering about at 4.30am, went to sleep on the ground beside the utility. After a short sleep, they drove into Mildura for breakfast at a McDonald’s restaurant. On their return journey to the property, Mr Berryman was nodding off and Ms Joslyn took over driving, despite having lost her licence for drink-driving and not having driven for three years. Ms Joslyn lost control while driving around a sharp corner and the utility overturned. The utility had a propensity to roll and its speedometer was broken. Mr Berryman, 22 at the time, was seriously injured. Blood samples taken later indicated that at 8.45am when the accident occurred Mr Berryman had had a blood-alcohol concentration of about 0.19 per cent and Ms Joslyn about 0.138 per cent. Mr Berryman sued Ms Joslyn for negligent driving and Wentworth Shire Council for not providing a warning sign before the bend. The NSW District Court found both Ms Joslyn and the shire council guilty of negligence, holding Ms Joslyn 90 per cent responsible and the council 10 per cent responsible for the injuries suffered by Mr Berryman. The Court ordered the council to pay $750,000 and Ms Joslyn $1,995,086.36 but reduced Ms Joslyn’s damages by 25 per cent, to $1,496,314.77, owing to Mr Berryman’s contributory negligence in allowing her to drive when he ought to have been aware she was unfit to drive. Mr Berryman appealed to the NSW Court of Appeal against the contributory negligence finding. Ms Joslyn and the shire council cross-appealed, each alleging higher levels of contributory negligence. The Court upheld Mr Berryman’s appeal on the ground that Ms Joslyn had not shown signs of intoxication when she took over the driving, restoring the damages to $1,995,086.36. It dismissed the shire council’s appeal against Ms Joslyn and rejected the council’s separate appeal based on joint illegal activity by the pair. Ms Joslyn and the shire council appealed to the High Court, which held that the Court of Appeal erred in confining factors relevant to contributory negligence to those observed by Mr Berryman when he became a passenger. The High Court held that, under section 74 of the NSW Motor Accidents Act, which was not considered by the lower courts, he would be contributorily negligent if he was aware or ought to have been aware that Ms Joslyn’s driving was impaired. The Court unanimously allowed the appeals and remitted each matter to the Court of Appeal. |
HIGH COURT OF AUSTRALIA 9 September 2020 APPLICANT S270/2019 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2020] HCA 32 Today the High Court dismissed an appeal from a judgment of the Full Court of the Federal Court of Australia concerning the validity of the decision of the Minister for Immigration and Border Protection under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the appellant's Class BB Subclass 155 Five Year Resident Return visa, which is not a protection visa. Section 501(3A) of the Migration Act relevantly provides that the Minister must cancel a visa if satisfied that the person does not pass the character test because they have a substantial criminal record and the person is serving a sentence of imprisonment on a full-time basis. Section 501CA(4) provides that the Minister may revoke the decision to cancel a visa if two conditions are met. The first is that the person makes representations in accordance with the invitation from the Minister (s 501CA(4)(a)). The second is that the Minister is satisfied that either the person passes the character test or there is another reason why the decision should be revoked (s 501CA(4)(b)). The appellant was born in Vietnam and arrived in Australia on a humanitarian visa in 1990. The visa did not have as a criterion that the appellant was entitled to protection under the Convention relating to the Status of Refugees as modified by the Protocol relating to the Status of Refugees. In 1994, the appellant was granted a Class BB Subclass 155 Five Year Resident Return visa. That visa was cancelled pursuant to s 501(3A). The appellant was sent a notice of the decision, a copy of the relevant ministerial direction and other enclosures including a revocation request form. The appellant filled out the revocation request form and sent it to the Department of Immigration and Border Protection. Subsequently, in a letter from the Department, the appellant was provided with particulars of information including an "International obligations and humanitarian concerns assessment" ("the Assessment") and invited to comment. The Assessment concluded that no non-refoulement obligations were owed with respect to the appellant. The appellant responded to the request for comment but not in relation to the Assessment. The Minister declined to revoke the cancellation. The appellant's application for judicial review and appeal to the Full Court were unsuccessful. The appellant was granted special leave to appeal to the High Court on the ground that, when exercising the power under s 501CA(4), the Minister was obliged to, and failed to, consider whether non-refoulement obligations were owed to the appellant. A majority of the High Court held that the Minister was not required to consider whether Australia owed non-refoulement obligations to the appellant as "another reason" under s 501CA(4)(b)(ii). There was nothing in any of the material submitted by the appellant in support of his revocation request that indicated or suggested that he now held a subjective or well-founded fear of persecution in Vietnam. |
HIGH COURT OF AUSTRALIA 1 May 2013 COMMISSIONER OF TAXATION v UNIT TREND SERVICES PTY LTD [2013] HCA 16 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia concerning the interpretation of s 165-5(1)(b) of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("the GST Act"). Unit Trend Services Pty Ltd ("Unit Trend") is the representative member of a GST group of companies which, at the relevant time, included Simnat Pty Ltd ("Simnat"), Blesford Pty Ltd ("Blesford") and Mooreville Investments Pty Ltd ("Mooreville"). Simnat was the developer of residential building unit projects. When construction of the projects was at an advanced stage, Simnat sold the projects for their then value as going concerns to Blesford and Mooreville, which completed the projects and sold the completed units. The Commissioner of Taxation ("the Commissioner") issued a declaration to Unit Trend under the anti-avoidance provisions in Div 165 of the GST Act negating a total GST benefit in excess of $21 million. This declaration was contested by Unit Trend in the Administrative Appeals Tribunal ("the AAT"), which found in favour of the Commissioner. The AAT found that the companies were engaged in a "scheme" under s 165-10(2) of the GST Act. The GST benefit got from the scheme, which Div 165 was being invoked to negate, was the benefit obtained as a result of intermediate sales by Simnat to Blesford and Mooreville of a going concern. The GST benefit reflected the amount agreed to be paid to Simnat by Blesford and Mooreville as the consideration for the intermediate sales, which brought about an uplift in the intermediate cost base of the units supplied by them to buyers of the units. As a result, the amount of GST payable by Unit Trend was less than it would have been had the scheme not existed. The AAT's decision was subsequently overruled by the Full Court in favour of Unit Trend. The Full Court held that the GST benefit obtained by Unit Trend was attributable to the making of a choice, election, application or agreement expressly provided for by the GST Act and, therefore, Div 165 did not apply. On appeal by special leave to the High Court, the issue before the Court was whether the GST benefit obtained by Unit Trend was not attributable to the making of a choice, election, application or agreement that was expressly provided for by the GST Act. The High Court unanimously held that the phrase "not attributable to" in s 165-5(1)(b) is concerned with whether the GST benefit in question is not one to which the taxpayer was entitled by exercise of a statutory choice. Reference to the undisputed facts showed that the GST benefit in question was not attributable to the making of a statutory choice by Unit Trend provided for by the GST Act. The GST Benefit was, therefore, negated by the anti-avoidance provisions in Div 165. |
HIGH COURT OF AUSTRALIA 12 November, 2003 KEVIN WAYNE GILLARD v THE QUEEN The High Court of Australia today ordered a new trial for a man deprived of the possibility of a verdict of manslaughter in a South Australian murder trial. Mr Gillard and Gerald David Preston were convicted of the murder in 1996 of two men and attempted murder of a third. A man named Tognolini and/or the Hell’s Angels allegedly wanted one of the murdered men, Leslie Knowles, killed in relation to his involvement in police investigations into drug dealing. Mr Preston allegedly agreed to perform the contract killing for Mr Gillard stole a van for Mr Preston and drove him to Mr Knowles’s car repair workshop. Mr Preston walked into the workshop and shot dead Mr Knowles and an employee and injured a mechanic. Mr Gillard then drove Mr Preston away and later destroyed the van. Mr Gillard denied knowing Mr Preston was armed. He also asserted that he believed they went to the workshop to rob Mr Knowles. The SA Supreme Court trial judge directed the jury that, for a murder conviction, the prosecution must prove Mr Gillard and Mr Preston shared a common purpose to kill Mr Knowles and had to exclude the possibility that his purpose was to participate in a robbery. The prosecution argued at trial and before the Full Court of the Supreme Court that, even on the robbery hypothesis, the jury should have been told that the facts could be consistent with murder, and that they could convict Mr Gillard of manslaughter. The Full Court unanimously upheld his conviction. The High Court held that on the robbery hypothesis Mr Gillard was party to a common design involving the hostile use of a loaded gun. If he foresaw as a possible incident of carrying out the common design that Mr Preston might shoot Mr Knowles with intent to kill or cause grievous bodily harm then he was guilty of murder. If he foresaw that Mr Knowles might shoot Mr Knowles during a robbery, but without foreseeing such intent, then he was guilty of manslaughter. The Court unanimously allowed the appeal and held that the trial judge’s refusal to leave a case of manslaughter to the jury was an error of law. The Court also held that it was not possible to say that despite this error there was no miscarriage of justice. It was not inevitable that a jury, properly instructed and given manslaughter as an alternative to consider, would find that Mr Gillard foresaw that Mr Preston intended to kill or cause grievous bodily harm. The Court ordered that his convictions be quashed and that there be a new trial. |
HIGH COURT OF AUSTRALIA 8 February 2017 CLIVE FREDERICK PALMER v MARCUS WILLIAM AYRES, STEPHEN JAMES PARBERY AND MICHAEL ANDREW OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ) & ORS; IAN MAURICE FERGUSON v MARCUS WILLIAM AYRES, STEPHEN JAMES PARBERY AND MICHAEL ANDREW OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ) [2017] HCA 5 Today the High Court published its reasons for orders made after a hearing on 10 November 2016, which dismissed writs of summons seeking, amongst other relief, a declaration that s 596A of the Corporations Act 2001 (Cth) is invalid as contrary to Ch III of the Constitution. The High Court held that s 596A of the Corporations Act, which provides for the mandatory examination of certain persons in relation to a corporation's examinable affairs, does not confer non-judicial power on federal courts or on courts exercising federal jurisdiction and so is not invalid as contrary to Ch III of the Constitution. The plaintiff in each proceeding – Mr Palmer and Mr Ferguson – was a former director of Queensland Nickel Pty Ltd ("QN"). QN was placed under administration and the creditors of QN subsequently resolved that QN be wound up in insolvency. Additional liquidators of QN were subsequently appointed by an order of the Federal Court of Australia ("the Special Purpose Liquidators"). The Special Purpose Liquidators applied to the Federal Court for, and obtained, an order for the issue of a summons under s 596A of the Corporations Act requiring, among others, Mr Palmer and Mr Ferguson to attend for examination about QN's examinable affairs. Mr Palmer and Mr Ferguson both attended the Federal Court and were each examined. Mr Palmer and Mr Ferguson then each filed a writ of summons in the High Court. In each proceeding, the following question was reserved for the consideration of a Full Court – is s 596A of the Corporations Act invalid as contrary to Ch III of the Constitution in that it confers non-judicial power on federal courts and on courts exercising federal jurisdiction? The High Court unanimously held that an application for the issue of a summons for mandatory examination under s 596A is a "matter" in the constitutional sense and its determination engages the judicial power of the Commonwealth. Therefore, s 596A does not confer non-judicial power on federal courts or on courts exercising federal jurisdiction and so is not invalid as contrary to Ch III of the Constitution. |
HIGH COURT OF AUSTRALIA 5 October 2016 PRINCE ALFRED COLLEGE INCORPORATED v ADC [2016] HCA 37 Today the High Court unanimously allowed an appeal from the Full Court of the Supreme Court of South Australia. It held that the respondent should not have been granted an extension of time under s 48(3) of the Limitation of Actions Act 1936 (SA) ("the Limitations Act") to bring his proceeding. In 1962, the respondent was a 12 year old boarder at the Prince Alfred College ("the PAC"). He was sexually abused by Bain, a housemaster employed by the PAC. The first two instances of abuse occurred on occasions when Bain was telling a story in the respondent's dormitory after lights out. Thereafter, the respondent was molested by Bain on about 20 occasions in Bain’s room and again when they spent a night together at a house. The respondent's evidence was that prefects supervised the daily activities of the junior boys, such as study, showering and lights out, but that Bain was often present during shower time and often told stories in the dormitory after lights out. The respondent said that other housemasters did not supervise lights out or enter his dormitory. The respondent suffered symptoms of psychological injury from the early 1980s onwards. In 1997, he decided not to sue the PAC and accepted its offer to pay his medical and legal fees to date and his son’s school fees. The respondent commenced civil proceedings against Bain, and reached a settlement in 1999. The respondent's symptoms persisted and he sought further financial assistance from the PAC in 2004 and 2005, without success. In 2005, his psychologist said that he would not work full-time again. The respondent brought proceedings against the PAC in the Supreme Court of South Australia in December 2008. He alleged that the PAC was liable in damages to him for breach of a non-delegable duty of care and breach of its duty of care, and that the PAC was vicariously liable for the wrongful acts of Bain. Due to the passage of time, the respondent required an extension of time to bring proceedings. Section 48(3) of the Limitations Act permits, if certain preconditions are met, a court to extend time at its discretion if the respondent shows that it was just in all the circumstances for it to do so. This involves showing that the PAC would not be significantly prejudiced as a result of the exercise of the court’s discretion. The primary judge dismissed the respondent's case regarding liability, and refused to grant an extension of time due to the prejudice suffered by the PAC by reason of the "extraordinary" delay in commencing proceedings. Her Honour considered that the PAC was disadvantaged due to the absence or death of critical witnesses, and the loss of documentary evidence. On appeal, each member of the Full Court held that the PAC was vicariously liable and an extension of time should have been granted. By grant of special leave, the PAC appealed to the High Court. Unanimously, the Court held that the primary judge was correct not to have granted an extension of time. The respondent's decision in 1997 not to commence proceedings was significant in this regard. A majority of the High Court considered the correct approach to be taken to the question of the PAC's vicarious liability for the acts of Bain. In cases of this kind, attention must be given to any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. Relevant features in this regard include authority, power, trust, control and the ability to achieve intimacy with the victim. However, the identification of the correct approach also showed that a determination could not be made as to the PAC's liability in this case, because the length of the delay and consequent deficiencies in the evidence placed the PAC in such a position that it could not properly defend the claims brought against it. That was another reason why the extension of time could not be granted and it was also the reason why the primary judge should not have proceeded to determine liability. The High Court allowed the appeal. |
HIGH COURT OF AUSTRALIA 18 March 2020 KMC v DIRECTOR OF PUBLIC PROSECUTIONS (SA) [2020] HCA 6 Today the High Court published its reasons for allowing an appeal against a sentence imposed by the District Court of South Australia. On 6 February 2020, the High Court unanimously pronounced orders allowing the appeal and remitting the matter to the sentencing judge for re-sentencing according to law. The applicant was found guilty by a jury in the District Court of South Australia of one count of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) ("the CLCA"), as it then stood. The jury was discharged without being asked any questions as to the basis of its verdict. In August 2017, the applicant was sentenced to imprisonment for 10 years and three days, with a non-parole period of five years. After the applicant was sentenced, the High Court handed down its decision in Chiro v The Queen (2017) 260 CLR 425. In that decision, which also concerned an offence committed against s 50 of the CLCA, the plurality held that "the judge should request that the jury identify the underlying acts of sexual exploitation that were found to be proved unless it is otherwise apparent to the judge which acts of sexual exploitation the jury found to be proved", and where a jury is not questioned as to the basis of its verdict, "the offender will have to be sentenced on the basis most favourable to the offender". Subsequently, the South Australian Parliament passed the Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2017 (SA) ("the Amending Act"), which commenced operation on 24 October 2017. Section 9(1) provides that "[a] sentence imposed on a person, before the commencement of this section, in respect of an offence against section 50 of the [CLCA] ... is taken to be, and always to have been, not affected by error or otherwise manifestly excessive merely because", relevantly, "the sentencing court sentenced the person consistently with the verdict of the trier of fact but having regard to the acts of sexual exploitation determined by the sentencing court to have been proved beyond a reasonable doubt". The object of s 9 was to overcome the effect of Chiro. In 2019, the applicant applied for an extension of time, and permission, to appeal against his sentence on the grounds that the sentence and the non-parole period were manifestly excessive and that, contrary to Chiro, the sentencing judge had not sentenced the applicant on the basis most favourable to him consistent with the verdict of the jury. The respondent sought to uphold the sentence on the basis that it was valid by reason of s 9(1) of the Amending Act. The whole of the cause was removed into the High Court from the Full Court of the Supreme Court of South Australia under s 40(1) of the Judiciary Act 1903 (Cth). The applicant contended that s 9(1) of the Amending Act was not engaged in this case, and if it was, that s 9(1) was constitutionally invalid. The High Court unanimously held that the applicant should be granted an extension of time for permission to appeal against the sentence and permission to appeal, the appeal should be allowed, the sentence imposed by the sentencing judge be set aside and the matter be remitted to the sentencing judge for re-sentencing. The High Court held that the judge's sentencing remarks were not sufficient to engage s 9(1), because the sentencing judge did not make findings as to what acts of sexual exploitation he found to have been proved beyond reasonable doubt. Section 9(1) thus could not validate the applicant's sentence, which was contrary to the law as stated by Chiro. Questions as to the constitutional validity of s 9(1) therefore did not arise. |
HIGH COURT OF AUSTRALIA 8 November 2007 Public Information Officer RAYMOND JAMES WASHER v THE STATE OF WESTERN AUSTRALIA Evidence of an acquittal on one drug conspiracy charge was rightly excluded from a later trial on a different charge, the High Court of Australia held today. Mr Washer was convicted by the Western Australian District Court in 2005 of conspiring with John Di Lena and Andrea Scott between 18 May and 2 June 2000 to possess a prohibited drug, methylamphetamine, with intent to sell or supply it, and sentenced to seven years’ jail. The alleged conspiracy involved the proposed importation to WA from Queensland of two kilograms of the drug. Mr Washer contributed $55,000 to the deal. He and Mr Di Lena, allegedly the organiser, flew to Brisbane at different times to organise the shipment. An associate, Robert Fisher, was sent to Brisbane to collect the drug. Rather than flying back, Mr Fisher wanted to return by hire car with his girlfriend, Pauline Lennon. Ms Scott arranged to have the car hire charged to her credit card. In northern New South Wales, Mr Fisher and Ms Lennon argued, and she drove off in the car, with the drug concealed inside. Police apprehended Ms Lennon two days later and found the concealed methylamphetamine. Ms Lennon was arrested, Mr Fisher was arrested a few days later, and Ms Scott’s payment for the hire car led to her being arrested, along with Mr Di Lena and Mr Washer. In 2004, Mr Washer was acquitted of a separate conspiracy with Gavin Whitsed and William Bowles to sell or supply methylamphetamine. They and Mr Di Lena and Ms Scott were members of the Rebels Outlaw Motorcycle Gang. Some evidence presented at the first trial, including police surveillance of conversations between Mr Washer, Mr Whitsed and Mr Bowles, and scales and a coffee grinder with traces of the drug found in Mr Washer’s home, was also used at the second trial. During that trial, Mr Washer’s counsel, during cross-examination of a police witness, sought to adduce evidence of the earlier acquittal. Judge Henry Wisbey disallowed the line of questioning. Mr Washer appealed unsuccessfully against his conviction to the WA Court of Appeal, then appealed to the High Court. He argued that Judge Wisbey erred in not allowing evidence of the acquittal to be adduced and that once the evidence was received Judge Wisbey should have directed the jury to give Mr Washer the full benefit of his acquittal. The High Court unanimously dismissed the appeal. Four members of the Court upheld Judge Wisbey’s ruling against the earlier acquittal being allowed into evidence. One member would have allowed evidence of the acquittal but held that the proviso that there had been no substantial miscarriage of justice applied, due to overwhelming evidence against Mr Washer. The plurality held that the acquittal had to be relevant to be admitted into evidence. Relevance depended upon whether the evidence could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings. The acquittal would be relevant if it gave an appellant a right to the benefit of an assumption related to the assessment of other evidence in the case, or it had had some logical connection with the assessment of any facts in issue. The plurality held that the acquittal only established that Mr Washer was not guilty of a particular conspiracy, but did not establish that he was innocent of drug dealing or that his conversations with Mr Whitsed and Mr Bowles were not about drugs. It held that no logical connection between his acquittal and some fact in issue at the later trial was identified and the evidence was properly excluded as irrelevant. |
HIGH COURT OF AUSTRALIA 14 December 2022 REALESTATE.COM.AU PTY LTD v JAMES KELLAND HARDINGHAM; RP DATA PTY LTD v JAMES KELLAND HARDINGHAM [2022] HCA 39 Today, the High Court allowed an appeal, and allowed another appeal in part, from the Full Court of the Federal Court of Australia. The appeals concerned the scope and terms of a licence and subsequent sub-licence to use photographs and floor plans of residential properties ("works") produced by Mr Hardingham and his company Real Estate Marketing Australia Pty Ltd ("REMA"), for the marketing of real estate properties. Mr Hardingham and REMA supplied works produced by Mr Hardingham to real estate agencies for use in the marketing of properties for sale or lease by way of informal contract. One of the uses of the works by the agencies was to upload them to the platform operated by Realestate.com.au ("REA"). REA then provided the works to RP Data Limited ("RP Data"). RP Data operated a website and provided a subscription service for agencies where the works remained after the sale or lease of the property as part of the historical information about completed transactions. Mr Hardingham and REMA brought proceedings in the Federal Court claiming RP Data had infringed the copyright in a large number of works. It was common ground that RP Data would infringe the copyright in the works if it used the works without a licence referable to Mr Hardingham or REMA. As such, this proceeding was directed to the terms of the licence Mr Hardingham or REMA gave the agencies, which in turn permitted the agencies to sub-licence the use of the works to REA. Mr Hardingham and REMA accepted that a licence was granted by REMA to the agencies which permitted them to sub-licence to REA. However, they contended that the licence was subject to a limitation that once a sale or lease of the property the subject of the works was completed, the licence came to an end. A licence in these terms would not have permitted the agencies to accept the terms of the licence required by REA, which included the ability to sub-licence to other persons such as RP Data. The primary judge found RP Data did not infringe the copyright in the works as it was to be inferred from the conduct of the parties, or to be implied into the agreements to give business efficacy to them, that Mr Hardingham and REMA licenced the agencies to upload the works to REA's platform, and in so doing to grant a licence to REA in accordance with REA's standard terms and conditions. The majority of the Full Court allowed Mr Hardingham and REMA's appeal, concluding that the licence was limited to use for the sale or lease of the relevant property. The High Court held that RP Data did not infringe copyright in the works as a reasonable person in the position of the parties would have known that one of the purposes of REMA providing the works to the agencies was so that the agencies could provide them to REA, and that the agencies had no real choice other than to accept a term requiring them to provide a licence to REA to use the works indefinitely and to provide them to RP Data. |
HIGH COURT OF AUSTRALIA 3 August 2005 CHIEF EXECUTIVE OFFICER OF CUSTOMS v NAZIH EL HAJJE The High Court of Australia today unanimously allowed an appeal by Customs relating to the way a prosecution case for excise evasion was handled by the Victorian Court of Appeal. Mr El Hajje was driving a rented truck in Broadford, Victoria, in February 2000 when he was intercepted by police. He was allegedly carrying 691.48kg of cut tobacco which attracted excise duty of $165,567.97 ($239.44 per kilo). Section 117 of the Excise Act provided that no-one shall, without authority, have in their possession, custody or control any manufactured or partly manufactured excisable goods upon which excise has not been paid. Customs prosecuted Mr El Hajje for unlawful possession of excisable goods upon which excise duty had not been paid. Customs’ statement of claim (later amended) contained a number of averments, or allegations, detailing Mr El Hajje’s lack of any licence under the Excise Act, his apprehension with the cut tobacco on which no duty has been paid, and the lack of any permission or authority to have the tobacco in his possession, custody or control. Mr El Hajje was convicted and fined $331,135 but successfully appealed to the Victorian Court of Appeal on the ground that the trial judge should not have found that cut tobacco is manufactured goods. The Court of Appeal held that an ultimate fact in issue cannot be averred, based on the proposition that tobacco leaf might be cut for purposes other than for manufacture into a product suitable for consumption. It held that with the facts constituting manufacture not being averred, and no facts other than the ultimate fact in issue being averred, the ultimate fact in issue was not properly the subject of an averment. Customs appealed to the High Court. The Court allowed the appeal. It held that the averment provisions of the Excise Act do not distinguish between the ultimate fact in issue and other facts. Averments are of material facts alleged in the pleading, not of evidence proving those material facts. References to the ultimate fact in issue in excise prosecutions may suggest there will always be a single determinative issue of fact, which is seldom so. The Court held that, in this case, demonstrating a contravention of section 117 required proof that: Mr El Hajje had certain goods in his possession, custody or control; he was not a manufacturer; he had no authority to have the goods in his possession, custody or control; the goods were manufactured or partly manufactured; and the goods were of a kind attracting excise. None of these facts were more significant than others. Any not admitted by Mr El Hajje could be described as an ultimate fact in issue. The Act provides that what is averred is prima facie evidence of the matter averred. It remained for the trial judge and the Court of Appeal to say whether the facts averred were established to the requisite degree of proof. However the Court of Appeal did not consider whether the necessary facts were established to the requisite degree and Mr El Hajje’s contention, that the trial judge erred in finding that the tobacco in his possession, custody or control was manufactured or partly manufactured, remained undetermined. The Court remitted the matter to the Court of Appeal for further hearing and determination. |
HIGH COURT OF AUSTRALIA Public Information Officer 12 December, 2002 GEOFFREY ROBERTS AND KENNETH CASE v RODNEY BASS The High Court of Australia has allowed appeals by Geoffrey Roberts and Kenneth Case against judgments that they were liable to pay damages for having defamed former Liberal member for the South Australian seat of Florey, Rodney “Sam” Bass. He lost his seat in the 1997 state election. Mr Roberts, representing the so-called Clean Government Coalition, produced three documents making claims critical of Mr Bass, particularly about taxpayer-funded travel. The first two documents were letterboxed during the 1997 election campaign. The third, a how-to-vote card, was handed out on election day, including by Mr Case. The three documents are set out in the judgment of Justice Callinan. The SA District Court decided Mr Roberts and Mr Case injured Mr Bass by publishing false and defamatory material. The Court held that the publications were made on occasions of qualified privilege at common law but the privilege was lost by the malice of Mr Roberts and Mr Case. On appeal, the Full Court of the SA Supreme Court upheld the finding of malice and increased the damages awarded against Mr Roberts from $60,000 to $100,000, made up of $20,000 for the first publication, $35,000 for the second and $45,000 for the third. It upheld the award of damages against Mr Case of $5,000. Mr Roberts and Mr Case appealed to the High Court. They argued that the decision of the South Australian courts was affected by legal error. That argument was upheld. The High Court, by majority, overturned the orders of the Full Court of the SA Supreme Court and allowed the appeals of both Mr Roberts and Mr Case. In Mr Roberts’s appeal, it ordered a new trial. In Mr Case’s appeal it ordered that judgment be entered in his favour. |
HIGH COURT OF AUSTRALIA 4 September 2019 BELL LAWYERS PTY LTD v JANET PENTELOW & ANOR [2019] HCA 29 As a general rule, a self-represented litigant may not obtain any recompense for the value of his or her time spent in litigation. Under an exception to the general rule, commonly referred to as "the Chorley exception", a self-represented litigant who happens to be a solicitor may recover his or her professional costs of acting in the litigation. Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The Court unanimously held that the Chorley exception should not be extended to the benefit of barristers. Further, a majority of the Court held that the Chorley exception should not be recognised as part of the common law of Australia. The appellant, an incorporated legal practice, retained the first respondent, a barrister, to appear in proceedings in the Supreme Court of New South Wales. At the conclusion of those proceedings, a dispute arose as to the payment of the first respondent's fees. The first respondent sued the appellant for her unpaid fees in the Local Court of New South Wales. She was unsuccessful in that proceeding, but she appealed successfully to the Supreme Court of New South Wales. Orders for costs were made in the first respondent's favour in relation to both the Local Court and the Supreme Court proceedings. The first respondent subsequently forwarded a memorandum of costs to the appellant pursuant to those costs orders, which included sums for costs incurred on her own behalf and the provision of legal services by her in the Local Court and Supreme Court proceedings. Although the first respondent was represented by a solicitor in the Local Court proceeding, and by solicitors and senior counsel in the Supreme Court proceeding, she had undertaken preparatory legal work and had attended court on a number of occasions. The appellant refused to pay the costs claimed for the work personally undertaken by the first respondent. A costs assessor rejected the first respondent's claim for the costs of the work she had performed and that decision was affirmed on appeal before the Review Panel and the District Court of New South Wales. The first respondent sought judicial review of the decision of the District Court in the Court of Appeal of the Supreme Court of New South Wales. The Court of Appeal, by majority, held that the first respondent was entitled to rely upon the Chorley exception notwithstanding that she was a barrister and not a solicitor. By grant of special leave, the appellant appealed to the High Court. The majority of the Court held that the Chorley exception should not be recognised as part of the common law of Australia because it is an anomaly that represents an affront to the fundamental value of equality of all persons before the law and cannot be justified by the considerations of policy said to support it. In addition, the anomalous nature of the Chorley exception is inconsistent with the statutory definition of "costs" in s 3(1) of the Civil Procedure Act 2005 (NSW). |
HIGH COURT OF AUSTRALIA 29 May 2013 PLAINTIFF M79/2012 v MINISTER FOR IMMIGRATION AND CITIZENSHIP [2013] HCA 24 Today a majority of the High Court held that the decision of the Minister for Immigration and Citizenship ("the Minister") to grant the plaintiff a temporary safe haven visa was valid and that the plaintiff's application for a protection visa was not valid. The plaintiff arrived at Christmas Island in February 2010 without a visa to enter or remain in Australia, and was placed in immigration detention. Because Christmas Island is an excised offshore place under the Migration Act 1958 (Cth) ("the Act"), the plaintiff was prevented from making a valid application for a protection visa by s 46A(1) of the Act. The Minister has a power under s 195A of the Act to grant a visa of a particular class to a person in immigration detention if the Minister thinks that it is in the public interest to do so, without regard to any criteria for that visa contained in the Migration Regulations 1994 (Cth) and certain specified provisions of the Act. In the exercise of that power, the Minister granted each of the plaintiff and 2,382 other people in like circumstances two visas: a temporary safe haven visa, permitting a stay of seven days, and a bridging visa, permitting a stay of between three and 12 months (six months in the plaintiff's case). On the plaintiff's release from detention, s 46A(1) of the Act no longer applied to prevent the making of a valid protection visa application. However, the grant of a temporary safe haven visa engaged a similar statutory bar, imposed by s 91K of the Act. The Minister stated that, had it not been possible to grant the temporary safe haven visa simultaneously with the grant of the bridging visa, the Minister would not have exercised his power to grant the bridging visa. This was because, the plaintiff having been released from immigration detention, the grant of the bridging visa alone would have enabled the plaintiff to lodge a valid application for a protection visa in circumstances where the protection claim was already being dealt with under existing alternative processes. The plaintiff applied for a protection visa. The Minister treated that application as invalid. The plaintiff applied to the High Court for an order to quash the decision of the Minister to issue the temporary safe haven visa and an order requiring the Minister to consider the plaintiff's application for a protection visa according to law. The plaintiff submitted that the decision to grant him the temporary safe haven visa was invalid, because s 195A did not authorise the grant of a temporary safe haven visa except to afford temporary safe haven, and because the decision was made for the improper purpose of preventing the plaintiff from making other visa applications. The High Court rejected those arguments. A majority of the Court held that it was open to the Minister to grant a temporary safe haven visa by reference to its legal characteristics and consequences, unconstrained by the purpose for which that class of visa was created under the Act. The purpose for which the Minister granted the visa was not beyond the power conferred by s 195A(2) of the Act. Accordingly, the decision to grant the temporary safe haven visa was valid and the plaintiff's application for a protection visa was invalid. |
HIGH COURT OF AUSTRALIA 17 June 2015 MINISTER FOR IMMIGRATION AND BORDER PROTECTION v WZAPN & ANOR WZARV v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2015] HCA 22 Today the High Court unanimously allowed an appeal from the Federal Court of Australia in Minister for Immigration and Border Protection v WZAPN and unanimously dismissed an appeal from the Federal Court in WZARV v Minister for Immigration and Border Protection. The High Court held that the likelihood of a period of temporary detention of a person for a reason mentioned in the Refugees Convention is not, of itself and without more, a threat to liberty within the meaning of s 91R(2)(a) of the Migration Act 1958 (Cth) ("the Act"). WZAPN and WZARV both claimed refugee status upon arrival in Australia. WZAPN is a stateless Faili Kurd whose former place of habitual residence is Iran. In 2010, he was denied refugee status by a refugee status assessment ("RSA") officer. An Independent Merits Reviewer ("IMR") reviewed the decision of the RSA officer and concluded, among other things, that the real chance of short periods of detention upon WZAPN's return to Iran did not constitute serious harm for the purposes of the Act. The Federal Magistrates Court of Australia (as it then was) dismissed WZAPN's application for judicial review of the IMR's decision. WZAPN's appeal to the Federal Court was allowed on the basis that the threat of a period of detention constitutes serious harm whatever the severity of the consequences for liberty. The Federal Court also held that the IMR's decision was vitiated by a want of procedural fairness. The Minister was granted special leave to appeal to this Court from the decision of the Federal Court. WZARV is a Sri Lankan citizen of Tamil ethnicity, who in 2011 was denied refugee status by an RSA officer. With respect to the possible detention of WZARV upon return to Sri Lanka, the IMR accepted that it was likely WZARV would be interviewed by Sri Lankan authorities upon arrival at the airport, but that it is usual for such questioning to be completed in a matter of hours. WZARV's application for judicial review to the Federal Circuit Court of Australia and appeal to the Federal Court were dismissed. By grant of special leave, WZARV appealed to the High Court on the ground that, on the construction of s 91R(2)(a) of the Act adopted by the Federal Court in the WZAPN proceedings, the IMR had erroneously concluded that WZARV did not face serious harm upon return to Sri Lanka. The High Court held that the question of whether a risk of the loss of liberty constitutes "serious harm" for the purposes of s 91R requires a qualitative evaluation of the nature and gravity of the apprehended loss of liberty. The Court also held that the IMR's decision regarding WZAPN's claims was not vitiated by a want of procedural fairness. |
HIGH COURT OF AUSTRALIA 24 August 2016 MILLER v THE QUEEN; SMITH v THE QUEEN; PRESLEY v THE DIRECTOR OF PUBLIC PROSECUTIONS [2016] HCA 30 Today the High Court allowed three appeals from a decision of the Court of Criminal Appeal of the Supreme Court of South Australia. The appellants and a man named Betts were convicted of murder following a trial in the Supreme Court of South Australia. There was evidence that the four were involved in an altercation in which Betts fatally stabbed the deceased. The liability of the appellants for the murder was left for the jury's consideration on bases which included the doctrine of extended joint criminal enterprise as enunciated in McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37: each appellant would be guilty of murder if he was a party to an agreement to commit an assault and he foresaw that in carrying out that agreement one of his co-venturers might kill or inflict really serious bodily injury intending to do so and, with that awareness, he continued to participate in the agreed criminal enterprise. Each of the appellants had been drinking alcohol in the hours leading up to the fatal altercation. They appealed to the Court of Criminal Appeal contending that the verdicts were unreasonable in light of the evidence of the extent of their intoxication. The Court of Criminal Appeal dismissed this ground of appeal in each case without reviewing the sufficiency of the evidence to support the conviction. Prior to the hearing in the High Court, the Supreme Court of the United Kingdom in R v Jogee [2016] 2 WLR 681; [2016] 2 All ER 1 held that the doctrine of extended joint criminal enterprise should no longer be a basis for the imposition of criminal liability. The appellants were granted leave to argue that, consistent with Jogee, the decision of the High Court in McAuliffe should be reopened and overruled. After consideration of the history and basis of the doctrine, the majority held that the law in Australia should remain as stated in McAuliffe. The High Court held, by majority, that the appeals should be allowed in circumstances in which the Court of Criminal Appeal had failed to review the sufficiency of the evidence to sustain the appellants' convictions. The proceedings were remitted to the Court of Criminal Appeal for determination of the ground that the verdicts were unreasonable and could not be supported by the evidence. |
HIGH COURT OF AUSTRALIA 12 March 2014 STATE OF WESTERN AUSTRALIA v BROWN & ORS [2014] HCA 8 Today the High Court unanimously held that certain native title rights and interests held by the Ngarla People in respect of land in the Pilbara region of Western Australia were not extinguished by the grant of two mineral leases to some joint venturers for the mining of iron ore at Mount Goldsworthy. The Court held that the mineral leases did not grant the joint venturers a right to exclude any and everyone from access to the land the subject of the mineral leases. In 1964, the State of Western Australia made an agreement with some joint venturers about the development and exploitation of iron ore deposits at Mount Goldsworthy. Pursuant to the agreement, the State granted mineral leases for iron ore to the joint venturers. The agreement required the joint venturers to allow the State and third parties access over the land the subject of the mineral leases provided that such access did not unduly prejudice or interfere with the joint venturers' operations. In accordance with the agreement, the joint venturers developed the Mount Goldsworthy iron ore project. A mine, a town and associated works were constructed. The mine subsequently closed in 1982 and the town closed in 1992. Alexander Brown and others (on behalf of the Ngarla People) applied to the Federal Court of Australia for native title determinations in respect of land and waters in the Pilbara region of Western Australia. The claimed areas included the areas the subject of the mineral leases. The native title rights and interests claimed were the non-exclusive rights to access and camp on the land, to take certain traditional resources (excluding minerals) from the land, to engage in ritual and ceremony on the land, and to care for, maintain and protect from physical harm particular sites and areas of significance. It was agreed that, subject to the question of whether they had been extinguished, the claimed native title rights and interests existed in the land the subject of the mineral leases. The Federal Court concluded that the claimed native title rights and interests had been extinguished in the area where the mine, the town and the associated works had been constructed. On appeal, the Full Court of the Federal Court of Australia concluded that the native title rights and interests had not been extinguished on the land the subject of the mineral leases but that those rights and interests could not be exercised for so long as the joint venturers continued to hold rights under the mineral leases. By special leave, the State appealed to the High Court. The High Court held that the grant of the mineral leases did not extinguish the claimed native title rights and interests. Although the joint venturers could prevent others from using the land for mining purposes and could use any part of the land for the extraction of iron ore, the joint venturers did not have an unqualified right to exclude any and everyone from access to the land. The Court held that the joint venturers' rights under the mineral leases were not inconsistent with the claimed native title rights and interests over the land. |
HIGH COURT OF AUSTRALIA 11 July 2012 PUBLIC SERVICE ASSOCIATION OF SOUTH AUSTRALIA INCORPORATED v INDUSTRIAL RELATIONS COMMISSION OF SOUTH AUSTRALIA & ANOR [2012] HCA 25 Today the High Court granted special leave to appeal, and allowed an appeal, from a decision of the Full Court of the Supreme Court of South Australia, which had held that its supervisory jurisdiction did not extend to judicial review of determinations of the Industrial Relations Commission of South Australia ("the Commission") that the Commission lacked jurisdiction. In 2010, the applicant, Public Service Association of South Australia ("the PSA"), notified the Commission of two disputes, each of which was said to be an "industrial dispute" about an "industrial matter" as defined in s 4(1) of the Fair Work Act 1994 (SA) ("the Act"). In both disputes, the PSA requested the calling of a voluntary conference under s 200 of the Act. However, the Commission held that in each of the disputes, it had no jurisdiction to determine these matters. The PSA appealed the decision under s 207 of the Act to the Full Commission. The Full Commission dismissed both appeals. The PSA, by way of judicial review, then issued proceedings in the Supreme Court of South Australia seeking an order quashing the decision of the Full Commission. The Court granted permission to proceed, and the matter was heard by the Full Court. The Full Court dismissed the application on the ground that it lacked jurisdiction to make the orders sought. Section 206 of the Act provides: "(1) A determination of the Commission is final and may only be challenged, appealed against or reviewed as provided by this Act. (2) However, a determination of the Commission may be challenged before the Full Supreme Court on the ground of an excess or want of jurisdiction." (emphasis added) The primary submission by the PSA in the High Court sought to apply the decision in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 with the result that s 206 of the Act was invalid to the extent to which it denied the jurisdiction of the Full Court to review decisions of the Commission for jurisdictional error. The majority of the High Court held that the question of invalidity did not arise because, on its proper construction, s 206 did not deny the authority of the Supreme Court to intervene where the Commission had erred in deciding that it lacked jurisdiction. Heydon J held that s 206 did purport to do so but to that extent was invalid as the PSA contended. The result was that the High Court unanimously set aside the decision of the Full Court and remitted the PSA's application for judicial review for determination by the Full Court. |
HIGH COURT OF AUSTRALIA 5 August 2004 PACIFIC CARRIERS LIMITED v BNP PARIBAS A cargo carrier’s claim on a bank’s letters of indemnity was upheld by the High Court of Australia today. Grain trader New England Agricultural Traders Pty Ltd (NEAT) sold legumes – 10,000 tonnes each of chickpeas and dun peas – to Calcutta grain trader Royal Trading Company in 1998. While the cargo was in transit to India the world price of legumes fell and Royal delayed accepting the cargo and failed to pay the purchase price. The original bills of lading were not available to enable the cargo to be unloaded, and Pacific Carriers required bank-endorsed letters of indemnity before releasing the cargo. Two letters of indemnity, one for the dun peas and one for the chickpeas, were signed by NEAT and BNP Paribas’s documentary credits department manager Ira Dhiri who faxed them to Pacific in January and February 1999, allowing legumes to be released to Royal. Discharge of legumes occurred in stages then stopped. Pacific sustained losses and claimed against BNP. NEAT became insolvent. BNP argued that it had simply verified NEAT’s signature on the letters of indemnity and only NEAT was bound to indemnify Pacific. BNP also claimed that if the documents meant that BNP was an indemnifying party, then they were signed without its authority, and did not bind it. In the New South Wales Supreme Court, Pacific sued BNP in contract, negligence and misleading conduct contrary to section 52 of the Trade Practices Act. Justice Robert Hunter awarded damages of US$4.238 million plus interest to Pacific against BNP for negligent misrepresentation of NEAT’s financial strength rather than contract and dismissed the section 52 claim. The NSW Court of Appeal held that the letters of indemnity should be construed as showing BNP indemnifying Pacific, but held that Ms Dhiri had no authority to bind the bank to an indemnity. The Court of Appeal also rejected the negligence and section 52 claims. Pacific appealed to the High Court which unanimously held it could succeed in contract. The Court held that Ms Dhiri’s belief about what the documents were meant to convey is irrelevant. Instead, construction was determined by what a reasonable person in Pacific’s position would have understood them to mean, based on their wording and the surrounding circumstances. Nothing in the documents indicated BNP was merely authenticating NEAT’s signature and nothing in the circumstances suggested Pacific would be satisfied by such verification. Ms Dhiri had authority to sign and stamp documents verifying NEAT’s undertaking but no authority to sign letters of indemnity. Nothing put Pacific on notice or inquiry as to her lack of authority. The High Court held that Ms Dhiri did have apparent authority, Pacific reasonably relied on that authority, and BNP was bound. The Court allowed the appeal by Pacific and remitted the matter to the Court of Appeal to deal with outstanding issues including calculation of damages. |
H IG H CO U RT O F A U S T RA L IA 30 June 2020 MINISTER FOR IMMIGRATION AND BORDER PROTECTION v CED16 & ANOR [2020] HCA 24 Today the High Court unanimously allowed an appeal from a judgment of the Federal Court of Australia. The issue raised by the appeal was whether an invalid certificate purportedly issued by a delegate of the Minister for Immigration and Border Protection ("the Minister") under s 473GB of the Migration Act 1958 (Cth) was "new information" within the meaning of s 473DC(1) of the Act. Section 473GB relevantly provides that the Minister may issue a written certificate certifying that certain information given by the Secretary of the Department of Immigration and Border Protection ("the Department") to the Immigration Assessment Authority ("the Authority") as part of the "fast track review process" established by Pt 7AA of the Act should not be disclosed because it would ground a claim of public interest immunity by the Commonwealth. Section 473DC(1) relevantly defines "new information" to mean "documents or information" that "were not before the Minister when the Minister made the decision [under review]" and that "the Authority considers may be relevant". The first respondent's application for a protection visa was refused by a delegate of the Minister and this decision was referred to the Authority for review under Pt 7AA of the Act. The "review material" provided by a delegate of the Secretary of the Department to the Authority included a "Draft IMAPS Identity Assessment Form" ("the Identity Assessment Form"). A certificate was purportedly issued under s 473GB(5) ("the Certificate") certifying for the purpose of s 473GB(1)(a) that disclosure of the information contained in the Identity Assessment Form would be contrary to the public interest "because it is a Departmental working document". The Authority affirmed the delegate's decision and an application for judicial review was dismissed by the Federal Circuit Court. On appeal before a single judge exercising the appellate jurisdiction of the Federal Court, the Minister conceded that the Certificate was invalid for the reason that the characterisation of a document as a "Departmental working document" was insufficient to support a claim of public interest immunity. The Federal Court held that the Authority's decision was affected by jurisdictional error and should be set aside on the basis that the invalid certificate was "new information" within the meaning of s 473DC(1), and by having regard to this information in making its decision the Authority did not comply with the obligation in s 473DE(1) of the Act to provide particulars of new information to a referred applicant. Before the High Court, the appellant argued that the Federal Court was wrong to characterise the invalid Certificate as "new information" within the meaning of s 473DC(1) of the Act. The Court unanimously held that the term "information" in the phrase "new information" in s 473DC(1) should be interpreted to mean the communication of knowledge about some particular fact, subject or event that is of an evidentiary nature. In addition, the Court held that information will only be "relevant" for the purposes of meeting the definition of "new information" if the Authority considers that the information is capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the referred decision. The Court concluded that the Certificate was incapable of being "new information" within the meaning of s 473DC(1) as it was not a "document" nor did it contain "information" of an evidentiary nature that was capable of being considered relevant to the conduct of the review being undertaken by the Authority. |
HIGH COURT OF AUSTRALIA 9 September 2015 DUNCAN v INDEPENDENT COMMISSION AGAINST CORRUPTION [2015] HCA 32 Today the High Court unanimously dismissed an application seeking a declaration that Pt 13 of Sched 4 to the Independent Commission Against Corruption Act 1988 (NSW) ("the ICAC Act") is invalid. In July 2013, the respondent published a report containing findings that the applicant had engaged in "corrupt conduct" within the meaning of s 8(2) of the ICAC Act. The applicant commenced proceedings in the Supreme Court of New South Wales challenging the validity of those findings. His claim was dismissed by the primary judge. The applicant appealed to the Court of Appeal against that decision. On 15 April 2015, prior to the determination of the Court of Appeal proceedings, the High Court delivered its judgment in Independent Commission Against Corruption v Cunneen [2015] HCA 14, holding that "corrupt conduct" within the respondent's investigative jurisdiction under the ICAC Act does not encompass conduct which does not adversely affect the probity, even if it adversely affects the efficacy, of the exercise of the functions of a public official. It was common ground that the applicant's conduct the subject of the respondent's findings in the report did not affect the probity of the exercise of the functions of a public official. As a result, the applicant added to the grounds of his appeal the contention that the respondent lacked jurisdiction to make findings of corrupt conduct against him. On 6 May 2015, the New South Wales Parliament enacted the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW), which added Pt 13 of Sched 4 to the ICAC Act. Pt 13 purports to ensure the validity of the respondent's activities before 15 April 2015, notwithstanding the decision in Cunneen. The applicant sought a declaration from the Court of Appeal that Pt 13 is invalid. The applicant's challenge to the validity of Pt 13 was removed to the High Court. The High Court unanimously dismissed the application. The Court held that cll 34 and 35 of Pt 13 deem those acts done by the respondent before 15 April 2015 to be valid to the extent that they would have been valid if the definition of corrupt conduct in s 8(2) of the ICAC Act encompassed conduct which adversely affected the efficacy, but not the probity, of the exercise of official functions. A majority of the Court held that cll 34 and 35 of Pt 13 operate to effect an alteration in the substantive law as to what constitutes corrupt conduct, and the whole Court held that cll 34 and 35 of Pt 13 retrospectively confer jurisdiction upon the respondent. In doing so, the provisions attach new legal consequences and a new legal status to things done which otherwise would not have had such legal consequences or status. |
HIGH COURT OF AUSTRALIA 24 August 2012 JAYANT MUKUNDRAY PATEL v THE QUEEN [2012] HCA 29 Today the High Court unanimously upheld an appeal by the appellant, Jayant Mukundray Patel, against his convictions for manslaughter and unlawfully doing grievous bodily harm. The Court found that a miscarriage of justice had occurred because, on the 43rd day of a 58 day trial, the prosecution radically changed its case in a way that rendered irrelevant much of the evidence that had been admitted. The Court ordered that there be a new trial. The appellant was convicted in the Supreme Court of Queensland of three counts of manslaughter and one count of unlawfully doing grievous bodily harm contrary to ss 303 and 320 of the Criminal Code (Q). The charges arose out of surgery conducted by the appellant on four patients while he was employed as a surgeon at the Bundaberg Base Hospital. The prosecution alleged that the standard of care provided by the appellant to the patients was so low as to breach the duty imposed by s 288 of the Criminal Code upon a person who undertakes to administer surgical treatment. Initially the prosecution alleged that the appellant had been generally incompetent and grossly negligent in recommending the surgical procedures, in the manner in which he carried out those procedures, and in the post-operative treatment which he supervised. But on day 43 of the trial, the prosecution narrowed its case to focus on whether the surgical procedure in each case should have been undertaken. The appellant appealed to the Court of Appeal of the Supreme Court of Queensland on grounds which included that a miscarriage of justice had resulted from the change in the prosecution case. The Court of Appeal dismissed the appeal and upheld the appellant's conviction. The appellant appealed by special leave to the High Court on the ground that he had been convicted on a wrong basis. The appellant submitted that s 288 applied only to the conduct of surgery, not to the anterior decision to operate. The Court unanimously rejected that contention. Section 288 applied to "surgical… treatment", which encompassed all that was provided in the course of such treatment. Properly construed, the provision imposed a duty with respect to the formation of a judgment that surgery be undertaken. However, the High Court unanimously granted special leave to appeal, and allowed the appeal, on the ground that there was a miscarriage of justice in the conduct of the appellant's trial. The prosecution led a large body of evidence criticising the appellant's surgical skills and post-operative care in order to establish its original case that the appellant had been grossly negligent in all aspects of his treatment of the patients. As the trial progressed it became apparent, and it was not seriously disputed, that the evidence showed that the surgery had in fact been performed competently enough. The prosecution then radically changed its case, at a late point in the trial, to focus on the appellant's decision to undertake the surgical procedures. Much of the evidence about the surgery and post-operative care was prejudicial to the appellant but no longer relevant on the prosecution's revised case. The prejudicial effect on the jury was not overcome by the directions given by the trial judge about the limited use that could be made of that evidence. A substantial miscarriage of justice occurred. The Court set aside the order of the Court of Appeal and in its place ordered that there be a new trial. |
HIGH COURT OF AUSTRALIA 10 November 2021 THE QUEEN v ROLFE [2021] HCA 38 Today, the High Court granted special leave to appeal against a decision of the Full Court of the Supreme Court of the Northern Territory of Australia ("the Full Court") and unanimously allowed the appeal. The appeal concerned a question that had been referred to the Full Court ("Question 3") regarding the interpretation of s 148B of the Police Administration Act 1978 (NT) ("the Act"), which relevantly provided that a person is "not civilly or criminally liable" for acts done "in good faith" in the actual or purported "exercise of a power or performance of a function" under the Act. The respondent, a member of the Northern Territory Police Force ("Police Force"), was charged with murder and alternative offences under the Criminal Code (NT) in respect of a fatal shooting which occurred after the respondent had been deployed to arrest the deceased. Prior to the respondent's trial, the trial judge referred four questions to the Full Court on the basis of a set of "assumed facts", which were not agreed, and some aspects of which were likely to be disputed at trial. During the Full Court hearing, concerns were raised that Question 3 was hypothetical in nature. To meet those concerns, the parties had suggested reformulating Question 3 as: "Does a 'function' under s 148B of the [Act] include the functions listed in s 5(2) of the [Act]?". Section 5(2) listed the "core functions" of the Police Force, relevantly including "to protect life and property" and "to prevent ... offences". The Full Court reformulated Question 3, but not in the form suggested by the parties. The Full Court found that the protection afforded by s 148B extended to the performance of the functions listed in s 5(2), and answered its reformulated Question 3 to the effect that it would be open to the jury to find that the respondent was acting in the exercise or purported exercise of a power, or the performance or purported performance of a function, under the Act. The trial was set to commence on 23 August 2021. On 19 August 2021, the Crown applied to the High Court for special leave to appeal from the Full Court's decision in respect of Question 3. On 23 August 2021, the High Court granted a stay of the trial pending the hearing of the application. On 10 September 2021, the application was referred to the Full Court of the High Court for argument as on appeal. The application was heard on 2 November 2021. The High Court held that the Full Court erred in its reformulation of Question 3 and adopted the parties' suggested reformulation. The High Court answered Question 3 in the negative, holding that the relevant powers and functions to which s 148B applied were those of the common law, which s 25 of the Act conferred, and the power of arrest in s 124 of the Act. The common law and statutory powers are subject to constraints, such as doing only that which is reasonable and necessary. The High Court reasoned that, unlike ss 25 and 124, s 5 identified the principal functions of the Police Force but did not confer any particular power or function on its members. In granting special leave, the High Court also emphasised that, while it was necessary to correct the Full Court's error, it should not be assumed that the High Court would do so in every case given the undesirability of fragmenting the ordinary course of criminal proceedings. |
HIGH COURT OF AUSTRALIA 31 August 2016 NH v THE DIRECTOR OF PUBLIC PROSECUTIONS; JAKAJ v THE DIRECTOR OF PUBLIC PROSECUTIONS; ZEFI v THE DIRECTOR OF PUBLIC PROSECUTIONS; STAKAJ v THE DIRECTOR OF PUBLIC PROSECUTIONS [2016] HCA 33 Today the High Court unanimously allowed four appeals from the Full Court of the Supreme Court of South Australia. The High Court held that the Full Court did not have power to look behind the verdicts delivered by the foreperson of the jury, in open court in the sight and hearing of the other jurors without any dissent or action by them, to quash the appellants' acquittals of murder and convictions of manslaughter. The appellants were jointly charged with murder and tried before a judge and a jury in the Supreme Court of South Australia. In summing up, the trial judge directed the jury that they could deliver one of three verdicts in respect of each accused: guilty of murder, guilty of manslaughter or not guilty. Her Honour also directed the jury that a verdict of guilty of murder had to be unanimous, but any other verdict, including not guilty of murder, could be by a majority of 10 or more after four hours of deliberation. In returning verdicts, the foreperson, in answer to questions from the judge's associate, reported that the jury found each of the appellants not guilty of murder but guilty of manslaughter. Later that day, the foreperson reported to a court officer that he had mistakenly told the Court that at least 10 members of the jury had agreed on verdicts of not guilty of murder. Statements were taken from the foreperson and each of the other members of the jury. Parts of those statements appeared to indicate that there had not been a majority of 10 or more in favour of a verdict of not guilty of murder in relation to any of the appellants. The Director of Public Prosecutions ("DPP") applied to the Supreme Court for orders to quash of all of the verdicts and for a retrial of each of the appellants on the charge of murder. A majority of the Full Court made the orders sought by the DPP. In the majority's view, s 57(3) of the Juries Act 1927 (SA) required the jury to reach a verdict that the accused was not guilty of murder, unanimously or by majority, before it could reach a verdict as to the alternative offence of manslaughter. The foreperson's mistake in announcing the verdicts was said by the majority of the Full Court to have amounted to a material irregularity resulting in unlawful verdicts under s 57 of the Juries Act. That enlivened an inherent power, within the Court's inherent jurisdiction to prevent the abuse of its processes, to overturn the verdicts of acquittal and order a re-trial. By grant of special leave, the appellants appealed to the High Court. The High Court unanimously allowed each appeal. The High Court held that the verdicts delivered by the foreperson, without dissent or correction by the jury, later translated by the trial judge into perfected judgments of acquittal and conviction, were beyond the power of the Court to amend or set aside in an exercise of inherent power. Given that the jury's verdicts could not be impugned, there was no basis for receiving into evidence affidavits containing their statements about their deliberations. |
HIGH COURT OF AUSTRALIA 9 December, 2003 JASON SHAW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS The High Court of Australia today upheld a section of the Migration Act that enabled the Minister to cancel the visa of a British man who had lived in Australia since he was a child but who had never become an Australian citizen. Mr Shaw was born in the United Kingdom on 27 December 1972 and arrived in Australia on 17 July 1974 and has not left Australia since. He has two children who are citizens. Mr Shaw had criminal convictions dating back to age 14. In 1998 he was sentenced to five years’ imprisonment for property offences and two years’ jail for drug offences. On 17 July 2001 the Minister used his power under section 501(2) to cancel Mr Shaw’s visa because Mr Shaw failed the character test in section 501(6). He had a substantial criminal record within the meaning of section 501(7). The Court was asked whether Parliament’s power to make laws with respect to naturalisation and aliens under section 51(xix) of the Constitution supported section 501(2) to the extent that it authorised the Minister to cancel Mr Shaw’s visa. The Court, by a 4-3 majority, answered that section 501(2) was within power. Mr Shaw argued he was not an alien when he arrived in Australia and nothing since had placed him within reach of the aliens power because he was a British subject. The Court held that British subject was not a synonym for the constitutional expression “subject of the Queen”. The Court held that the relationship between the UK and Australia had changed since federation, so that the UK was now regarded as a foreign power and its citizens as aliens, and that the Constitution contemplated such change. UK citizens could not be regarded as subject to implicit protection from the legislative power with respect to aliens. |
HIGH COURT OF AUSTRALIA 6 October 2011 AB v STATE OF WESTERN AUSTRALIA & ANOR AH v STATE OF WESTERN AUSTRALIA & ANOR [2011] HCA 42 Today the High Court upheld appeals by AB and AH against the decisions of the Court of Appeal of the Supreme Court of Western Australia, which had set aside the decision of the State Administrative Tribunal ("the Tribunal") and refused the appellants' applications for recognition certificates ("certificates") of female to male gender reassignment under the Gender Reassignment Act 2000 (WA) ("the Act"). The Act establishes a Gender Reassignment Board ("the Board"), and provides for the issue of a certificate which is conclusive evidence of the fact that a person has undergone a reassignment procedure and is of the sex stated in the certificate. The functions of the Board are to receive and determine applications for certificates, and to issue certificates in suitable circumstances. Before a person can apply to the Board for a certificate, the person must have undergone a reassignment procedure, as defined in s 3 of the Act. The appellants, AB and AH, each identify themselves as male. Each applied to the Board for certificates which stated that they were male. Each of the appellants has undergone gender reassignment procedures in the nature of a bilateral mastectomy and testosterone therapy, although they retain some female sexual organs. Section 15(1)(b)(ii) of the Act relevantly provides that the Board must be satisfied that the person applying for a recognition certificate has the "gender characteristics" of the gender to which the person has been reassigned. "Gender characteristics" is defined by s 3 of the Act as "the physical characteristics by virtue of which a person is identified as male or female". The Board was satisfied that the appearance of each of the appellants is that of a male person, but determined not to issue a certificate in each case because the appellants retained a female reproductive system. Following a review of the Board's decisions, the Tribunal set aside the decisions, granted each application for a certificate and directed the Board to issue such a certificate. The Court of Appeal of the Supreme Court of Western Australia allowed the appeals from those decisions and set aside the Tribunal's decision. The High Court unanimously upheld the appeals and set aside the orders of the Court of Appeal, with the result that the decision and orders of the Tribunal were reinstated. The focus of the appeals to the High Court was on the meaning of "gender characteristics" in s 15(1)(b)(ii) of the Act, as defined in s 3 of the Act. The Court held that, for the purposes of the Act, the physical characteristics by which a person is identified as male or female are confined to external physical characteristics that are socially recognisable. Social recognition of a person's gender does not require knowledge of a person's remnant sexual organs. The requirements of the Act, including s 15(1)(b)(ii), are to be given a fair and liberal interpretation in order that they achieve the Act's beneficial purposes. The Act contains no warrant for implying further requirements such as potential adverse social consequences or community standards and expectations. |
HIGH COURT OF AUSTRALIA 19 June 2019 CARTER HOLT HARVEY WOODPRODUCTS AUSTRALIA PTY LTD v THE COMMONWEALTH OF AUSTRALIA & ORS [2019] HCA 20 Today the High Court unanimously dismissed an appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria concerning the payment of priority debts and amounts out of trust assets held by an insolvent corporate trustee. Amerind Pty Ltd ("Amerind") carried on a business solely in its capacity as trustee of a trading trust and, to that end, maintained credit facilities with Bendigo and Adelaide Bank Ltd ("the Bank"). After terminating those facilities and demanding repayment, the Bank appointed the second respondents ("the receivers") as receivers and managers of Amerind pursuant to a general security deed. Amerind's creditors then resolved that the company be wound up in insolvency. The receivers realised Amerind's assets and satisfied its obligations to the Bank out of the proceeds. After provision for what the receivers considered to be a just estimate of their remuneration, the surplus remaining for distribution was some $1,619,108, being the proceeds of realisation of inventory. The first respondent ("the Commonwealth"), which had advanced accrued wages and entitlements totalling $3.8 million to Amerind's former employees, claimed to be entitled to payment out of that surplus in priority to other creditors, including the appellant ("Carter Holt"), pursuant to ss 433(3), 556(1)(e) and 560 of the Corporations Act 2001 (Cth). In rejecting the Commonwealth's claim, the primary judge held that s 433 of the Corporations Act did not apply because Amerind had no assets of its own, only a right of indemnity in respect of trust liabilities, which right was neither "property of the company" nor "comprised in or subject to a circulating security interest" within the meaning of that section. In allowing the Commonwealth's appeal from that decision, the Court of Appeal held that Amerind's right to be indemnified out of the assets of the trust was "property of the company" and that ss 433, 555 and 556 therefore necessarily applied to the distribution of the surplus. The Court of Appeal further held that, because the proceeds of realisation of the inventory were property of Amerind subject to a circulating security interest and of which the receivers had taken possession or assumed control, s 433(3) required the receivers to pay the claims in s 556(1)(e) in priority out of those proceeds. By grant of special leave, Carter Holt appealed to the High Court. The High Court unanimously held that, in the winding up of a corporate trustee, the "property of the company" available for payment of creditors includes so much of the trust assets as the company is entitled, in exercise of its right of indemnity, to apply in satisfaction of the claims of creditors, but that proceeds from an exercise of the right of exoneration may be applied only in satisfaction of trust liabilities to which the right relates. The Court also held that s 433(3) required the receivers to pay the debts in accordance with the statutory priorities in a winding up. A majority reasoned that Amerind's right of indemnity was not "property [of the company] comprised in or subject to a circulating security interest", but the inventory itself was such "property of the company" and the receivers were, as Amerind would have been, entitled to apply the proceeds of its realisation in satisfaction of the claims of trust creditors. |
HIGH COURT OF AUSTRALIA 29 February 2012 AUSTRALIAN EDUCATION UNION v DEPARTMENT OF EDUCATION AND CHILDREN'S SERVICES [2012] HCA 3 Today the High Court allowed an appeal from the Full Court of the Supreme Court of South Australia, which had held that the Minister of Education was empowered to appoint temporary "contract teachers" under s 9(4) of the Education Act 1972 (SA) ("the Act"). The High Court held that the Minister was empowered to appoint teachers only under s 15 of the Act. In South Australia, the Minister could appoint persons as "officers of the teaching service" under s 15(1) of the Act. For many years, the Minister also purported to appoint persons as temporary "contract teachers" under s 9(4) of the Act. Section 9(4) provided for the appointment of "such officers and employees (in addition to ... the teaching service)" as the Minister considered necessary "for the proper administration of this Act or for the welfare of the students of any school". Long service leave entitlements of officers and employees appointed under s 9(4) were less favourable than the entitlements enjoyed by officers of the teaching service appointed under s 15. In 2005, the Department of Education and Children's Services advised the South Australian Branch of the Australian Education Union ("the AEU") that contract teachers would, in the future, be appointed under s 15 of the Act, and in 2007, s 9(4) was repealed. However, the parties continued to dispute the long service leave entitlements of persons who had purportedly been appointed under s 9(4) prior to the repeal of that section. In March 2007, the AEU notified the Industrial Relations Commission of South Australia ("the Commission") of the dispute, asserting that the Minister's power to appoint teachers stemmed from s 15 of the Act, and that all temporary or contract teachers, being officers of the teaching service, were entitled to long service leave entitlements as persons appointed under s 15. The Commission referred two questions of law to the Industrial Relations Court of South Australia ("the IRC"): 1. Did s 9(4) of the Act, at the time that it was in force, authorise the Minister to appoint officers to be engaged as teachers, or did s 15 provide exclusively for the appointment of teachers? In consequence of the answer to question one, are the long service leave entitlements of any teachers purportedly appointed pursuant to s 9(4) governed by the provisions of the Public Sector Management Act 1995 (SA), or Division 3 of Part 3 of the Act? The Full Court of the IRC concluded that s 9(4) had authorised the Minister to appoint officers to be engaged as teachers independently of s 15. An appeal to the Full Court of the Supreme Court was dismissed. The AEU appealed, by special leave, to the High Court of Australia. The High Court allowed the appeal, but remitted question two to the Full Court of the IRC for further consideration. In answer to question one, the High Court held that, at the time it was in force, s 9(4) of the Act did not authorise the Minister to appoint officers to be engaged as teachers, and s 15 provided exclusively for the appointment of teachers. The High Court rejected a submission that the words "in addition to" in s 9(4) meant "as well as" and should be read as supplementary or expansionary, holding that they were words of limitation, used in the sense of "apart from". The High Court held that even if it were possible to characterise the power conferred by s 15 as a specific power carved out of a more general power conferred by s 9(4), the general power should be read as not applying to the subject matter of the specific power. |
HIGH COURT OF AUSTRALIA 15 June 2004 ROSELLIE JONNELL COLE v SOUTH TWEED HEADS RUGBY LEAGUE FOOTBALL CLUB LIMITED AND ANGELA JANE LAWRENCE A woman who was struck by a vehicle while intoxicated failed in her appeal against the rugby league club where she had spent the day drinking. The High Court of Australia held the club had not breached any duty it owed to the woman. Ms Cole, then aged 45, attended a regular Sunday champagne breakfast at the club with friends and stayed on drinking while football matches were played. She was asked to leave at 5.30pm and was struck by a four-wheel drive vehicle driven by Mrs Lawrence near the club at 6.20pm and seriously injured. She was found to have a blood-alcohol concentration of 0.238 per cent. The Court of Appeal of the Supreme Court of New South Wales held that the evidence did not support a finding that Mrs Lawrence had driven negligently. It held that the club owed Ms Cole only the general duty of care owed by the occupier of premises to a lawful entrant. This duty did not extend to protecting patrons from harm of the kind suffered by Ms Cole caused by inebriation. Ms Cole appealed to the High Court. In the High Court Ms Cole argued that the club supplied her with drink when a reasonable person would know she was intoxicated and that it allowed her to leave in an unsafe condition. However other people bought alcohol that she drank, drinks could also be bought at the adjoining football ground and the club refused her service from 3pm. The High Court accepted the Court of Appeal finding that the club had not served her after 12.30pm. When the club manager asked Ms Cole to leave, he offered her both the club’s courtesy bus and a taxi, but she swore at him, and two men she had befriended said they would take care of her. The High Court, by a 4-2 majority, dismissed the appeal. It held that an adult in Ms Cole’s position knew the effects and risks of excessive drinking and that the club had done all that could be expected of it to ensure her safety. The Court held the club could not be expected to monitor the number of drinks consumed by each patron or to compel her to stay on its premises to sober up after she refused its offers of transport. Without deciding the content and extent of any duty of care owed by an operator of licensed premises, which might depend on the circumstances of a particular case, the Court held that the club had not failed in any duty toward Ms Cole. |
HIGH COURT OF AUSTRALIA 29 May 2020 HOCKING v DIRECTOR-GENERAL OF THE NATIONAL ARCHIVES OF AUSTRALIA [2020] HCA 19 Today the High Court by majority allowed an appeal from a judgment of the Full Court of the Federal Court of Australia. The appeal concerned the question of whether correspondence between the former Governor-General of Australia, Sir John Kerr, and Her Majesty Queen Elizabeth II in the custody of the National Archives of Australia ("the Archives") was constituted by "Commonwealth records" for the purposes of the Archives Act 1983 (Cth) because the correspondence was "the property of the Commonwealth or of a Commonwealth institution". Pursuant to the Archives Act, the Archives has responsibility for the "care and management" of "the archival resources of the Commonwealth". Section 3(2) of the Archives Act defines the archival resources of the Commonwealth as consisting of "Commonwealth records and other material" that are "of national significance or public interest" and that "relate to", amongst other things, "the history or government of Australia". A "Commonwealth record" is defined in s 3(1) as including "a record that is the property of the Commonwealth or of a Commonwealth institution". "Commonwealth institution" is defined as including "the official establishment of the Governor-General". Subject to exceptions, a Commonwealth record within the care of the Archives must be made available for public access once the record is within the "open access period", which for a Commonwealth record created before 1980 is 31 years after the date of creation. There is no requirement for public access to archival resources of the Commonwealth that are not Commonwealth records. The correspondence was exchanged throughout the period of Sir John Kerr's term of office as Governor-General and was described as personal and confidential. In 1978, on the instructions of Sir John Kerr, the correspondence was deposited with the Archives (then known as the Australian Archives) by Mr David Smith, the Official Secretary to the Governor-General, in fulfilment of an arrangement he had made with the Director-General of the Archives ("the Director-General"). In 2016, Professor Jennifer Hocking requested access to Record AA1984/609, which contained the deposited correspondence. That request was rejected by the Director-General on the basis that Record AA1984/609 did not contain Commonwealth records. An argument that the deposited correspondence was not the property of the Commonwealth but was private or personal to Sir John Kerr was accepted by the Federal Court at first instance and by a majority of the Full Court on appeal. In the High Court, the majority held that the correspondence was constituted by Commonwealth records because it was the property of the Commonwealth or of a Commonwealth institution, namely the official establishment of the Governor-General. Five Justices in the majority held that in the statutory context of the Archives Act the term "property" connoted the existence of a relationship in which the Commonwealth or a Commonwealth institution had a legally endorsed concentration of power to control the custody of a record. Their Honours held that the arrangement by which the correspondence was kept by Mr Smith and then deposited with the Archives demonstrated that lawful power to control the custody of the correspondence lay with the Official Secretary, an office within the official establishment of the Governor-General, such that the correspondence was the property of the official establishment. The other Justice in the majority held that the correspondence was, by common law concepts of property employed in the Archives Act, the "property of the Commonwealth" because it had been created or received officially and kept by the official establishment of the Governor-General. |
HIGH COURT OF AUSTRALIA Public Information Officer 7 August, 2003 RE MEMBERS OF THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, THE MARITIME UNION OF AUSTRALIA, THE AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS, AND THE AUSTRALIAN MARITIME OFFICERS' UNION; EX PARTE CSL PACIFIC SHIPPING INC The Australian Industrial Relations Commission had jurisdiction to consider an application to add the owners of a Bahamas-registered ship crewed by Ukrainians to an award governing the rates of pay and conditions of employment of crews of ship operating in Australian waters, the High Court of Australia held today. CSL Pacific Shipping is incorporated in Barbados. The company and an Australian corporation, CSL Australia Pty Ltd, are members of the Canadian-owned CSL Group Inc. In July 2000, CSL Pacific acquired a ship, River Torrens, from CSL Australia and renamed it CSL Pacific and registered it in the Bahamas. CSL Pacific recruited a crew in the Ukraine and traded in North Asia before returning to Australia in October 2001 under charter to CSL Australia. CSL Pacific did not hold a licence to engage in coasting trade but carried cargoes between ports around Australia under either continuing voyage or single voyage permits issued under the Navigation Act. The permits carried no conditions about crew pay rates, which were less than award rates. The three unions applied to the AIRC to have CSL Pacific added to the award's schedule of employers. None of the crew are members of those unions. The Full Bench of the AIRC concluded it had jurisdiction to hear and determine an application to vary the award as the matter was an industrial issue under section 5 of the Workplace Relations Act. It allowed 15 working days to show cause why the award should not be varied to add CSL Pacific and to add a provision that the award applied to voyages within Australian waters, or while operating under a permit or licence granted under the Navigation Act, or on a voyage to or from an Australian port. In the High Court, CSL Pacific sought constitutional writs to quash the AIRC decision and to prohibit any further proceeding on the unions' application to vary the award. CSL Pacific argued that the Commonwealth Parliament's constitutional powers did not authorise the making of laws regulating employer-employee relations when the employer has no presence in Australia and the employees are foreign seafarers. The Court unanimously held that the Workplace Relations Act and the Navigation Act should be read together, the Workplace Relations Act did enable the varying of the award to cover CSL Pacific crew and the legislation was within power. |
HIGH COURT OF AUSTRALIA Public Information Officer 8 April, 2003 The High Court of Australia today dismissed an application for special leave to appeal by a man convicted of murder. Michael Heron was found guilty of fatally stabbing Bill Jularic with a knife during a fight at the Beresford Hotel in Darlinghurst in Sydney in 1996. The principal issue at Heron’s trial in the New South Wales Supreme Court was whether Jularic was stabbed or whether he accidentally impaled himself on a shard of broken glass. Heron was sentenced to 14 years’ jail. The Court of Criminal Appeal rejected his appeal. Heron then sought leave to appeal to the High Court on the ground that the trial judge misdirected the jury on provocation, despite Heron’s defence counsel not raising the issue during the trial, not seeking any redirection and not raising this ground in the NSW Court of Criminal Appeal. The High Court unanimously held that the trial judge had misdirected the jury on provocation by asking it to consider what an ordinary person must or would have done rather than what an ordinary person could have done. But the Court held that this did not result in any miscarriage of justice, given the manner in which the trial was fought and the weight of evidence against Heron. The Court followed previous decisions that in exceptional circumstances it could hear criminal appeals on grounds neither raised at trial nor in the intermediate court of appeal but held that the circumstances of Heron’s case did not warrant such a course. |
HIGH COURT OF AUSTRALIA Manager, Public Information 7 July 2009 BRYAN REGINALD PAPE v THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA & ANOR [2009] HCA 23 On 3 April 2009 the High Court announced its answers to the questions raised in an application by Mr Bryan Pape for relief including declarations that the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) was invalid and that the payment of the “tax bonus” to him under that Act was unlawful. The Court now publishes its reasons. When Mr Pape filed his proceedings he was a taxpayer who was entitled to receive $250 under the Bonus Act. The parties agreed to submit four questions to the High Court for determination, by way of a special case under the Rules of the Court: 1. Does Mr Pape have standing to seek the relief claimed in his Writ of Summons and his Statement of Claim? 2. Is the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) valid because it is supported by one or more expressed or implied heads of legislative power under the Commonwealth Constitution? 3. Is payment of the tax bonus to which Mr Pape is entitled under the Bonus Act supported by valid appropriation under sections 81 and 83 of the Constitution? 4. Who should pay the costs of the special case? Question 1: The Commonwealth conceded that Mr Pape had standing to contend that the payment to him under the Bonus Act was unlawful, but submitted that he did not have sufficient special interest to argue the broader issue that the Bonus Act was invalid in its application to other persons. No member of the Court accepted this submission. A finding by the Court that the payment of the bonus to Mr Pape was unlawful because the Bonus Act was invalid would be binding in any subsequent disputes concerning the validity of the Bonus Act. All members of the Court determined that Mr Pape had standing to seek a declaration of invalidity. Question 2: The Court, by majority, held that the Bonus Act was a valid law of the Commonwealth Parliament, supported by s 51(xxxix) of the Constitution as being incidental to the exercise by the Commonwealth Government of its executive power under s 61 of the Constitution. Question 3: Mr Pape argued that the money that was to be paid to taxpayers under the Bonus Act had not been appropriated from the Consolidated Revenue Fund by law, as required by s 83 of the Constitution. He also argued that, even if there had been an appropriation by law, it was not an appropriation "for the purposes of the Commonwealth". Section 81 of the Constitution states: "All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution." The Court held by majority that there was an appropriation by law. Section 16 of the Taxation Administration Act 1953 (Cth) appropriated the Consolidated Revenue Fund for the payment of certain amounts the Commissioner is required to pay under any "taxation law". Section 3 of the Bonus Act had the effect of making the Bonus Act a "taxation law". The Bonus Act increased the amount of money to be withdrawn from the Consolidated Revenue Fund under an existing appropriation. That was sufficient to meet the requirement of s 83. The Court held that sections 81 and 83 do not themselves authorise any expenditure; rather they require that the spending of government funds be authorised by Parliament. Question 4: In accordance with an agreement between the parties the Court made no order for costs. |
HIGH COURT OF AUSTRALIA 17 December 2015 PLAINTIFF M64/2015 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2015] HCA 50 Today, the High Court unanimously held that a decision by a delegate of the Minister for Immigration and Border Protection ("the Minister") to refuse to grant Refugee and Humanitarian (Class XB) (Subclass 202) visas ("Subclass 202 visas") to the plaintiff's family was not affected by jurisdictional error. On 29 May 2010, the plaintiff arrived in Australia and became an "unlawful non-citizen" within the meaning of the Migration Act 1958 (Cth) ("the Act"). The plaintiff was granted a protection visa by the Minister. The plaintiff's family subsequently applied for Subclass 202 visas under the Australian Government's Special Humanitarian Programme. Subclass 202 visas are directed to the immigration of people who are subject to substantial discrimination in their home country and who are members of the immediate family of a person in Australia who has already been granted a protection visa. The plaintiff proposed his family's visa application in accordance with the Migration Regulations 1994 (Cth) ("the Regulations"). The application was refused by a delegate of the Minister. In a letter to the plaintiff's family, the delegate wrote that, in deciding to refuse the application, he had considered that Australia does not have the capacity to resettle all humanitarian visa applicants, and that only the highest priority applications can be successful. The plaintiff commenced proceedings in the original jurisdiction of the High Court seeking an order to quash the delegate's decision to refuse to grant the Subclass 202 visas and an order requiring the Minister to determine the application according to law. The plaintiff argued that the delegate misconstrued and misapplied cl 202.222(2) of Schedule 2 to the Regulations, which provides for the grant of a visa if the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a visa. The plaintiff also argued that the delegate unlawfully applied a policy of the Department for Immigration and Border Protection that required that the lowest priority be accorded to the plaintiff's family's application on the basis of the type of visa that the plaintiff had been granted and the circumstance that he arrived in Australia as an "irregular maritime arrival". In refusing the plaintiff's application, the High Court held that the delegate's decision was not affected by jurisdictional error. The Court held that cl 202.222(2) raises only one criterion for the grant of a visa: namely, that the Minister is satisfied that there are compelling reasons for giving special consideration to granting that visa. The capacity of the Australian community to provide for the permanent settlement of an applicant in Australia and the number of places in Australia's Special Humanitarian Programme are considerations that may inform the Minister's state of satisfaction. The Court also held that the departmental policy was not inconsistent with the Act or Regulations and that it had not been applied inflexibly. |
HIGH COURT OF AUSTRALIA 13 October 2021 MINERALOGY PTY LTD & ANOR v STATE OF WESTERN AUSTRALIA [2021] HCA 30 CLIVE FREDERICK PALMER v THE STATE OF WESTERN AUSTRALIA [2021] HCA 31 Today the High Court unanimously answered questions stated in two special cases concerning whether the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) ("the Amending Act") was wholly or partly invalid. The Amending Act purported to amend the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) ("the State Act"). The plaintiff in one special case, Mr Palmer, is the controller and majority beneficial owner of Mineralogy Pty Ltd ("Mineralogy"), and is a director of that company and of International Minerals Pty Ltd ("International Minerals"). Those two companies were the plaintiffs in the other special case ("the plaintiff companies"). In 2001, Mineralogy and various co-proponents (including International Minerals) made an agreement with the State of Western Australia ("the agreement"). Under the agreement, Mineralogy, alone or in conjunction with a co-proponent, could submit proposals to the relevant Minister in relation to mining projects in the Pilbara region. The Minister could respond in various ways but could not reject the proposals. The agreement and a 2008 variation to it were set out in schedules to the State Act, and thereby formed part of that Act. The plaintiff companies had submitted proposals to the Minister in 2012 and 2013. Disputes arose in relation to the 2012 proposal. Those disputes were referred to arbitration, resulting in arbitral awards dated 20 May 2014 and 11 October 2019. Those awards broadly favoured the plaintiff companies. In August 2020, the Parliament of Western Australia passed the Amending Act. The Amending Act purported to insert a new Pt 3 into the State Act. Within Pt 3, s 9 purported to deprive the 2012 and 2013 proposals of legal effect and s 10 purported to deprive the 2014 and 2019 arbitral awards of legal effect. Mr Palmer was named in various provisions of Pt 3. In answer to the questions stated in the special cases, the Court held that the Amending Act was not invalid or inoperative in its entirety and that ss 9(1), 9(2) and 10(4)-(7) of the State Act were not invalid or inoperative to any extent; it was otherwise unnecessary to consider the validity of Pt 3 or any other provision of the State Act. To arrive at those conclusions, the Court found it necessary to answer the following sub-questions. First, did the manner of enactment of the Amending Act contravene s 6 of the Australia Act 1986 (Cth)? Second, did the Amending Act exceed some limitation on the legislative power of the Parliament of Western Australia arising from the rule of law or deeply rooted common law rights? Third, were ss 9(1), 9(2) and 10(4)-(7) of the State Act invalid on the basis that they were incompatible with Ch III of the Constitution? Fourth, were the same provisions invalid on the basis that they were incompatible with s 118 of the Constitution? Fifth, did the Amending Act single out Mr Palmer for a "disability" or "discrimination" of a kind forbidden by s 117 of the Constitution? The Court's answer to each of those sub-questions was "No". |
HIGH COURT OF AUSTRALIA 20 October 2010 WORKCOVER QUEENSLAND v AMACA PTY LTD & ANOR [2010] HCA 34 Today the High Court unanimously held that limitations on damages recoverable by an estate suing on behalf of a deceased person under s 66 of the Succession Act 1981 (Qld) ("the Succession Act") do not apply to a workers' compensation insurer seeking to recover from wrongdoers under the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the Compensation Act") compensation paid to a worker who died before the insurer's action came to trial. Mr Rex Noel Thomson was a worker who died in 2006 from malignant mesothelioma contracted as a result of inhaling asbestos in products manufactured by the respondents. Prior to his death, WorkCover Queensland paid to Mr Thomson the sum of $340,000 as compensation under the Compensation Act. Mr Thomson had not instituted any action for damages against either respondent before his death. WorkCover was consequently able to pursue its entitlement under s 207B(7)(a) of the Compensation Act to be indemnified by a wrongdoer to the extent of the wrongdoer's liability for the damages. Section 66(2) of the Succession Act operates to limit the damages recoverable where a cause of action survives a person's death for the benefit of that person's estate under s 66(1), by excluding matters such as damages for pain and suffering, for any bodily or mental harm or for curtailment of expectation of life. In a case stated for the Court of Appeal of the Supreme Court of Queensland, that Court considered that the Succession Act did operate to reduce the amount of the indemnity that WorkCover was entitled to claim in the circumstances. It held by majority that the extent of the indemnity was delineated by the statutory limitations which would operate if an action was pursued by the deceased's personal representative after death. The High Court allowed an appeal by WorkCover, holding that s 66(2) of the Succession Act operates as a limitation on the remedy available, which applies only to an action brought by the estate of the person in whose favour a liability existed. The Court held that the section does not operate to limit the liability of a wrongdoer towards the deceased person, and thus the quantum of WorkCover's indemnity was not reduced following Mr Thomson's death or the consequent impact of s 66(2) on any action which may have been brought by Mr Thomson's estate. The respondents were ordered to pay WorkCover's costs. |
HIGH COURT OF AUSTRALIA 30 June 2020 [2020] HCA 23 Today the High Court unanimously allowed an appeal from the Full Court of the Supreme Court of the Northern Territory. The appeal concerned whether, in a criminal trial, the prosecution's obligation to put its case fully and fairly before the jury ordinarily requires it to tender the record of an interview between an accused and police which contains both inculpatory and exculpatory statements ("mixed statements"). The Court held that this obligation does require the prosecution to tender a record of interview containing mixed statements, unless there is good reason not to do so. The appellant was charged on indictment with one count of unlawfully causing serious harm to another and one count of aggravated assault, contrary to the Criminal Code (NT), and stood trial before a jury in the Supreme Court of the Northern Territory. Prior to being charged the appellant had participated in a recorded interview with police about the offences. The interview contained statements in the nature of admissions, together with exculpatory statements which could be taken as a claim of self-defence. The recorded interview was relevant and admissible. The prosecution did not tender it. The interview had been played to a jury as part of the prosecution case in an earlier trial for the same offences, in which the jury had been unable to reach a verdict. Before the appellant's retrial, the prosecution advised the Court that it would not be tendering the interview in the retrial. It conceded that its decision not to do so was a "tactical" one. The appellant's retrial was stayed whilst two questions were referred to the Full Court, being: (1) whether the recorded interview containing the mixed statements was admissible and (2) whether the prosecution was obliged to tender it. The Court answered the first question yes and the second question no. The Court followed a previous decision of the Court of Criminal Appeal of the Supreme Court of the Northern Territory, constituted by the same judges, in Singh v The Queen (2019) 344 FLR 137. In that case, a majority held that there was no general principle that a prosecutor must, as a matter of fairness, tender either exculpatory or mixed out-of-court statements by an accused. By grant of special leave, the appellant appealed to the High Court in relation to the Full Court's finding on Question 2. Allowing the appeal, the Court explained that the question of the duty of the prosecutor is not to be confused with that of the admissibility of evidence of mixed statements. While it affirmed that it is for the prosecution to decide which witnesses are to be called and what evidence is to be presented in its case, the question in this appeal was resolved by another fundamental principle affecting the conduct of a criminal trial, namely that the prosecution must put its case both fully and fairly before the jury. The Court held that, if this duty is to be met, it is to be expected that a prosecutor will tender a mixed statement, unless there is good reason not to do so. A majority held that the duty of fairness encompasses the presentation of all available, cogent and admissible evidence, and observed that only where the reliability or credibility of evidence is demonstrably lacking would those circumstances warrant a refusal to tender it. In the result, the Court unanimously set aside the Full Court's answer to Question 2 and answered it in the affirmative. |
HIGH COURT OF AUSTRALIA 15 November 2006 Public Information Officer MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v QAAH OF 2004 AND REFUGEE REVIEW TRIBUNAL The holder of a temporary protection visa is not entitled to further protection in Australia if they are no longer in danger in the country from which they fled, the High Court of Australia held today. QAAH, a Shi’a Muslim of Hazara ethnicity, arrived in Australia from Afghanistan in 1999. In 2000 he was granted a three-year temporary protection visa. He was granted a second temporary protection visa in 2003 pending a decision on his application for a permanent visa. QAAH’s application was refused, a decision affirmed by the Refugee Review Tribunal. The RRT held that the Refugees Convention cessation provision applied and that QAAH no longer had a well-founded fear of persecution. Article 1C(5) states that the Convention shall cease to apply if the person refuses to avail themselves of the protection of their country of nationality when the circumstances in connection with which they had been recognised as a refugee have ceased to exist. The RRT noted that the Taliban was effectively dislodged from power by late 2001 and was no longer a coherent political movement. It also found that QAAH was unlikely to be persecuted for his ethnicity and religion by other groups he identified. The Federal Court of Australia dismissed QAAH’s application for judicial review of the RRT decision. The Full Court, by majority, allowed an appeal. It held that the Minister bore the onus of proving that QAAH was no longer a refugee under the Migration Act and, to attract the Convention’s cessation provision, must show changes in Afghanistan were substantial, effective and durable, with no real chance of Taliban persecution. The majority held that the RRT had made jurisdictional errors, including failure to establish the extent of Taliban activity, particularly around QAAH’s home; failure to consider the stability of the Afghan government; and failure to express findings on the cessation clause. The Minister then appealed to the High Court. The Court, by a 4-1 majority, allowed the appeal. The majority held that Australian law prevails if it conflicts with the Convention, which has not been enacted as domestic law, apart from a reference in section 36 of the Migration Act. Courts will however endeavour to adopt a construction of the Act which conforms to the Convention. The majority held that neither the Act nor the Convention require that when a threat passes protection should be regarded as necessary and continuing. The status of a person permitted to reside in an asylum country may change as circumstances in the country which he has left change. Under the Act, when a visa expires the holder must apply for another visa. In the case of an application for a protection visa section 36 applies. Whether Australia has protection obligations under section 36 depends upon whether a person satisfies the definition of a refugee in Article 1A of the Convention in the context of other articles, none of which say anything about the period of residence or permanent residence. Section 36 is couched in the present tense and does not refer to past obligations Australia may have had but only to current obligations. The Act does not pose the question posed by the Full Court – whether changes in the applicant’s country are substantial, effective and durable – and does not put the onus upon the Minister to show such changes have occurred. If an applicant has been accepted as fearing persecution and has been granted a protection visa for a certain period, Australia is not then treated as either having accepted the applicant for a new visa is a refugee for all times and all purposes or assuming the burden of showing that the basis for a well-founded fear no longer exists. |
HIGH COURT OF AUSTRALIA 14 April 2021 ALO-BRIDGET NAMOA v THE QUEEN [2021] HCA 13 Today the High Court unanimously dismissed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales ("the CCA"). The appeal concerned the interpretation of s 11.5(1) of the Criminal Code (Cth) ("the Code"), which creates a statutory offence of conspiracy, and whether that offence applies to spouses who agree between themselves, and no other person, to commit an offence against a law of the Commonwealth. Following a trial by jury in the Supreme Court of New South Wales, the appellant was convicted of conspiring to do acts in preparation for a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Code. The offence occurred between 8 December 2015 and 25 January 2016. Prior to the trial, the trial judge rejected an application for a permanent stay which had been made on the basis that the appellant and her co-conspirator married on 30 December 2015, and, as husband and wife, could not be guilty of conspiracy under the Code. On 6 April 2020, the CCA held that on the clear language of the Code, a husband and wife are each a "person" and can be guilty of conspiring with each other within the meaning of s 11.5. By grant of special leave, the appellant appealed to the High Court. The Court upheld the CCA's decision, holding that the proper interpretation of s 11.5(1) of the Code is not affected by any common law rule that spouses alone cannot conspire. Irrespective of whether there is or was such a common law rule, that rule had not been incorporated into the offence in s 11.5 by the words "conspires" and "conspiracy". It was therefore unnecessary for the Court to consider whether the common law includes or included such a rule at any relevant time. The Court confirmed that whatever may have been the historical position, there is no longer any principle in Australian common law respecting the single legal personality of spouses. Section 11.5(1) applies to spouses who agree between themselves, and no other person, to commit an offence against a law of the Commonwealth. Accordingly, the offence in s 11.5 applied to the appellant and the appeal was dismissed. |
HIGH COURT OF AUSTRALIA 9 November 2022 AWAD v THE QUEEN; TAMBAKAKIS v THE QUEEN [2022] HCA 36 Today, the High Court allowed an appeal from the Court of Appeal of the Supreme Court of Victoria. The appeal concerned whether the giving of a jury direction, prohibited by statute, resulted in a substantial miscarriage of justice for the purpose of s 276(1)(b) of the Criminal Procedure Act 2009 (Vic). Following a joint trial, Mr Awad and Mr Tambakakis were convicted of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, namely cocaine. Mr Awad did not give evidence, instead relying significantly on the evidence of Mr Tambakakis that Mr Awad did not get in the van used to move the consignment. The core of Mr Tambakakis' evidence was that he thought the consignment contained steroid tablets, which are not a border-controlled drug. The sole issue in dispute at trial reduced to whether Mr Awad and Mr Tambakakis, in the belief the consignment contained a border-controlled drug, received, had physical possession of, or had control or joint control of the consignment. Consequently, the credibility of Mr Tambakakis' evidence was at the heart of the trials of both Mr Awad and Mr Tambakakis. The trial judge directed the jury that "there are two factors that are significant that you should have regard to when you are assessing Mr Tambakakis' evidence. Firstly, in a criminal trial, there is nothing more [that] an innocent [person] can do than give evidence in his own defence and subject himself to cross-examination, and that is what occurred here. On the other hand, secondly, a guilty person might decide to tough out cross-examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence. You should consider both of these observations when evaluating Mr Tambakakis' evidence". This direction was prohibited by s 44J of the Jury Directions Act 2015 (Vic). The trial judge gave other directions to the jury generally about the onus and standard of proof, and a direction that if the jury rejected the evidence of Mr Tambakakis they should put his evidence to one side rather than finding him guilty, but if they accepted his evidence then they would find him not guilty. The Court of Appeal unanimously rejected the submission that a contravention of s 44J was such a fundamental error that, without more, it would always result in a substantial miscarriage of justice. The majority held that there was no substantial miscarriage of justice in the particular circumstances of the case, because in the context of the charge to the jury as a whole, the prohibited direction would not have distracted the jury from its task. The High Court, by majority, held that there was a substantial miscarriage of justice, and ordered a new trial for each of Mr Awad and Mr Tambakakis. The Court held that while not every breach of s 44J will result in a substantial miscarriage of justice, in the present case, the direction left the jury with the choice to approach Mr Tambakakis' evidence on the assumption that he was a guilty person, in circumstances where his credibility was central to both his defence and Mr Awad's defence. Despite correct directions which mitigated the damage caused by the prohibited direction, there remained the capacity for the prohibited direction to undermine the presumption of innocence and deflect the jury from its fundamental task of deciding whether the prosecution had proved the elements of the charged offence beyond reasonable doubt. |
HIGH COURT OF AUSTRALIA THE QUEEN v PHAM [2015] HCA 39 4 November 2015 Today the High Court unanimously held that the Court of Appeal of the Supreme Court of Victoria was wrong to determine that the respondent should be sentenced for a federal offence in accordance with current sentencing practices in Victorian courts, rather than current sentencing practices throughout the Commonwealth. The High Court also held that the Court of Appeal erred in its use of a statistical analysis of past sentences in finding that the respondent's sentence was manifestly excessive. In 2013, the respondent travelled to Vietnam from Australia. Upon his return to Melbourne Airport, flight crew informed officers of the Australian Customs and Border Protection Service that the respondent had required medical attention during the flight for a potential drug overdose, and that a crew member had found two clear plastic packages containing white powder in a bathroom that the respondent had used. Customs officers detained the respondent, who admitted under caution that the packages were his and that he guessed they contained heroin. Testing established that the packages contained heroin mixed with caffeine. The total weight of pure heroin was 577.1 grams. The respondent pleaded guilty to one count of importing a marketable quantity of a border controlled drug, contrary to s 307.2(1) of the Criminal Code (Cth). Under the Criminal Code, a marketable quantity of heroin is between two grams and 1.5 kilograms. He was convicted in the County Court of Victoria and sentenced to eight years and six months' imprisonment with a non- parole period of six years. The respondent appealed to the Court of Appeal against his sentence. The Court of Appeal allowed the appeal and re-sentenced the respondent to six years' imprisonment with a non-parole period of four years. The presiding judge of appeal said that the appellant pleaded guilty in the reasonable expectation that he would be sentenced in accordance with current sentencing practices in Victorian courts. The judge considered that, having regard to a statistical analysis which plotted the correlation between past sentences for drug couriers and the weight of the drug imported, the sentence imposed was outside the range of available sentences indicated by current Victorian sentencing practices. The other members of the Court of Appeal also took into account the statistical analysis in finding that the sentence was manifestly excessive. By grant of special leave, the Commonwealth Director of Public Prosecutions appealed to the High Court. The High Court unanimously held that the need for sentencing consistency throughout Australia requires courts to have regard to sentencing practices across the country when sentencing federal offenders. Further, the Court of Appeal's use of the statistical analysis erroneously treated the weight of the drug imported as the only variable affecting the seriousness of past offences for the purpose of determining current sentencing practices. The appeal was allowed and the matter remitted to the Court of Appeal for redetermination according to law. |
HIGH COURT OF AUSTRALIA 2 December 2015 FIREBIRD GLOBAL MASTER FUND II LTD v REPUBLIC OF NAURU & ANOR [2015] HCA 43 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales but, by a majority, varied the orders made by that Court. The Court of Appeal had dismissed an appeal against an order setting aside both the registration of a foreign judgment against the respondent ("Nauru") and a consequential garnishee order relating to certain bank accounts Nauru held in Australia. The appellant ("Firebird") was the holder of bonds guaranteed by Nauru. After the issuer of the bonds defaulted, Firebird obtained judgment in the Tokyo District Court for ¥1,300 million together with interest and costs ("the foreign judgment") against Nauru as guarantor, and subsequently obtained an order from the Supreme Court of New South Wales that the foreign judgment be registered under the Foreign Judgments Act 1991 (Cth). The summons for the order for registration was not served on Nauru. Firebird then obtained a garnishee order against the Australian bank in which the accounts of Nauru were kept. Nauru filed motions seeking to set aside the registration of the foreign judgment and the garnishee order, and the Supreme Court made those orders. Firebird appealed to the Court of Appeal. The Court of Appeal held that Nauru was entitled to the immunity from jurisdiction recognised in s 9 of the Foreign States Immunities Act 1985 (Cth) and that the exception in s 11(1) of that Act for "commercial transactions" did not apply to the proceedings for registration under the Foreign Judgments Act. The Court of Appeal rejected Firebird's argument that there was an inconsistency in the operation of the two statutes. The Court of Appeal also agreed with Nauru's contention that service of the summons for the order for registration should have been effected upon Nauru before the foreign judgment was registered. A majority of the Court of Appeal further held that the funds in the accounts of the Australian bank were immune from execution under the garnishee order by virtue of s 30 of the Foreign States Immunities Act, and that the exception for "commercial property" in s 32(1) did not apply. By grant of special leave, Firebird appealed to the High Court. In dismissing the appeal, the High Court unanimously held that the proceedings for registration of the foreign judgment under the Foreign Judgments Act were proceedings to which s 9 of the Foreign States Immunities Act applied so that Nauru was immune from the jurisdiction of Australian courts, subject to the exceptions for which the Foreign States Immunities Act provides. There was no inconsistency in the operation of the two statutes. The exception stated in s 11(1) of the Foreign States Immunities Act applied to the proceedings for the registration of the foreign judgment in this case because they concerned a commercial transaction; namely, the guarantee upon which the foreign judgment was based. Nauru therefore lost its immunity from jurisdiction. However, Nauru was immune from execution against the bank accounts held in Australia under the Foreign States Immunities Act because the purposes for which these accounts were in use, or for which the monies in them were set aside, were not commercial purposes. By a majority, the Court also held that there was no requirement that the summons for registration of the foreign judgment under the Foreign Judgments Act be served on Nauru before the foreign judgment was registered. |
HIGH COURT OF AUSTRALIA 3 November 2010 SELECTED SEEDS PTY LTD v QBEMM PTY LIMITED & ORS [2010] HCA 37 The High Court today held an insurer could not rely upon an exclusion clause in an insurance policy to deny liability to its insured, a seed merchant, sued by a grower in connection with the supply of seed contaminated with a weed. The appeal involved the purchase and sale of Jarra grass seed, a type of livestock fodder. The appellant, a seed merchant, bought and sold a batch of Jarra grass seed unaware that it was contaminated with seed of Summer grass, a weed. The seed was purchased, planted, harvested and on-sold several times. With each progressive harvest, the presence of Summer grass seed increased. Seed traceable to the contaminated batch sold by the appellant was purchased by Mr and Mrs Shrimp. The Shrimps planted the seed for fodder. By this time, the seed was almost entirely Summer grass seed and the Shrimps reaped only Summer grass. They brought proceedings to recover for the damage to their land, and the appellant was eventually joined as a party to the proceedings. The Shrimps' claim was settled and the appellant sought indemnity from its insurer, the respondents, in respect of its contribution to settlement and its costs. The indemnity request was refused. In the proceedings brought by the appellant in the Supreme Court of Queensland to enforce its insurance policy, the respondents relied upon an efficacy clause in the policy. The clause excluded liability caused or arising from the failure of any product to correctly fulfil its intended use or function and/or meet the level of performance, quality, fitness or durability warranted or represented by the appellant. The trial judge found for the appellant, concluding that liability for damages arose not from what the product failed to do but from the damage it caused to the Shrimps' property. On appeal, the Queensland Court of Appeal reversed the trial judge's decision, holding that the appellant's liability arose because the seed did not correctly fulfil its represented or warranted quality as Jarra grass seed or correctly fulfil its intended function of producing Jarra grass and seed. By special leave, the appellant appealed to the High Court. Today, the High Court overturned the Court of Appeal's decision. It held that the liability excluded by the efficacy clause was for property damage caused by or arising from a failure of a product to fulfil its use or function. The damage to the Shrimps' land did not arise out of the failure of the seeds that were sown to fulfil their intended use or function to produce Jarra grass and seed. Rather, the damage was caused by the introduction of Summer grass, a weed, to the land. The insurance policy held by the appellant with the respondents therefore covered the liability to the Shrimps. |
HIGH COURT OF AUSTRALIA 12 November 2004 HTW VALUERS (CENTRAL QLD) PTY LTD v ASTONLAND PTY LTD Damages of $406,194.60 for negligent real estate advice awarded to a couple who bought a shopping arcade were not excessive, the High Court of Australia held today. After moving to Mackay in central Queensland Lyn and John Foster decided to sell their Brisbane house and invest the proceeds and borrowings in commercial property with a better return. Astonland was the investment vehicle. Mrs Foster was the sole director of Astonland and she and her husband were the sole shareholders. Before buying Central Street Plaza, an arcade of eight shops in Sarina south of Mackay generating nearly $60,000 rent a year, the Fosters sought advice from Barry Deacon of HTW Valuers about the retail rental market in Sarina, including demand for tenancies and availability of tenants. Based on Mr Deacon’s advice that current rental levels were maintainable, Astonland entered a contract to buy the Plaza for $485,000 in April 1997 and completed the purchase in July. At this time the Beach Road Shopping Centre, a supermarket and 10 speciality shops, was under construction. It opened in mid-1998. Rentals for the Plaza collapsed from about March 1999, dropping to less than $16,000 a year later. Four shops had been vacant for up to 12 months, rent on another was heavily in arrears and rents on another two had fallen sharply. Astonland has been unable to sell the arcade. Astonland sued HTW Valuers in the Queensland Supreme Court. Justice Peter Dutney found the collapse in rentals was almost solely due to the opening of the Beach Road Shopping Centre. He found that Mr Deacon negligently failed to qualify his opinion by cautioning that the effect of the new shopping centre was uncertain. The duties breached were those created by the contract under which HTW was paid $250, by the law of tort in relation to negligent advice, and by section 52 of the Trade Practices Act in relation to misleading and deceptive conduct. In March 2000, Jeffrey Dodds, retained by Astonland, valued the Plaza at $130,000. Justice Dutney awarded Astonland $355,000, the difference between the price paid and the value it reached due to the effect of the Beach Road Shopping Centre, plus another $51,194.60, consisting of trading losses, additional purchase costs, refurbishments and interest. The Court of Appeal dismissed an appeal from HTW against the $355,000 component of the damages award. HTW appealed to the High Court, which held that in assessing damages courts are not limited to assessing the risk as at April 1997 but are entitled to take account of how those risks later evolved into certainties. The cause of the decline in the value of the Plaza was not independent, extrinsic, supervening or accidental but lay in circumstances crucial to the value of the Plaza when Astonland acquired it, that is, the impending opening of the Beach Road Shopping Centre. The Court held that the damages figure was appropriate in all the circumstances. It unanimously dismissed the appeal. |
HIGH COURT OF AUSTRALIA 16 November 2016 CASTLE v THE QUEEN; BUCCA v THE QUEEN [2016] HCA 46 Today the High Court unanimously allowed two appeals from the orders of the Court of Criminal Appeal of the Supreme Court of South Australia dismissing the appellants' appeals against conviction for the murder of Adrian McDonald. The prosecution case at trial was that Castle lured the deceased to a meeting at which he was fatally shot by Bucca. The appellants' case was that the shooter was a man named Gange, who had died prior to the trial. Bucca and Gange both entertained hostility towards the deceased. Both had been looking for the deceased in the hours before the killing. The prosecution relied on the evidence of Gange's partner, M, to establish the agreement between the appellants to lure the deceased to the meeting and to prove that Gange had been at home with M at the time of the shooting. The prosecution also relied on the evidence of Pascoe that after the shooting she had heard Bucca say to her father: "he didn't mean to do it". Pascoe's evidence was left for the jury's consideration as capable of constituting an admission by Bucca that he was the shooter. The appellants appealed against their convictions to the Court of Criminal Appeal. The Court of Criminal Appeal found that Pascoe's answers in cross-examination and in re-examination unequivocally established that Bucca had been referring to a third person in his statement to her father. The Court said that the evidence was incapable of being viewed as an admission; its only effect was exculpatory and the trial judge erred in failing to so direct the jury. Nonetheless, the Court of Criminal Appeal dismissed the appeals, holding that the error had not occasioned a substantial miscarriage of justice. The Court of Criminal Appeal considered that the other evidence "overwhelmed" the "admission", which was a minor part of the evidence and unlikely to have had any influence on the verdicts. The Court of Criminal Appeal was satisfied that the appellants' guilt had been proved beyond reasonable doubt. By grant of special leave, the appellants appealed to the High Court. The High Court held that the question the Court of Criminal Appeal should have asked itself was not whether the circumstantial case against the appellants overwhelmed the weight of the "admission", which properly understood was an exculpatory statement, but whether the jury might regard the statement as itself a sufficient basis to entertain a doubt as to the strength of the circumstantial case. The Court of Criminal Appeal's conclusion that guilt had been proved beyond a reasonable doubt relied on acceptance of M's disputed oral evidence. The natural limitations of an appellate court proceeding on the record of the trial precluded that conclusion. Accordingly, there had been a substantial miscarriage of justice. The appellants' convictions were quashed and new trials ordered. |
HIGH COURT OF AUSTRALIA 27 February 2013 ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v CORPORATION OF THE CITY OF ADELAIDE & ORS [2013] HCA 3 Today a majority of the High Court allowed an appeal against a decision of the Full Court of the Supreme Court of South Australia, which had held that a by-law made by the Corporation of the City of Adelaide ("the Council") infringed the implied constitutional freedom of communication on government and political matters. Certain provisions of the by-law prohibited persons from preaching or distributing printed matter on any road to any bystander or passer-by without permission ("the impugned provisions"). The second and third respondents, Caleb and Samuel Corneloup ("the Corneloups"), were members of an association, "Street Church". They wished to preach in the streets of the City of Adelaide. The Corneloups each commenced proceedings in the District Court of South Australia, seeking a declaration that the impugned provisions were invalid. The District Court declared that parts of the impugned provisions exceeded the by-law making powers conferred on the Council by the Local Government Act 1934 (SA) and the Local Government Act 1999 (SA) ("the Local Government Acts"). The Full Court dismissed an appeal from the District Court's decision. Although the Full Court held that the impugned provisions were not invalid for want of compliance with the Local Government Acts, the Full Court held that they infringed the implied constitutional freedom of communication on government and political matters and were therefore invalid. By grant of special leave, the Attorney-General for South Australia (who was a party to the appeal in the Full Court) appealed to the High Court. A majority of the High Court held that the Local Government Acts empowered the Council to make the impugned provisions. The impugned provisions were a valid exercise of the Council's statutory power to make by-laws for the good rule and government of the area, and for the convenience, comfort and safety of its inhabitants. The majority also rejected the contention that the impugned provisions were constitutionally invalid. Although the impugned provisions effectively burdened political communication, they did not infringe the implied constitutional freedom. The impugned provisions served a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. |
HIGH COURT OF AUSTRALIA 3 February 2005 JAMIL YOUSEF KAMLEH v THE QUEEN The High Court of Australia today dismissed an appeal by Mr Kamleh who claimed evidence was wrongly admitted in his trial for a double murder. Mr Kamleh, 28, was convicted of murdering 16-year-old prostitute Rhiannon Ellul and her pimp Faraz Rhasti, 22, who were shot dead in their apartment in North Adelaide in April 2000. The South Australian Supreme Court sentenced him to life imprisonment with a non-parole period of 27 years. Co-offender Natale Attilio Zappia, 27, was tried separately and convicted of two counts of manslaughter. Neither man gave evidence at Mr Kamleh’s trial, but out-of-court statements by Mr Zappia were admitted as evidence. Both the Supreme Court and the Court of Criminal Appeal held that these were relevant and admissible, not for hearsay purposes but for other purposes. Mr Kamleh appealed to the High Court on grounds that two conversations between Mr Zappia and Sebastian Kamil Simoniuk and statements Mr Zappia made to police were inadmissible. Mr Simoniuk said Mr Zappia told him about the shootings and mentioned he had turned up the television volume. When cleaners found the bodies the television set was on at full volume. Information about the loud volume was not public so was likely to be known only by someone who had been present at the shootings. The High Court held that such evidence did not contravene the hearsay rule, as the evidence was not tendered to prove the truth of what Mr Zappia said, that the television set had been turned up. Instead the statement disclosed a state of knowledge on Mr Zappia’s part which tended to prove he was at the apartment at the time of the killings. Because of other evidence showing that Mr Kamleh and Mr Zappia were together, that was a relevant fact. Mr Zappia’s police record of interview was tendered, not to establish the truth of what he said, but to show that Mr Zappia and Mr Kamleh had concocted a false alibi that they were at a nightclub at the time of the shootings. In fact, they did not arrive at the nightclub until several hours later. The Court held that this evidence was not led for a hearsay purpose but to prove that, acting in concert with Mr Kamleh, Mr Zappia made knowingly false statements out of a consciousness of guilt. Ten days before the killings, in a car outside a McDonald’s restaurant while Mr Kamleh was inside, Mr Zappia allegedly told Mr Simoniuk that he and Mr Kamleh planned to catch up with Mr Rasti. The Court of Criminal Appeal held that this was admissible as evidence of Mr Zappia’s intention, which was significant because he and Mr Kamleh were together when the murders occurred. In the High Court, three Justices held that even if there were error by the Supreme Court and Court of Criminal Appeal in relation to that part of the suspect evidence, other evidence against Mr Kamleh was so overwhelming that no substantial miscarriage of justice occurred and the McDonald’s conversation was of minor significance. The mass of evidence included a confession to prison informer Michael Francis Loader, ample material suggesting Mr Kamleh and Mr Zappia were together at all relevant times on the night of the murders, and strong circumstantial evidence including identification evidence, fingerprint and DNA evidence, conduct indicating a consciousness of guilt, Mr Zappia’s mention of the loud television, and the disappearance of a mobile phone that Mr Kamleh had lent to Mr Rasti. The Court unanimously dismissed the appeal. |
HIGH COURT OF AUSTRALIA 23 October 2007 Public Information Officer MICHAEL JOHN CARR v THE STATE OF WESTERN AUSTRALIA Under Western Australian law, the recording of admissions by surveillance cameras in a police lock-up was admissible as a videotaped police interview, the High Court of Australia held today. Mr Carr was convicted in 2004 in the WA Supreme Court of the armed robbery of the South Perth branch of the Commonwealth Bank the previous year and sentenced to six years’ jail without parole. When arrested in 2003, he took part in a videotaped interview with police at Kensington police station but did not make any substantial admissions. Mr Carr was then taken to the station lock-up where police made entries into databases, returned his property and took DNA samples. He had not been charged in relation to the Commonwealth Bank robbery but was to be returned to prison for violating his parole relating to an earlier conviction. While police carried out their various tasks, Mr Carr made suggestions indicating his involvement in the bank robbery and the officers responded by asking questions, eliciting further information and admissions. As the lock- up had fixed surveillance cameras and microphones, the admissions were recorded. An edited version of the video was admitted into evidence and shown to the jury at the trial. Mr Carr was unaware of the cameras and microphones and claimed the admissions were untrue. In 2006, the WA Court of Appeal dismissed an application for an extension of time to apply for leave to appeal against conviction and sentence. Mr Carr then appealed to the High Court. He argued that section 570D(2) of the Criminal Code barred the receipt of the tape into evidence and that his conviction should be quashed and an acquittal entered. Section 570D(2) provides that when a person is tried for a serious offence, evidence of any admission by the accused shall not be admissible without a videotaped recording of the admission, unless there is a reasonable excuse for there not being a recording, or there are exceptional circumstances which in the interests of justice justify the admission of the evidence. Mr Carr contended that “interview” in section 570(1) of the Code required a degree of formality lacking in the lock-up conversation and that his consent was required for it to be recorded. The State submitted that “interview” encompassed an informal conversation and, in any event, if formality were required, the lock-up conversation had the appropriate degree of formality. It argued that there was no implied requirement for consent before a videotape could be admitted into evidence. It also argued that even if Mr Carr was correct about the meaning of “videotape” and “interview”, his admissions were properly admitted as there were “exceptional circumstances”, within the meaning of section 570D(2)(c), which centred on the existence of an accurate videotape of Mr Carr’s voluntary admissions regarding a serious offence. The High Court, by a 4-1 majority, dismissed the appeal. It held that “interview” encompassed the conversation in the lock-up. Mr Carr’s appreciation that the conversation was being recorded and could be used in evidence against him was not required by the definitions of “interview”, “videotape” or “admission”, nor by the relevant chapter of the Code. No requirement for consent was implied in section 570D(2). Its express words did not require exclusion of the videotape and no reason had been shown why the videotape should be excluded on discretionary grounds. |
HIGH COURT OF AUSTRALIA Public Information Officer 3 September 2008 MACEDONIAN ORTHODOX COMMUNITY CHURCH ST PETKA INCORPORATED v HIS EMINENCE PETAR, THE DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIA AND NEW ZEALAND AND THE VERY REVEREND FATHER A church association holding property allegedly on trust for the church could use some of that property to defend itself in court proceedings, the High Court of Australia held today. His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand, and Father Mitko Mitrev, a former priest of the St Petka Parish in Rockdale in Sydney, instituted proceedings in the New South Wales Supreme Court in 1997 against the Macedonian Orthodox Community Church St Petka Incorporated (the Association), members of its executive committee, and the priest who replaced Father Mitrev. The Association was incorporated in 1992 and church land was transferred to it which the plaintiffs alleged was then held upon trust for the Macedonian Orthodox Church. As well as the Church and Church Hall, the Association owned five home units in Rockdale, a child-care centre at Arncliffe, funds held on deposit and objects of veneration. The Bishop and Father Mitrev (the plaintiffs) alleged the Association wrongly dismissed Father Mitrev, replaced him with an allegedly disqualified priest banned from performing clerical duties, used another allegedly disqualified priest to conduct services in breach of church law, dealt with church property without the Bishop’s authority, ceased to remit five per cent of Parish income to the Bishop, and used the property to fund legal proceedings. They alleged the Association had repudiated the trust. The trial, originally set down for 2004, is due to start in November of this year. The Association instituted separate proceedings to obtain judicial advice under section 63 of the NSW Trustee Act as to how it should conduct the main proceedings. Section 63 provided that a trustee may apply to the Supreme Court for direction on any question about administration of the trust property or about interpretation of the trust instrument. Following this direction protected the trustee from liability for breach of trust. Since 2004, Justice George Palmer has handed down four judgments in the judicial advice proceedings. In 2007 he ordered that the Association could access property acquired before 1992 to pay its costs of defending the main proceedings of $78,666 between 2004 and 2007 and up to $216,295 for future costs. He found that the trust would benefit from the terms of the trust being resolved once and for all and disputes over administration of trust property being ended. The Court of Appeal allowed the plaintiffs’ appeal and dismissed the Association’s summons seeking judicial advice. It held that Justice Palmer erred in exercising his discretion to give judicial advice by failing to take account of material considerations and by an error of law. The material considerations were failure to consider the adversarial character of the proceedings, which generally made the giving of judicial advice inappropriate, and failure to take into account a possible reduction of the trust fund in covering the plaintiffs’ costs as well as the Association’s costs. The error of law was an order that other orders could later be revoked which would operate retrospectively. The Association appealed to the High Court. The Court of Appeal also refused the plaintiffs’ applications for leave to appeal against judicial advice given by Justice Palmer in 2004 and 2005. The plaintiffs sought special leave to cross-appeal against that refusal. The High Court unanimously allowed the appeal, restored Justice Palmer’s orders and refused the plaintiffs’ special leave application. It held that nothing in section 63 precluded the Supreme Court from giving the advice sought by the Association. Provided there was a question about the administration of trust property or the interpretation of a trust instrument – and both kinds of question were present here – nothing in section 63 limited the application to “non-adversarial” proceedings. The Court held that classification of proceedings as “adversarial proceedings” was not useful in deciding whether advice should be given under section 63. Obtaining judicial advice resolved doubt about whether it was proper for a trustee to incur the costs of litigation, which meant that the trust’s interests would be protected. The High Court held that the necessary consequence of section 63 was that a trustee who was sued should take no step in defence of the suit without first obtaining judicial advice about whether to defend the proceedings. It held that Justice Palmer did not seek to settle any disputes, as he only advised the Association that it would be justified in defending the main proceedings and that it could have recourse to certain property to pay the costs of that defence. If individual defendants were found to have participated in grave breaches of the trust they could be exposed to personal liability for the costs of proceedings to remedy the breaches, including the plaintiffs’ costs. Justice Palmer was not shown to have erred by failing to have regard to the effect on the trust property of advising the Association that it could properly defend the main proceedings and that it could resort to trust property to do so, provided fraud, wilful concealment or misrepresentation were absent. The Court held that Justice Palmer’s order allowing for revocation of his orders only did so with respect to future operation. |
HIGH COURT OF AUSTRALIA 11 March 2015 CMB v ATTORNEY GENERAL FOR NEW SOUTH WALES [2015] HCA 9 Today the High Court unanimously allowed an appeal against a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales ("the CCA") that imposed a sentence of imprisonment on the appellant, and remitted the matter to be re-determined by the CCA. In 2011, following disclosures by the victim, the appellant was charged with sexual offences against his daughter, who was under the age of 16 at the time of the incidents. In accordance with the provisions of a regulation made under the Pre-Trial Diversion of Offenders Act 1985 (NSW), the appellant was referred to a treatment program administered by the Department of Health known as the Cedar Cottage Program ("the Program"). As part of his assessment for entry into the Program, the appellant was encouraged to make additional disclosures as a sign of a positive commitment to change. The appellant admitted to further sexual offences against his daughter, committed over the same period as the earlier charges, but of which his daughter had no memory. The repeal of the relevant regulation before these disclosures meant that these further offences could not be dealt with as part of the Program. The appellant was charged and, following his guilty plea, was sentenced in relation to these further offences. The District Court of New South Wales deferred sentence upon the appellant entering good behaviour bonds conditioned on completion of the Program. The Director of Public Prosecutions supported the imposition of non-custodial sentences in the unusual circumstances. The Director of Public Prosecutions publicly announced his decision not to appeal against the sentences in light of the "unique history" of the matter. Subsequently, the Attorney General for New South Wales appealed to the CCA against the inadequacy of the sentences. The CCA allowed the appeal and re-sentenced the appellant to an aggregate sentence of five years and six months' imprisonment with a non-parole period of three years. By grant of special leave, the appellant then appealed to the High Court. The appeal was limited to two grounds: first, that the CCA erred by placing the onus on the appellant to demonstrate that the prosecution appeal should be dismissed; second, that the CCA erred in its application of the law concerning the leniency that may be extended in the case of a guilty plea resulting from an offender's voluntary disclosure of otherwise unknown guilt of an offence. In relation to the first ground, the High Court unanimously allowed the appellant's appeal. The Court held that before the CCA can allow an appeal by the prosecution against sentence, the prosecution must demonstrate both an appellable error in the sentencing judge's discretionary decision and negate any reason why the residual discretion of the CCA not to interfere should be exercised. The High Court allowed the appeal on the second ground by majority, holding that the CCA failed to consider whether it had been open to the District Court to determine that non- custodial sentences were not unreasonably disproportionate to the nature and circumstances of the offences. |
HIGH COURT OF AUSTRALIA 4 August 2021 DEPUTY COMMISSIONER OF TAXATION v ZU NENG SHI [2021] HCA 22 Today, the High Court allowed an appeal from a decision of the Full Court of the Federal Court of Australia ("the Full Court") dismissing an appeal from a decision of the Federal Court refusing to make an order under s 128A(6) of the Evidence Act 1995 (Cth) that a privilege affidavit be filed ("the Commissioner"). and the Deputy Commissioner of Taxation served The Commissioner obtained orders in the Federal Court freezing the worldwide assets of the respondent ("Mr Shi"). Ancillary orders required Mr Shi to disclose matters relating to the assets ("the disclosure order"). Section 128A(2) provides that if a person subject to a disclosure order objects to complying with it on the grounds of the privilege against self-incrimination, the person must prepare an affidavit containing the information to which the objection is taken ("privilege affidavit"). If the court is satisfied that there are reasonable grounds for the objection, s 128A(5) provides that the court must not require the information in the privilege affidavit to be disclosed, subject to an exception in s 128A(6). Under s 128A(6) the court may order that the privilege affidavit, in whole or in part, be disclosed if satisfied that, (a) any information in it may tend to prove that the person has committed an offence against or arising under an Australian law; and (b) the information does not tend to prove that the person has committed an offence against or arising under, a law of a foreign country; and (c) the interests of justice require the information to be disclosed. Mr Shi objected to complying with part of the disclosure order on the grounds of self- incrimination. The primary judge was satisfied that there were reasonable grounds for the objection and was also satisfied of the matters in s 128A(6)(a) and (b) but held that because there were other means by which the Commissioner could obtain the information in the privilege affidavit, the interests of justice did not require it to be disclosed. On appeal, the Full Court, by majority, upheld the primary judge's holding that the interests of justice did not require disclosure, taking into account other available ways that the information could be obtained. The High Court, by majority, allowed the appeal. The Court held that the Full Court and the primary judge took an irrelevant consideration into account in failing to be satisfied that the interests of justice required disclosure of the information in the privilege affidavit. The inquiry mandated by s 128A(6)(c) proceeds on the premise that, as part of or in connection with an extant freezing or search order in a civil proceeding, there is an extant disclosure order operating to require provision of the information. No part of the inquiry is to question whether information required to be provided in compliance with that extant disclosure order would more appropriately be obtained through some other compulsory process. |
HIGH COURT OF AUSTRALIA 8 September 2011 MOMCILOVIC v THE QUEEN & ORS [2011] HCA 34 Today the High Court allowed an appeal by Ms Vera Momcilovic against her conviction for drug trafficking contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) ("the Drugs Act"), but held that s 71AC is not invalid under s 109 of the Constitution for inconsistency with the trafficking offence provision of the Criminal Code (Cth). In 2008, Ms Momcilovic was convicted, following trial by jury in the County Court of Victoria, of trafficking in methylamphetamine contrary to s 71AC of the Drugs Act. The prosecution case was that drugs were found in an apartment that Ms Momcilovic owned and lived in. However, Ms Momcilovic lived in the apartment with her partner, Mr Velimir Markovski, who had been convicted in a separate trial of trafficking in methylamphetamine and cocaine. At her trial, Ms Momcilovic and Mr Markovski gave evidence that she had no knowledge of the presence of drugs in the apartment. In order to establish possession of the drugs by Ms Momcilovic, the prosecution relied upon s 5 of the Drugs Act, which provided that "any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him … unless the person satisfies the court to the contrary". The jury was directed that, once it was proved that Ms Momcilovic was in occupation of the apartment, she was deemed to be in possession of the drugs unless she satisfied the jury that she did not know of their presence. On appeal to the Court of Appeal of the Supreme Court of Victoria, Ms Momcilovic submitted that on its ordinary construction or, alternatively, pursuant to the interpretive rule created by s 32(1) of the Charter, s 5 of the Drugs Act did not impose on her any onus of proof. Alternatively, she submitted that the provision should be interpreted as imposing an evidential onus rather than a legal onus. Section 32(1) of the Charter provides that "[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights". The Court of Appeal refused Ms Momcilovic leave to appeal against her conviction. The Court of Appeal also made a declaration of inconsistent interpretation pursuant to s 36(2) of the Charter, on the basis that s 5 of the Drugs Act could not "be interpreted consistently with the presumption of innocence under s 25(1) of the Charter". On appeal to the High Court, Ms Momcilovic raised several issues of constitutional importance in seeking to have her conviction quashed, including: the validity of the Charter, in particular s 32(1) which conferred a statutory interpretation function upon courts, and s 36 which conferred on the Supreme Court the power to make a declaration of inconsistent interpretation where the Court was of the opinion that a statutory provision could not be interpreted consistently with a human right; whether the offence of trafficking contrary to s 71AC of the Drugs Act is invalid under s 109 of the Constitution for inconsistency with the offence of trafficking contrary to s 302.4 of the Criminal Code (Cth); the construction of s 71AC of the Drugs Act, and whether s 5 is applicable to the offence. The High Court, by majority, allowed Ms Momcilovic's appeal against her conviction. French CJ, Gummow, Hayne, Crennan and Kiefel JJ held that s 5 did not apply to the offence of trafficking contrary to s 71AC of the Drugs Act. Their Honours held that, as a result, Ms Momcilovic's trial had miscarried because the jury had been misdirected. Bell J held that s 5 did apply to s 71AC, but nevertheless that the jury had been misdirected. Further, French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ held that s 71AC of the Drugs Act was not invalid for inconsistency with the trafficking offence provision of the Criminal Code (Cth). The Court quashed Ms Momcilovic's conviction, set aside her sentence, and ordered that a new trial be had. In relation to the validity of the Charter, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that s 32(1) operated as a valid rule of statutory interpretation, which is a function that may be conferred upon courts. With respect to the declaration of inconsistent interpretation made by the Court of Appeal, French CJ and Bell J held that s 36 of the Charter was valid but that there could be no appeal to the High Court from a declaration made under that section. Crennan and Kiefel JJ held that s 36 of the Charter was valid but that a declaration of inconsistent interpretation should not have been made by the Court of Appeal in this proceeding. Gummow, Hayne and Heydon JJ held that s 36 was invalid for impermissibly impairing the institutional integrity of the Supreme Court. As a majority of the Court was of the view that the declaration of inconsistent interpretation made pursuant to s 36 either was invalid or ought not to have been made by the Court of Appeal in this proceeding, the Court ordered that the declaration be set aside. The Attorney-General for Victoria was ordered to pay two-thirds of Ms Momcilovic's costs. |
HIGH COURT OF AUSTRALIA 5 October 2011 QUEANBEYAN CITY COUNCIL v ACTEW CORPORATION LTD & ANOR QUEANBEYAN CITY COUNCIL v ACTEW CORPORATION LTD & ANOR [2011] HCA 40 Today the High Court dismissed an appeal by the Queanbeyan City Council ("Queanbeyan") against a decision of the Full Court of the Federal Court of Australia, which held that water licence fees and a utilities network tax imposed by the Australian Capital Territory ("the Territory") upon ACTEW Corporation Ltd ("ACTEW"), and passed on to Queanbeyan, were not contrary to s 90 of the Constitution. Under s 90 of the Constitution, the power of the Commonwealth Parliament to impose duties of excise is exclusive. Under power conferred upon it by s 24 of the Local Government Act 1993 (NSW), Queanbeyan provides goods, services and facilities to the City of Queanbeyan. Queanbeyan obtains water supplies from ACTEW which holds a licence to take water from certain areas under the control of the Territory under the Water Resources Act 2007 (ACT). ACTEW previously held a similar licence under the Water Resources Act 1998 (ACT). ACTEW charges Queanbeyan for supplying water to residents and businesses within the City of Queanbeyan. The charge includes costs imposed on ACTEW under Territory legislation. Pursuant to determinations under the Water Acts, ACTEW was required to pay fees for extracting water from Territory catchments calculated by reference to the amount of water extracted. The determinations increased the water licence fees from 10 cents per kilolitre to 55 cents per kilolitre. From 1 January 2007, the Territory also required ACTEW to pay a charge imposed by reference to the route length of the infrastructure network for the supply and delivery of water to its customers under the Utilities (Network Facilities Tax) Act 2006 (ACT). ACTEW was a Territory-owned Corporation within the meaning of the Territory-owned Corporations Act 1990 (ACT). Amongst other things, that Act required the shares in ACTEW to be held on trust for the Territory, gave the Territory's executive control over ACTEW's corporate decision-making and regulated its borrowing. Queanbeyan brought proceedings in the Federal Court of Australia alleging that the Territory had invalidly imposed on ACTEW duties of excise, namely, the water licence fees and the utilities network tax, within the meaning of s 90 of the Constitution, and that these charges were therefore wrongly passed on by ACTEW to Queanbeyan. The primary judge and the majority of the Full Court held that the water licence fees were not taxes. The primary judge also held that the utilities network tax was a duty of excise and therefore invalid. The Full Court disagreed and held that the utilities network tax was not a duty of excise. Queanbeyan appealed, by special leave, to the High Court of Australia. By a notice of contention, ACTEW contended that the water licence fees and utilities network tax were merely internal financial arrangements between ACTEW and the Territory and therefore could not be duties of excise. The High Court held that the provisions of the Territory-owned Corporations Act indicated that the executive government of the Territory exercised extensive control over the conduct of the affairs of ACTEW. ACTEW was so closely identified with the Territory that it was not distinct from the polity itself. The water licence fees and the utilities network tax, being imposed upon a Territory agency, were merely internal financial arrangements; they could not be "taxes" and thus could not amount to "duties of excise" within the meaning of s 90 of the Constitution. |
HIGH COURT OF AUSTRALIA 6 February 2019 WORK HEALTH AUTHORITY v OUTBACK BALLOONING PTY LTD & ANOR [2019] HCA 2 Today the High Court, by majority, allowed an appeal from the Court of Appeal of the Supreme Court of the Northern Territory. The majority held that ss 19 and 32 of the Work Health and Safety (National Uniform Legislation) Act (NT) ("the NT WHS Act") are not inconsistent with a body of Commonwealth civil aviation laws ("the Commonwealth civil aviation law") which includes the Civil Aviation Act 1988 (Cth) ("the CA Act"). Outback Ballooning Pty Ltd ("Outback Ballooning") operates a business in Alice Springs which provides rides in hot air balloons. In July 2013, an incident occurred during embarkation of one of the hot air balloons which resulted in the death of an intended passenger. The Work Health Authority ("the WHA") filed a complaint against Outback Ballooning under s 32 of the NT WHS Act, in which it was alleged that Outback Ballooning failed to comply with the duty imposed on it by s 19(2) of that Act to ensure, so far as is reasonably practicable, that the health and safety of persons was not put at risk from work carried out as part of the conduct of its business. The WHA's complaint was particularised as a failure to eliminate or minimise risks to embarking passengers that arose from the use of a fan to inflate the hot air balloon. The complaint was dismissed by the Northern Territory Court of Summary Jurisdiction as invalid on the basis that the subject matter of the complaint was within the field covered by the Commonwealth regulatory scheme with respect to aviation. The WHA sought an order in the nature of certiorari in the Supreme Court of the Northern Territory, which was granted on the basis that embarkation procedure, the subject of the complaint, is not so closely connected with safety in flight as to be exclusively regulated by the Commonwealth civil aviation law. The Court of Appeal allowed an appeal against that decision on the basis that the Commonwealth civil aviation law was a complete statement of the relevant law, which extended to the embarkation of passengers. By grant of special leave, the WHA appealed to the High Court. By majority, the High Court held that, as a matter of construction, the NT WHS Act is not inconsistent with the Commonwealth civil aviation law. The CA Act in relevant respects is designed to operate within the framework of other State, Territory and Commonwealth laws. The NT WHS Act is one such law. The CA Act does not contain an implicit negative proposition that it is to be the only law with respect to the safety of persons who might be affected by operations associated with aircraft, including embarkation of passengers. |
HIGH COURT OF AUSTRALIA 17 May 2006 STATE OF QUEENSLAND v PETER ROBERT STEPHENSON SCOTT WILLIAM REEMAN v STATE OF QUEENSLAND STATE OF QUEENSLAND v TIMOTHY JAMES WRIGHTSON Public Information Officer Three former police officers who wished to sue the State of Queensland after performing dangerous undercover work were all entitled to have the time in which they could bring action extended, the High Court of Australia held today. Mr Stephenson, Mr Reeman and Mr Wrightson all worked in covert drug investigations, which put them in life-threatening situations. All claim that after returning to ordinary duties they developed psychiatric conditions and could no longer cope with police work. The police service provided for retirement on medical grounds, which is more financially advantageous than resigning. However, by the time the steps for retirement on medical grounds were completed in 2001, more than three years had elapsed. After the expiry of the three-year limitation period fixed by section 11 of the Limitation of Actions Act, they instituted proceedings in the Supreme Court. Each sued the State in negligence for damages for personal injury. The State pleaded the time bar in each case and applied for summary judgment. Each man applied for an extension of time under section 31 of the Limitation Act. Section 31(2) provides that, where a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date (“the relevant date”) during the last year of the limitation period, the court may extend the limitation period so it expires one year after that date. In the case of Mr Stephenson, he began suffering severe depression in mid-1997, so the limitation period fixed by section 11 expired by mid-2000. He retired on medical grounds on 23 February 2001 and instituted an action in the Supreme Court on 20 December 2001. When the State pleaded the time bar, Mr Stephenson applied under section 31 for a backdated extension to 20 December 2001. He thus had to show that a material fact of a decisive character relating to the right of action was not within his means of knowledge before the relevant date of 20 December 2000. Mr Wrightson had the same relevant date while the relevant date for Mr Reeman was 22 July 2001. The Supreme Court dismissed applications for extensions of time by Mr Stephenson and Mr Reeman but granted Mr Wrightson’s application. The Court of Appeal allowed Mr Stephenson’s appeal, dismissed Mr Reeman’s appeal and upheld the trial judge’s decision in relation to Mr Wrightson. The State appealed to the High Court in relation to Mr Stephenson, and applied for special leave to appeal in relation to Mr Wrightson, with the application argued as on appeal. Mr Reeman also appealed. The police officers all succeeded, with the High Court, by a 4-1 majority, dismissing the State’s appeal and special leave application and allowing Mr Reeman’s appeal. The Court held that the fact that a material fact was within the means of knowledge of the applicant before the relevant date is insufficient of itself to block recourse to section 31(2). To prevent a successful extension application, the material fact must have a decisive character. Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. Since the Supreme Court had found in each case that it was not until the applications for retirement on medical grounds had been granted that the requirements of a material fact of a decisive character had been satisfied, the High Court held that section 31(2) had been satisfied. |
HIGH COURT OF AUSTRALIA 10 December 2014 COMMISSIONER OF STATE REVENUE v LEND LEASE DEVELOPMENT PTY LTD COMMISSIONER OF STATE REVENUE v LEND LEASE IMT 2 (HP) PTY LTD COMMISSIONER OF STATE REVENUE v LEND LEASE REAL ESTATE INVESTMENTS LIMITED [2014] HCA 51 Today the High Court unanimously allowed appeals from a decision of the Court of Appeal of the Supreme Court of Victoria and held that the Commissioner of State Revenue was entitled to assess duty to be charged on transfers of land in the Docklands area of Melbourne by reference not only to payments made under specified land sale contracts but also to payments made under a "development agreement" which, together with the land sale contracts, formed a single, integrated and indivisible transaction for the sale and development of the Docklands area. In 2001, the Victorian Urban Development Authority ("VicUrban") and one of the Lend Lease respondents (together "Lend Lease") made an agreement for the development of the Docklands area. It was agreed that Lend Lease would buy parcels of land in Docklands from VicUrban and that Lend Lease would design, construct and then sell large residential and commercial buildings on that land. It was also agreed that each of VicUrban and Lend Lease would build various forms of infrastructure on and around the land, including a road extension, bridge and park. Each transfer of land was to be made pursuant to a land sale contract. But the development agreement also required Lend Lease to pay to VicUrban not only the amounts payable under each land sale contract but also certain additional amounts, including payments for infrastructure and for remediation of areas on and around the land and a share of gross proceeds received by Lend Lease on sale. Under the Duties Act 2000 (Vic), the transfers of land were subject to duty payable by Lend Lease. The Commissioner assessed duty according to the consideration for each transfer of land, which it determined to be the total of the sums payable by Lend Lease to VicUrban under the development agreement. Lend Lease objected to the assessments, claiming that the consideration for each transfer was the payment of the amount specified only in the land sale contract. After the Commissioner disallowed the objections, Lend Lease requested that each be treated as an appeal to the Supreme Court of Victoria. Those appeals were dismissed by a single judge of the Supreme Court but were allowed on further appeals to the Court of Appeal. By special leave, the Commissioner appealed to the High Court. The High Court unanimously allowed the appeals. The Court held that the transaction recorded in the development agreement made between VicUrban and Lend Lease was a single, integrated and indivisible transaction. The Court held that the consideration for the transfer of land was the performance by Lend Lease of the several promises of payments under the development agreement, and that the Commissioner was right to include those amounts in the assessments. |
HIGH COURT OF AUSTRALIA 13 August 2020 MONDELEZ AUSTRALIA PTY LTD v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS UNION (AMWU) & ORS; MINISTER FOR JOBS AND INDUSTRIAL RELATIONS v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS UNION (AMWU) & ORS [2020] HCA 29 Today the High Court allowed an appeal from a judgment of the Full Court of the Federal Court of Australia ("Full Federal Court") concerning how the entitlement to paid personal/carer's leave is calculated under s 96(1) of the Fair Work Act 2009 (Cth). Section 96(1) says that "[f]or each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer's leave". Section 96(2) says that an employee's entitlement to this leave "accrues progressively during a year of service according to the employee's ordinary hours of work, and accumulates from year to year". Under s 99, payment for leave taken is calculated by reference to an employee's "ordinary hours of work". Section 55(4) says that an enterprise agreement may only include terms not detrimental to an employee when compared to certain provisions of the Fair Work Act including s 96. Mondelez Australia Pty Ltd ("Mondelez") employs Ms Triffitt and Mr McCormack. Under their enterprise bargaining agreement, Ms Triffitt and Mr McCormack each work, on average, 36 ordinary hours of work per week. They work an average of three 12-hour shifts per week. Mondelez credits Ms Triffitt and Mr McCormack with 96 hours of paid personal/carer's leave per year of service. When they take paid personal/carer's leave for one 12-hour shift, Mondelez deducts 12 hours from their accrued leave balance. Over the course of one year of service, Ms Triffitt and Mr McCormack accrue paid personal/carer's leave sufficient to cover eight 12-hour shifts. Ms Triffitt and Mr McCormack (together with the Australian Manufacturing Workers Union) argued that s 96(1) entitles them to paid personal/carer's leave sufficient to cover ten absences from work per year. That argument was accepted by a majority of the Full Federal Court which held that "day" in s 96(1) refers to "the portion of a 24 hour period that would otherwise be allotted to work" ("the 'working day' construction"). A majority of the High Court rejected the "working day" construction and instead held that what is meant by a "day" or "10 days" must be calculated by reference to an employee's ordinary hours of work. "10 days" in s 96(1) is two standard five-day working weeks. One "day" refers to a "notional day" consisting of one-tenth of the equivalent of an employee's ordinary hours of work in a two-week period. Because patterns of work do not always follow two-week cycles, the entitlement to "10 days" of paid personal/carer's leave can be calculated as 1/26 of an employee's ordinary hours of work in a year. |
HIGH COURT OF AUSTRALIA 29 September 2005 ROBYN VANESSA LAYBUTT v GLOVER GIBBS PTY LIMITED trading as BALFOURS NSW PTY LIMITED An employer was held to have negligently caused a worker’s injury after rejecting her request for instructions on how to reassemble a doughnut machine, the High Court of Australia held today. Ms Laybutt was a 30-year-old pastry cook who had been was employed by Glover Gibbs for about six weeks in its Sydney factory when her team leader asked her to reassemble the machine after washing. She told him that she did not know how to do it and he responded “just give it a go”. Ms Laybutt was not given supervision, gloves, an instruction manual or a practical demonstration. Part of the machine consisted of five cylinders into which smaller cylinders were fitted. These were held together by a U-shaped piece with protruding lugs which had to slot into grooves on the outer cylinder. The larger outer cylinder had sharp edges and the cylinders were slippery after being washed. As Ms Laybutt attempted to join a pair of cylinders the outer one slipped and sliced her right little finger. This injury also affected her arm. On later occasions she was able to reassemble the machine without mishap. Ms Laybutt sued her employer in negligence in the New South Wales District Court. She alleged Glover Gibbs was negligent in failing to implement a safe system of work, to provide adequate instructions and training, to supervise her properly, to dry the parts to be reassembled, to heed her warnings that she was unskilled in the task, to provide manufacturer’s instructions for the safe cleaning and assembly, and to provide protective gloves. Glover Gibbs pleaded contributory negligence by Ms Laybutt as she failed to carry out her duties as instructed, to carry out her duties safely, to have proper regard for her own safety, and to wear gloves as instructed. However at the hearing her account was substantially unchallenged and the defence was her ineptness in not holding the cylinder tightly enough. Glover Gibbs’s production manager criticised the direction to “just give it a go”. The jury found Glover Gibbs liable and rejected the claim of contributory negligence. Ms Laybutt was awarded damages of $471,000 plus costs. Glover Gibbs successfully appealed to the Court of Appeal which held that Ms Laybutt had not spelled out what instructions should have been given. She appealed to the High Court. The Court unanimously allowed the appeal and held there was sufficient evidence to go to the jury of a failure to give appropriate instructions. It was not necessary in this case to formulate a precise set of instructions that Glover Gibbs should have given when she sought them. The Court held that jurors use their knowledge and experience to contemplate what might reasonably be expected in a workplace and it was open to them to find Glover Gibbs negligent in failing to give instructions or warnings. |
HIGH COURT OF AUSTRALIA 21 December 2016 ELECNET (AUST) PTY LTD (AS TRUSTEE FOR THE ELECTRICAL INDUSTRY SEVERANCE SCHEME) v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA [2016] HCA 51 Today the High Court unanimously dismissed an appeal from the Full Court of the Federal Court of Australia. The High Court held that the Electrical Industry Severance Scheme ("the EISS") is not a unit trust within the meaning of Div 6C of Pt III of the Income Tax Assessment Act 1936 (Cth) ("the ITAA"). The appellant ("ElecNet") was the trustee of the EISS pursuant to a trust settled by deed. Under the EISS, employers within the electrical contracting industry could become members of the scheme and, upon doing so, became obliged to make payments to ElecNet. These payments were credited by ElecNet to accounts in the name of each of the employees in respect of whom a payment was made. The deed contemplated that, at such time as an employee's employment was terminated, ElecNet was to make a severance or redundancy payment to that employee. ElecNet requested a private ruling from the respondent ("the Commissioner") as to whether the EISS was a public trading trust for the purposes of Div 6C. The Commissioner ruled that the EISS was not a public trading trust, on the ground, among others, that the EISS was not a unit trust within the meaning of Div 6C. ElecNet's objection to the ruling was disallowed in full by the Commissioner. ElecNet appealed to the Federal Court of Australia. At first instance, the Court allowed the appeal, holding that the EISS was a unit trust for the purposes of Div 6C. The Commissioner appealed to the Full Court of the Federal Court of Australia. The Full Court unanimously allowed the Commissioner's appeal, holding that the EISS was not a unit trust for the purposes of Div 6C. By grant of special leave, ElecNet appealed to the High Court. The Court held that the EISS was not a unit trust for the purposes of Div 6C because any interest created by the deed in favour of employees could not be characterised as a "unit". The Court also held that the meaning of "unit trust" in Div 6C accorded with the common usage of the expression "unit trust"; that is, a trust whereby the beneficial interest in the trust estate is divided into units as discrete parcels of rights, analogous to shares, which, when created or issued, are to be held by the persons for whose benefit the trustee maintains and administers the trust estate. The inclusive definition of "unit" in Div 6C did not expand the meaning of "unit trust" for the purposes of that Division. |
HIGH COURT OF AUSTRALIA 8 March 2017 [2017] HCA 10 Today the High Court, by majority, dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of the Northern Territory. The High Court held that the apprehension of the appellant, Mr Prior, pursuant to s 128(1) of the Police Administration Act (NT) ("the PAA"), was not unlawful, because it was open for a court to find that the apprehending officer had reasonable grounds to believe Mr Prior was likely to commit an offence. Section 128(1) of the PAA, relevantly, allows a member of the Police Force of the Northern Territory to apprehend without warrant a person who the member has reasonable grounds for believing is intoxicated, is in a public place, and that, because of the person's intoxication, the person may intimidate, alarm or cause substantial annoyance to others, or is likely to commit an offence. Before his apprehension, Mr Prior was drinking liquor with two other men on a footpath in front of a set of shops, including two shops selling liquor. He was intoxicated. When a police car, driven by Constables Fuss and Blansjaar, drove by he made an offensive gesture and shouted abuse. The officers parked the car in front of the men and asked Mr Prior to speak to them. Mr Prior was belligerent and aggressive. Mr Prior was apprehended by Constable Blansjaar pursuant to s 128(1) of the PAA because Constable Blansjaar believed that, because of Mr Prior's intoxication, he might intimidate, alarm or cause substantial annoyance to people, and that it was likely he would commit the offence of drinking in a regulated place contrary to s 101U of the Liquor Act (NT) ("the Liquor Act offence"). After being taken into custody, Mr Prior engaged in conduct which led to him being charged with assaulting a police officer in the execution of duty and public indecency. He was convicted of those offences upon a trial in the Court of Summary Jurisdiction. That Court found Mr Prior had been lawfully apprehended pursuant to s 128(1) of the PAA. On appeal to the Supreme Court, Southwood J was satisfied beyond reasonable doubt that there were reasonable grounds for Constable Blansjaar's belief that, because of his intoxication, Mr Prior was likely to commit the Liquor Act offence. Mr Prior's convictions were, however, set aside by Southwood J, and subsequently restored by the Court of Appeal, on grounds not subject of appeal to the High Court. The Court of Appeal upheld Southwood J's conclusion that Constable Blansjaar had reasonable grounds for believing that it was likely Mr Prior would commit the Liquor Act offence. By grant of special leave, Mr Prior appealed to the High Court, arguing the Court of Appeal erred in holding Constable Blansjaar was entitled to rely on his policing experience in deciding that he had reasonable grounds for believing that Mr Prior would commit the Liquor Act offence. The High Court held, by majority, that the lack of precise particularisation of Constable Blansjaar's experience did not deprive the Court of Appeal of its capacity to assess the reasonableness of his belief. It was fair for the Court of Appeal to infer that Constable Blansjaar's belief about how Mr Prior was likely to behave was informed at least in part by Constable Blansjaar's experience in dealing with other intoxicated people, and it was open to hold that, based on Constable Blansjaar's experience, it was reasonable for him to believe that Mr Prior was likely to continue drinking liquor in a regulated place. The High Court also rejected a separate argument that the apprehension of Mr Prior exceeded the limits of the s 128(1) power. |
HIGH COURT OF AUSTRALIA 8 February 2013 COMMISSIONER OF POLICE v EATON & ANOR [2013] HCA 2 Today a majority of the High Court allowed an appeal brought by the appellant, the Commissioner of Police of New South Wales, against a decision of the Court of Appeal of the Supreme Court of New South Wales which held that the unfair dismissal regime in the Industrial Relations Act 1996 (NSW) ("the IR Act") applied to the dismissal of a probationary police officer under the Police Act 1990 (NSW). The first respondent, Mr Eaton, had applied to the Industrial Relations Commission of New South Wales ("the IR Commission") for a remedy under s 84(1) of the IR Act claiming his dismissal from the New South Wales Police Force was harsh, unreasonable or unjust. He had been employed as a probationary police officer but was dismissed by a delegate of the appellant under s 80(3) of the Police Act, which permits the dismissal of a probationary police officer at any time and without reason. The IR Commission held that the first respondent's dismissal was harsh and unreasonable and unjust, and the appellant was ordered to reinstate him. On appeal, a Full Bench of the IR Commission held that the IR Commission lacked jurisdiction to determine the first respondent's claim and his claim was dismissed. The Full Bench held that a dismissal made pursuant to s 80(3) of the Police Act was excluded from review by the IR Commission under the unfair dismissal regime of the IR Act. The first respondent successfully applied to the Court of Appeal for judicial review of the Full Bench's decision. The Court of Appeal held that the IR Commission had jurisdiction and remitted the matter to the Full Bench to be determined according to law. On appeal by special leave to the High Court, the appellant submitted that the terms of s 80(3) of the Police Act were inconsistent with a right to review under the IR Act. The Court, by majority, agreed and allowed the appeal. The majority held that the Police Act indicated a legislative intention that a decision made under s 80(3) to dismiss a probationary police officer was not to be subject to review by the IR Commission. This was indicated in several ways including the manner in which s 80(3) was framed, suggesting as it did that the appellant's power to dismiss was unfettered. There was incoherence between reasons not being required by s 80(3) and the matters to be considered by the IR Commission in determining an unfair dismissal claim and, in addition, the relief available under the IR Act was at odds with the appellant's right under s 80(3) to dismiss. The majority also considered that an anomalous position would result if probationary police officers were given greater procedural rights under the IR Act's unfair dismissal regime than confirmed police officers whose unfair dismissal claims are regulated by the Police Act. |
HIGH COURT OF AUSTRALIA 29 January 2019 UNIONS NSW & ORS v STATE OF NEW SOUTH WALES [2019] HCA 1 Today the High Court unanimously answered a question stated in a special case to the effect that s 29(10) of the Electoral Funding Act 2018 (NSW) ("the EF Act") is invalid because it impermissibly burdens the freedom of communication on governmental and political matters implied and protected by the Commonwealth Constitution. The EF Act replaced the Election Funding, Expenditure and Disclosures Act 1981 (NSW) ("the EFED Act"). The general scheme of the relevant provisions of the EFED Act was to limit the amount or value of political donations to, and the amounts which could be expended by, political parties, candidates, elected members and others, including "third-party campaigners". According to the Second Reading Speech to the Bill which became the EF Act, it was designed to "preserve[] the key pillars of [the EFED Act], namely, disclosure, caps on donations, limits on expenditure and public funding". Although the scheme of the EFED Act remains largely intact, s 29(10) of the EF Act reduces the expenditure cap applicable to registered third-party campaigners from $1,050,000 to $500,000, which is less than half the amount applicable to, for example, certain political parties. Section 35 of the EF Act prohibits a third-party campaigner from acting in concert with others to incur electoral expenditure above the applicable cap for the third-party campaigner. The EF Act will apply to the next New South Wales State election, which is due to occur in March 2019 ("the 2019 election"). The plaintiffs are a collection of trade union bodies. With the exception of the sixth plaintiff, each plaintiff has registered as a third-party campaigner under the EF Act. Each of the plaintiffs has asserted an intention to incur electoral expenditure during the capped State expenditure period for the 2019 election. In the March 2015 election campaign, three plaintiffs incurred more than $500,000 in electoral communication expenditure. The plaintiffs commenced proceedings in the High Court shortly after the EF Act commenced, seeking declarations of invalidity in respect of ss 29(10) and 35 of the EF Act, and the parties agreed a special case for the consideration of the Full Court. The defendant, the State of New South Wales, contended that a purpose of the EF Act, and in particular s 29(10), was to prevent the drowning out of voices in the political process by the distorting influence of money ("the identified purpose"). A majority of the Court held that, accepting or assuming that the identified purpose was the real purpose of s 29(10) and that it was a legitimate purpose, the reduction in the cap applicable to third-party campaigners was not demonstrated to be reasonably necessary to achieve that purpose. As a result, s 29(10) was held to be invalid. For the majority, that invalidity had the result that it was unnecessary to answer the question concerning s 35 of the EF Act, because there was no applicable cap upon which the section could operate. |
HIGH COURT OF AUSTRALIA Public Information Officer 20 July 2006 CAROL ANNE STINGEL v GEOFFREY CLARK Ms Stingel was within the six-year limitation period when she brought an action against Mr Clark for post-traumatic stress disorder in 2000 over alleged rapes in 1971, the High Court of Australia held today. Ms Stingel, 51, alleges she was assaulted and raped by Mr Clark on two occasions in March and April 1971, first at the Warrnambool Municipal Gardens and then at a nearby beach. She alleges she now suffers injury in the form of post-traumatic stress disorder of delayed onset and that she only became aware of the connection between the attacks and the injury in 2000. In August 2002 Ms Stingel commenced an action for damages against Mr Clark in the Victorian County Court. She claims aggravated, exemplary and punitive damages for trespass against the person. The merits of the case have not yet been tried. Under Victoria’s Limitation of Actions Act, actions in tort have a general limitation period of six years from the date on which the cause of action accrued – in the case of trespass, from the date of the trespass – which had long expired by 2002. Ms Stingel claims her case falls under section 5(1A) of the Act which provides that an action for damages for negligence, nuisance or breach of duty, where damages are for personal injuries from a disease or disorder contracted by a person, may be brought within six years of the date on which the person first knew they had suffered injury. Mr Clark argued that section 5(1A) did not apply because an action for trespass is not an action for breach of duty so the general limitation period applied. The County Court rejected this argument. Mr Clark appealed to the Court of Appeal, which, by a 3-2 majority, allowed the appeal on the ground that the facts did not attract section 5(1A). The Court of Appeal held that Ms Stingel’s injury was traumatic, not insidiously progressive in the manner of asbestos-related diseases, so her action was statute-barred. Ms Stingel appealed to the High Court. Mr Clark also contended that the “breach of duty” argument should be accepted by the Court. The High Court, by a 5-2 majority, allowed the appeal and rejected Mr Clark’s contention. The words “breach of duty” had been held in Victoria to cover trespass to the person, including intentional trespass. The Court held that these earlier decisions should be followed and that this construction accorded with the legislative history, context and purpose of the Act. The Court overturned the Court of Appeal’s interpretation of “disease or disorder contracted” as these words are not limited to insidious conditions. The Victorian Parliament used general language and made no reference to insidious diseases. The High Court held that nothing in section 5(1A) limits its operation to cases in which a disorder was contracted before the expiry of the usual six-year limitation period. |
HIGH COURT OF AUSTRALIA 17 December 2015 WEI v MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2015] HCA 51 Today the High Court unanimously held that a decision of a delegate of the Minister for Immigration and Border Protection ("the Minister") to cancel the plaintiff's student visa under s 116(1)(b) of the Migration Act 1958 (Cth) for failure to comply with a condition of his visa was affected by jurisdictional error. The plaintiff, a citizen of the People's Republic of China, held a student visa. It was a condition of his visa that he be enrolled in a "registered course" provided by a "registered provider" under the Education Services for Overseas Students Act 2000 (Cth) ("the ESOS Act"). Section 19 of the ESOS Act requires registered providers to give information about student visa holders to the Secretary of the Department of Education and Training, including information confirming their enrolment. The information is stored on an electronic database known as "PRISMS" and can be accessed by officers of the Department of Immigration and Border Protection ("the Department"). Between June 2013 and June 2014, the plaintiff was enrolled in a registered course provided by a registered provider. However, confirmation of the plaintiff's enrolment was not recorded in PRISMS. On the basis of outdated information in PRISMS, officers of the Department formed the view in early 2014 that the plaintiff was not enrolled in a registered course. The officers formally complied with statutory requirements to notify the plaintiff that consideration was being given to cancelling his visa, but the plaintiff did not receive notice of that consideration. The plaintiff's visa was cancelled by a delegate of the Minister on 20 March 2014. The plaintiff discovered that his visa had been cancelled on 2 October 2014 and sought review of the cancellation decision in the Migration Review Tribunal. The Tribunal determined that it did not have jurisdiction to review the decision. The plaintiff filed an application for an order to show cause in the original jurisdiction of the High Court, seeking writs of certiorari and prohibition to quash the decision of the delegate and to prevent the Minister from giving effect to the delegate's decision. The Court unanimously held that the delegate's decision to cancel the plaintiff's visa was affected by jurisdictional error. By majority, the Court held that the delegate's satisfaction that the plaintiff was in breach of a visa condition was formed by a process of fact-finding tainted by the registered provider's failure to perform its imperative statutory duty to upload onto PRISMS confirmation of the plaintiff's enrolment. The Court granted the relief sought by the plaintiff. |
HIGH COURT OF AUSTRALIA 10 February 2021 MINISTER FOR HOME AFFAIRS v BENBRIKA [2021] HCA 4 Today, the High Court answered a question reserved for the consideration of the Court of Appeal of the Supreme Court of Victoria that had been removed into the High Court. The question concerned Div 105A of the Criminal Code (Cth) ("the Code"), which empowers the Supreme Court of a State or Territory, on the application of the Minister for Home Affairs ("the Minister"), to order that a person who has been convicted of a terrorist offence be detained in prison for a further period after the expiration of his or her sentence of imprisonment. The Court held, by majority, that the power to make a continuing detention order ("CDO") under s 105A.7 of the Code is within the judicial power of the Commonwealth and has not been conferred, inter alia, on the Supreme Court of Victoria contrary to Ch III of the Commonwealth Constitution. On 15 September 2008, Mr Abdul Nacer Benbrika was convicted by the Supreme Court of Victoria of being a member of a terrorist organisation and directing the activities of a terrorist organisation. At trial, the Crown case was that Mr Benbrika and others were members of a Melbourne-based terrorist organisation that was fostering or preparing the doing of a terrorist act in Australia or overseas. Mr Benbrika was sentenced to an effective term of imprisonment of 15 years with a non- parole period of 12 years. His sentence expired on 5 November 2020. On 4 September 2020, the Minister commenced proceedings in the Supreme Court of Victoria, seeking a CDO in respect of Mr Benbrika. On 24 December 2020, it was ordered that Mr Benbrika be subject to a CDO to be in force for a period of three years. Mr Benbrika's principal argument relied on the principle, articulated in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 and derived from the separation of powers provided for by the Constitution, that, exceptional cases aside, the involuntary detention of a citizen in custody by the State is penal or punitive in character and exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt ("the Lim principle"). It was contended that the scheme for preventative detention provided for by Div 105A neither complies with, nor falls within a recognised exception to, this principle and so may not be conferred as federal judicial power. A majority of the Court held that a scheme that is appropriately tailored to protecting the community from the singular threat posed by terrorist criminal activity is capable of coming within an exception to the Lim principle analogous to other established exceptions that share a purpose of protection of the community from harm, such as detention of those suffering from mental illness or infectious disease. Taken as a whole, particularly as the power to make a CDO under Div 105A is conditioned on a judge being satisfied not only that the risk of the commission of certain offences is "unacceptable" but also that no other, less restrictive measure would be effective in preventing that risk, the division is rightly characterised as directed to ensuring the safety and protection of the community from the risk of harm posed by the threat of terrorism. Accordingly, Div 105A validly confers the judicial power of the Commonwealth on the Supreme Court of a State or Territory. |
HIGH COURT OF AUSTRALIA THE QUEEN v BARBARA BECKETT 23 October 2015 [2015] HCA 38 Today the High Court unanimously allowed an appeal against orders of the Court of Criminal Appeal of the Supreme Court of New South Wales ("the CCA") that permanently stayed the prosecution of the respondent for an offence under s 319 of the Crimes Act 1900 (NSW) ("the Act"). The High Court set aside the orders of the CCA, enabling the prosecution of the respondent to proceed. The respondent is a solicitor who was approved by the Chief Commissioner of State Revenue to electronically lodge certain tax returns and payments, including stamp duty. She was authorised to stamp transfers of real property using accountable stamps on the condition that the duty payable in respect of a transfer was available to her prior to processing the relevant transaction online. On 11 June 2010, the respondent stamped a transfer and completed an online assessment of duty payable for the conveyance of a unit. The duty was not paid to the Office of State Revenue ("OSR"), to which it was payable. As part of the OSR's investigation into the outstanding duty, the respondent attended a compelled interview conducted by investigators from the OSR. It is alleged that, during the interview, the respondent produced photocopies of two forged bank cheques and made false statements to the investigators, with a view to concealing the true facts and thereby preventing her prosecution for one or more offences under taxation law. Section 319 of the Act makes it an offence for a person to do any act, or make any omission, intending in any way to pervert the course of justice. The respondent was arraigned in the District Court of New South Wales on an indictment which charged her with an offence under s 319. By notice of motion dated 4 December 2013, the respondent sought to quash the indictment or to stay the proceedings against her permanently. The respondent contended that there was no "course of justice" in existence at the time of the impugned conduct, that is, during the interview. Sweeney DCJ dismissed the respondent's motion. Her Honour held that a prosecution for an offence under s 319 could be maintained notwithstanding that no judicial proceedings had been commenced at the time of the impugned conduct. The respondent appealed to the CCA on numerous grounds. The CCA determined that Sweeney DCJ was wrong to conclude that the s 319 prosecution could proceed. Their Honours held that the impugned conduct occurred before the jurisdiction of a court or competent judicial tribunal was invoked and was, therefore, incapable of constituting an offence under s 319. The prosecution for the s 319 offence was permanently stayed and the respondent's other grounds of appeal were dismissed. By grant of special leave, the appellant appealed to the High Court. The Court unanimously allowed the appeal, holding that an act done before the commencement of judicial proceedings may constitute an offence contrary to s 319 where it is done with intent to frustrate or deflect the course of judicial proceedings that the accused contemplates may possibly be instituted. Liability for the offence hinges on the intention to pervert the course of justice and not upon the perversion of a course of justice already in existence. |
HIGH COURT OF AUSTRALIA 2 December 2020 [2020] HCA 44 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Family Court of Australia ("the Full Court"). The issue raised by the appeal was whether a ruling made by the Personal Status Court of Dubai ("the Dubai Court") in divorce proceedings by the respondent husband against the appellant wife ("the Dubai proceedings") had the effect of precluding the wife from pursuing property settlement proceedings and spousal maintenance proceedings against the husband under the Family Law Act 1975 (Cth) ("the Act"). The wife and husband married in Dubai in 2007 where they had a child and lived partly in the United Arab Emirates ("UAE") and partly in Australia. They separated in 2013 and the wife and child remained in Australia. In 2013, the wife sought parenting orders in proceedings commenced in the Family Court, which were later amended to also seek orders for property settlement and spousal maintenance. In 2014 the husband instituted the Dubai proceedings, and in 2015 the Dubai Court made a ruling that granted the husband an "irrevocable fault-based divorce", which dissolved the marriage, and also ordered the wife to pay an amount corresponding to advanced dowry and costs. The husband applied to the Family Court for a permanent stay of the property settlement and spousal maintenance proceedings on the basis that the ruling of the Dubai Court operated as a bar to those proceedings by reason of the principles of res judicata, cause of action estoppel and/or the principle in Henderson v Henderson (also known as "Anshun estoppel"). The primary judge dismissed the husband's application for a stay, holding that the Dubai proceedings did not involve the issue of the wife's right to claim property from the husband other than certain joint investment property, and did not deal with any right of the wife to alimony but rather described it as "untimely". On appeal, the Full Court unanimously allowed the husband's appeal and ordered a permanent stay of the property settlement and spousal maintenance proceedings. The Full Court held that the Dubai proceedings determined the same cause of action as the property settlement proceedings and so gave rise to a "res judicata estoppel". The Full Court also held that, as the wife had chosen not to press a claim for alimony that was available in the Dubai proceedings, she was precluded from pursuing a claim for spousal maintenance by operation of the principle in Henderson v Henderson. Following a grant of special leave, the High Court unanimously allowed the appeal from the Full Court's decision. A plurality held that the ruling of the Dubai Court could not give rise to a res judicata as the rights to seek orders for property settlement and spousal maintenance under ss 79 and 74 of the Act could only "merge" in the final judicial orders of a court having jurisdiction under the Act to make such orders. In relation to the property settlement proceedings, the ruling of the Dubai Court was incapable of founding a cause of action estoppel or an Anshun estoppel because the right to seek a share in joint investment property in the Dubai proceedings was not in any degree equivalent to the nature of the right to seek the discretionary alteration of property interests under s 79 of the Act. In relation to the spousal maintenance proceedings, while the nature of the rights to alimony under the law of the UAE and to spousal maintenance under s 74 of the Act were substantially equivalent, there was a significant difference in the coverage of the two rights, in that it had not been shown that the former was able to be claimed beyond the date of divorce. For that reason, the wife's choice not to claim alimony in the Dubai proceedings could provide no foundation for the operation of an Anshun estoppel. The remaining Justices also held that the ruling of the Dubai Court raised no res judicata, cause of action estoppel or |
HIGH COURT OF AUSTRALIA 5 October 2012 INTERNATIONAL LITIGATION PARTNERS PTE LTD v CHAMELEON MINING NL (RECEIVERS AND MANAGERS APPOINTED) & ORS [2012] HCA 45 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales. The Court held that International Litigation Partners Pte Ltd ("ILP") was entitled to an early termination fee under a litigation funding agreement ("the Funding Deed") with Chameleon Mining NL ("Chameleon"). ILP agreed to fund Chameleon's litigation against another company in return for a share of the proceeds of that litigation. The Funding Deed allowed ILP to terminate this arrangement, and entitled it to an early termination fee, if there was a "change in control" of Chameleon. A change in control did take place, and ILP terminated the arrangement and claimed the early termination fee. Chameleon refused to pay, arguing that ILP was not entitled to the fee because ILP did not hold an Australian financial services licence under Pt 7.6 of the Corporations Act 2001 (Cth) ("the Corporations Act"). The High Court held that ILP was entitled to the early termination fee. The Funding Deed was a form of financial accommodation in that ILP agreed to pay Chameleon's legal costs when asked to do so in return for a share of any amount recovered in Chameleon's litigation. The Funding Deed was therefore a credit facility within the meaning of the Corporations Act, and ILP was exempt from the requirement to hold an Australian financial services licence. |
HIGH COURT OF AUSTRALIA 15 May 2019 RUDY FRUGTNIET v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION [2019] HCA 16 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia. The High Court held that the Administrative Appeals Tribunal ("the AAT"), on review of a decision by the Australian Securities and Investments Commission ("ASIC") to impose a banning order, is prohibited from taking into consideration a spent conviction within the meaning of Pt VIIC of the Crimes Act 1914 (Cth) which ASIC was prohibited from taking into account in making the decision to impose the banning order. In 1978 and 1997, the appellant was found guilty of offences which at all relevant times constituted spent convictions within the meaning of Pt VIIC of the Crimes Act. In 2014, a delegate of ASIC made a banning order against the appellant under s 80(1) of the National Consumer Credit Protection Act 2009 (Cth) ("the Credit Protection Act") on the basis that ASIC had reason to believe that the appellant was not a fit and proper person to engage in credit activities. On a review of the delegate's decision, the AAT took into consideration the appellant's spent convictions. The appellant appealed to the Federal Court on grounds including that the AAT had erred in law in taking the spent convictions into consideration. Division 3 of Pt VIIC of the Crimes Act has the relevant effect that a person whose conviction is spent is not required to disclose to any Commonwealth authority the fact that the person was charged with or convicted of the offence, and that a Commonwealth authority is prohibited from taking account of the fact that the person was charged with or convicted of the offence. Although a Commonwealth authority includes both the AAT and ASIC, s 85ZZH(c) of the Crimes Act provides that Div 3 does not apply in relation to the disclosure of information to, or the taking into account of information by, a tribunal established under a Commonwealth law. Dismissing an appeal from the judgment of the Federal Court at first instance, the Full Court of the Federal Court held that s 85ZZH(c) of the Crimes Act entitled the AAT to take into consideration material which ASIC was prevented from taking into consideration by Div 3 of Pt VIIC. By grant of special leave, the appellant appealed to the High Court. The High Court held that the jurisdiction of the AAT on a review of a decision made by ASIC under s 80 of the Credit Protection Act is unaffected by s 85ZZH(c) of the Crimes Act. Except where altered by statute, the jurisdiction conferred on the AAT is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself, on the material before it, the decision which can and should be made in the exercise of the power conferred on the primary decision-maker. The AAT exercises the same power as the primary decision-maker, subject to the same constraints, and a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT. |
HIGH COURT OF AUSTRALIA Public Information Officer 14 November 2007 DIRECTOR OF PUBLIC PROSECUTIONS v PHAN THI LE Only the wife’s interest in an apartment owned by her and her husband, rather than the whole apartment, should have been quarantined from confiscation after being used for criminal purposes by the husband, the High Court of Australia held today. In 2003, Ms Le’s husband, Roy Le, was charged with a number of offences including trafficking in a commercial quantity of heroin. He pleaded guilty in 2005 and was sentenced to four years’ jail with a two-year non-parole period. The Les married in Vietnam in 1997. In 1998 Mr Le bought an apartment in Sunshine in Melbourne and Ms Le has lived there since she came to Australia in 1999. Two months after being charged, Mr Le transferred the apartment into their joint names, with the consideration for the transfer expressed as “natural love and affection”. Ms Le was concerned that if anything happened to Mr Le his children from a former marriage would get the apartment and she would have nowhere to live. After Mr Le was charged, the DPP obtained from the Victorian County Court a restraining order under Victoria’s Confiscation Act over the property. The apartment was “tainted property” because Mr Le had used it to store and prepare heroin for sale. It was automatically forfeited to the State 60 days after his conviction. Ms Le later sought an order under section 52 of the Act excluding the property from forfeiture. Judge Stuart Campbell said that the transfer appeared to be no more than a recognition of Ms Le’s matrimonial rights. He and the majority of the Court of Appeal held that an order under section 52 excluded all of the property in which Ms Le claimed an interest, and not merely her interest in the property. The Court of Appeal unanimously agreed with Judge Campbell that “natural love and affection” in the circumstances of the case constituted “sufficient consideration” under section 52 for acquiring an interest in property and that Ms Le lacked a reasonable suspicion that the apartment was “tainted property”. The DPP had sought to have the exclusion order apply only to Ms Le’s interest as a joint tenant. The DPP appealed to the High Court. Three judges of the Court allowed the appeal in part. Two judges would have allowed it entirely. The majority allowed the appeal on the ground that the exclusion order should have applied only to Ms Le’s interest rather than to the whole property. It upheld the Court of Appeal’s findings that “sufficient consideration” encompassed “natural love and affection” and that Ms Le had not held a reasonable suspicion that the apartment had become “tainted property” through criminal activity there. The minority held that the original restraining order had applied to the whole property, but held that “natural love and affection” did not amount to “sufficient consideration” under section 52. The DPP had undertaken to pay Ms Le’s costs whatever the outcome. |
HIGH COURT OF AUSTRALIA 13 October 2009 SYDNEY WATER CORPORATION v MARIA TURANO & ANOR [2009] HCA 42 When the Sydney Water Corporation (then known as the Metropolitan Water Sewerage and Drainage Board) laid a water main in 1981 which ultimately affected the root system of a tree on the side of a road near where the water main was laid, it could not reasonably be expected to have foreseen a risk that the tree might fall on users of the road in 2001, the High Court held today. Manager, Public Information On 18 November 2001 Maria Turano’s husband, Napoleone, died after a eucalyptus tree fell on his car while he was driving along Edmondson Ave, near Liverpool in New South Wales. Mrs Turano and her two children were also in the car and were injured. Mrs Turano issued proceedings in the New South Wales District Court, claiming from City of Liverpool Council and Sydney Water Corporation damages for her injuries, on behalf of her children for their injuries, and for the death of her husband. In the District Court Mrs Turano was successful against Liverpool Council but failed to establish Sydney Water’s liability. The Court of Appeal of the Supreme Court of New South Wales upheld both Liverpool Council’s appeal and Mrs Turano’s appeal against Sydney Water, determining that Sydney Water owed Mrs Turano a duty of care which it had breached. Sydney Water sought and was granted special leave to appeal. In the 1960s a culvert was built under Edmondson Ave, Austral, a semi-rural area near Liverpool. Water drained from the culvert into an outlet pit and from there into pasture land lying beyond the pit. The tree which killed Mr Turano stood about four metres from the outlet of the culvert on the western shoulder of Edmondson Ave. In about 1981 Sydney Water laid a water main under the western shoulder of Edmondson Ave, which cut across the culvert’s outlet pit. The way in which it was laid caused it to obstruct the free flow of water from the culvert. The water main was laid on a bed of sand 300mm deep, which was much more permeable than the clay of the outlet pit. Water periodically collected in the outlet pit and drained along the sand bed in which the water main was laid. Excess water probably travelled along the sand bed to reach the roots of the tree in question. This intermittent water-logging of the tree’s root system had facilitated the infection of the root system with the phytophthera pathogen. The tree fell in a wind storm. The infection of its root system was an underlying cause of that fall. The Court of Appeal concluded that Sydney Water had a duty to install the water main in such a way that the integrity of the culvert drainage system was not compromised. The Court of Appeal found Sydney Water had breached that duty in two ways – it had laid the water main so that it caused periodic damming of the drain; and, by laying the water main in sand, it had caused the dammed water to drain towards the tree roots, thus undermining the root system. The High Court found that the Court of Appeal had wrongly imposed a strict duty on Sydney Water requiring that it preserve the existing drainage in the vicinity of its water main as distinct from a duty to take reasonable care to avoid foreseeable injury to road users. In the view of the High Court, the laying of the water main had not created an immediate risk of harm to road users. In considering whether Sydney Water owed a duty of care to Mrs Turano it was relevant to consider the interval between the installation of the water main and the accident. A related factor was that in the intervening 20 years the tree was growing on land owned by Liverpool Council and the risk of its failure was one over which the Council and not Sydney Water had control. The Court found that the trial judge had been correct to conclude that Sydney Water did not in the circumstances owe a duty of care to Mrs Turano. It reinstated the trial judge’s verdict in Sydney Water’s favour. |
HIGH COURT OF AUSTRALIA Public Information Officer 11 June 2008 CTM v THE QUEEN Honest and reasonable mistake of fact about the age of a girl was a potential ground of exculpation in a charge of sexual assault of a girl under 16, the High Court of Australia held today. The Court also held that CTM had not discharged the evidential burden of raising that ground at his trial. In October 2004, in Coffs Harbour, the complainant had been out drinking with two friends and they ended up at CTM’s flat where he was also drinking with four other males. The girl fell asleep and was taken to a bedroom and her friends left. CTM, a co-accused and another male whom the girl could not positively identify, allegedly sexually assaulted her. CTM and the girl had become friends that year through attending the same high school. CTM was aged 17 and in year 11. He told police he thought the girl was in year 10 and that she had told him some time before that she was 16, but she was 15 and in year nine. He also denied having sex with the girl. CTM was charged with sexual intercourse with the girl, knowing she was not consenting. In the NSW District Court, he was acquitted of this charge, but was found guilty of the alternative charge of sexual intercourse with a person aged between 14 and 16, contrary to section 66C(3) of the NSW Crimes Act, which carries a penalty of 10 years’ imprisonment. He was given a suspended 18- month sentence. Before the Act was amended in 2003 it provided a defence to heterosexual acts with under-age people if the offender reasonably believed that the child to whom the charge related was aged at least 16, and provided that the child was at least 14 and had consented to the sexual activity. After the 2003 amendments, the Act said nothing expressly about mistake as to age. CTM appealed to the Court of Criminal Appeal against both his conviction and his sentence. The CCA upheld the conviction but held that the District Court had made errors in sentencing and remitted the case to the District Court. CTM appealed to the High Court in relation to his conviction. The Court, by a 6-1 majority, dismissed the appeal. The majority held that the ground of exculpation applied, but that in the circumstances of the trial CTM could not rely on it. The Court held that the NSW Parliament had not excluded the principle of criminal responsibility that a person who does an act under an honest and reasonable, but mistaken, belief was not criminally responsible to any greater extent than if their belief had been correct. An honest and reasonable belief that the girl was aged 16 was an answer to a charge under section 66C(3). The evidential onus of raising such a ground of exculpation for consideration lay with the accused. If it were raised the prosecution then had the onus of proving beyond reasonable doubt that the accused did not honestly believe on reasonable grounds that the other person was consenting and was at least 16. In CTM’s case, he did not give evidence at his trial and it was not put to the girl in cross- examination that she had said anything to CTM about her age. |
HIGH COURT OF AUSTRALIA 6 December 2005 LINDSAY GORDON PARK AND JILL PARK v CLIVE ROY BROTHERS The High Court of Australia today upheld an appeal from the New South Wales Court of Appeal relating to the amount of damages awarded for breach of a contract for the sale of rural land. On 12 September 2000, the Parks agreed to buy Mr Brothers’ property, “Jellalabad”, 40km west of Hay in southern NSW, for $3.35 million. The property had extensive areas suited to irrigation and rice growing. Mr Park had grown both wheat and rice and was keen to expand the farm’s potential for rice production. The contract provided for the purchasers to take possession immediately, subject to certain contractual requirements. Settlement was due on 7 December 2000 but the Parks arranged to move on to Jellalabad immediately to plant a rice crop for the 2000-01 season. The settlement date would have allowed Mr Park to develop another 860 hectares in time for the 2001-02 season, work which have taken about five months. Mr Brothers was aware of these plans. Special condition 24 in the contract included that the Parks could enter the property before settlement and work up ground for crops in locations first approved by Mr Brothers. Various disputes arose between Mr Brothers and the Parks, particularly over a $150,000 bill for water connection, and Mr Brothers ordered them off the property. Mr Brothers purported to rescind the contract. The Supreme Court later held that such rescission was invalid. Settlement finally took place on 24 March 2001. The Parks later sought damages, claiming loss of profit from a reduced yield from the 2000-01 crop due to their inability to oversee it, and loss of profits due to their inability to undertake landform works in time to plant the extra 860 hectares for 2001-02. The landform works had to be done before the arrival of winter rains, but the eventual settlement in March 2001 meant it was too late to undertake such work that year. In 2003 the NSW Supreme Court awarded damages of $1,512,052. Mr Brothers appealed to the NSW Court of Appeal, which upheld a ground relating to the Parks’ claim of loss of profit for 2001-02, and reduced the award to $464,641. The issue, raised for the first time on appeal, was that the Parks had not established that the 2001-02 losses were caused by Mr Brothers breaching special condition 24 because without prior approval from him there was no entitlement to access the 860 hectares before the March 2001 settlement. The Parks appealed to the High Court. The Court unanimously allowed the appeal. It held that no question of approval actually arose as Mr Brothers had excluded the Parks from Jellalabad in mid-December 2000 and purported to rescind the contract. The Court held that the evidence and arguments at trial had not raised for consideration the possibility that, acting reasonably, Mr Brothers may have refused such approval. The Court noted there was nothing to show that Mr Brothers would wish to withhold approval when development would improve the value of the land and cause him no harm or inconvenience. However, in light of Mr Brothers’ stance rescinding the contract, to then seek approval for the 860 hectares was futile. The claim was for damages for breach of special condition 24 by totally refusing access. If evidence had been directed to the point, damages could have reflected the possibility, if any, that approval of the 860 hectares could be withheld. The High Court held that the Court of Appeal should not have allowed the issue to be raised on appeal because by then it could not be dealt with fairly. |
HIGH COURT OF AUSTRALIA 12 December 2007 Public Information Officer AUSTRALIAN FINANCE DIRECT LIMITED v DIRECTOR OF CONSUMER AFFAIRS VICTORIA A credit provider’s failure to disclose to borrowers information concerning “holdbacks” contravened credit disclosure laws, the High Court of Australia held today. Australian Finance Direct (AFD) is a credit provider within the meaning of the Consumer Credit (Victoria) Code and offered loans to people wishing to attend financial seminars provided by National Investment Institute Pty Ltd (NII) and two related companies, Capital Holdings Group (NSW) Pty Ltd and Capital Holdings Group (Vic) Pty Ltd. When people wishing to attend the seminars required funding from AFD, they would sign the seminar enrolment form and credit contract documentation. The amount of the loan from AFD was the seminar fee charged by NII or Capital. In a typical credit contract, NII’s seminar fee was $15,340, plus interest of $4,781.12, totalling $20,121.12, repayable in 48 monthly instalments of $419.19. However, the Director of Consumer Affairs alleged that the amount payable by AFD to NII was not $15,340, but a lesser figure after a “holdback” was retained by AFD. The holdback was not disclosed to the borrower and the statement of the amount paid to NII was incorrect. The standard holdback was typically 10 per cent of the loan amount. Where customers did not meet the normal credit criteria, a further 40 per cent high-risk holdback was retained by AFD. Where there was only a standard holdback, NII would receive $13,806 of the $15,340 seminar fee from AFD. If there was also a high-risk holdback, NII would receive half, $7,670. The Director of Consumer Affairs brought proceedings against AFD, alleging that it had breached section 15(B) of the Code. An object of section 15(B)(a) is to ensure that, where the provision of credit takes the form of payment by the credit provider to a supplier of goods or services to the debtor, the debtor is fully informed of the amount of the deferred debt, the details of the person or persons to whom the credit provider is to pay the advance, and the amounts payable to each person. The Victorian Civil and Administrative Tribunal, the Supreme Court and the Court of Appeal, by majority, held that AFD had contravened disclosure requirements in section 15(B). AFD appealed to the High Court. The Court unanimously dismissed the appeal and held that the credit contracts did not comply with section 15(B) of the Code. It held that the holdbacks should have been disclosed. Section 15(B) required disclosure of the persons, bodies or agents, including the credit provider, to whom the credit was to be paid and the amounts payable to each of them. AFD argued that section 15(B) was concerned only with the credit contract, and the contract between AFD and NII relating to holdbacks was irrelevant. The Director of Consumer Affairs submitted that the term “amounts payable” was not confined to the obligations of AFD and borrowers under the credit contract to the exclusion of other contractual arrangements between AFD and NII. The Court held that the statement that $15,340 was to be paid to NII was incorrect. The holdback was not irrelevant to the requirements of section 15(B), which had not been met. |
HIGH COURT OF AUSTRALIA 21 December 2016 RP v THE QUEEN [2016] HCA 53 Today the High Court allowed an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales. The High Court held that the Court of Criminal Appeal erred in finding that the appellant's convictions were not unreasonable in circumstances where there was insufficient evidence to rebut the presumption that he, as a child of 11, did not know his behaviour was seriously wrong in a moral sense. Relevantly, the appellant was convicted, after a trial by judge alone, of two counts of sexual intercourse with a child under 10 years. The complainant was the appellant's half-brother. At the time of the offending, the appellant was aged approximately 11 years and six months and the complainant was aged six years and nine months. A child under 14 years is presumed to lack the capacity to be criminally responsible for his or her acts. The only issue at trial was whether the prosecution had rebutted the presumption in the case of the appellant by proving that the appellant knew that his actions were seriously wrong in a moral sense. The first offence took place in circumstances where: there were no adults in the house; the appellant grabbed the complainant and held him down; the complainant was crying and protesting; the appellant put his hand over the complainant's mouth; and the appellant stopped the intercourse when he heard an adult returning to the house and told the complainant not to say anything. The second offence took place a few weeks later, in circumstances where: the appellant and complainant were again without adult supervision; the appellant took hold of the complainant; and the appellant stopped intercourse when he heard an adult returning. There was also evidence that, when the appellant was aged 17 and 18 years old, he was twice assessed as being in the borderline disabled range of intellectual functioning and was found by the trial judge to be of "very low intelligence". The trial judge held that the circumstances surrounding the first offence proved beyond reasonable doubt that the presumption was rebutted in relation to that offence. His Honour found that it logically followed that the presumption was rebutted in relation to the second offence. The Court of Criminal Appeal dismissed the appellant's appeal against his two convictions. The Court unanimously held that the presumption was rebutted in relation to the first offence. A majority of the Court held that it was also rebutted in relation to the second offence, finding that the appellant's understanding of the wrongness of his actions in the second offence was informed by the finding that he knew his actions in the first offence were seriously wrong. By grant of special leave, the appellant appealed to the High Court. The plurality of the Court found that in the absence of evidence of the environment in which the appellant had been raised or from which any conclusion could be drawn as to his moral development, it was not open to conclude that the appellant, with his intellectual limitations, was proved beyond reasonable doubt to have understood that his conduct was seriously wrong in a moral sense. The Court ordered that his convictions be quashed and entered verdicts of acquittal. |
HIGH COURT OF AUSTRALIA 27 October 2017 IN THE MATTERS OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING SENATOR THE HON MATTHEW CANAVAN, MR SCOTT LUDLAM, MS LARISSA WATERS, SENATOR MALCOLM ROBERTS, THE HON BARNABY JOYCE MP, SENATOR THE HON FIONA NASH AND SENATOR NICK XENOPHON [2017] HCA 45 Today the High Court, sitting as the Court of Disputed Returns upon references from the Senate and the House of Representatives, unanimously held that each of Mr Scott Ludlam, Ms Larissa Waters, Senator Malcolm Roberts, the Hon Barnaby Joyce MP and Senator the Hon Fiona Nash was "a subject or a citizen … of a foreign power" at the time of his or her nomination for the 2016 federal election, and that each was therefore incapable of being chosen or of sitting as a senator or a member of the House of Representatives (as applicable) by reason of s 44(i) of the Constitution. The Court unanimously held that neither Senator the Hon Matthew Canavan nor Senator Nick Xenophon was disqualified by reason of that provision. In each reference, the question whether the referred person was disqualified turned upon the proper construction of s 44(i) of the Constitution, having regard to evidence suggesting that each person held dual citizenship at the time of his or her nomination. The Court appointed an amicus curiae to act as contradictor in the references concerning Senators Canavan, Nash and Xenophon, and Mr Antony Windsor became a party to the reference concerning Mr Joyce MP. The approach to construction urged by the amicus curiae and by Mr Windsor was to give s 44(i) its ordinary textual meaning, subject only to the implicit qualification in s 44(i) that the foreign law conferring foreign citizenship must be consistent with the constitutional imperative underlying that provision, namely that an Australian citizen not be prevented from participation in representative government where it can be demonstrated that he or she took all steps reasonably required by foreign law to renounce his or her citizenship of a foreign power. Several alternative constructions were proposed by the referred persons and by the Attorney-General of the Commonwealth. At a minimum, each of these involved reading s 44(i) as subject to an implied mental element in relation to the acquisition or retention of foreign citizenship. Those constructions varied with respect to the degree of knowledge required and whether a voluntary act of acquiring or retaining foreign citizenship was necessary. The Court held that the approach of the amicus and Mr Windsor must be accepted, as it adheres most closely to the ordinary and natural meaning of the language of s 44(i), and accords with the views of a majority of the Justices in Sykes v Cleary (1992) 176 CLR 77; [1992] HCA 60. It was held that a consideration of the drafting history of s 44(i) does not warrant a different conclusion. Further, the Court observed that the approach adopted avoids the uncertainty and instability that attends the competing constructions. Applying that approach, the Court held that Mr Ludlam, Ms Waters, Senator Roberts, Mr Joyce MP and Senator Nash were disqualified by reason of s 44(i). Neither Senator Canavan nor Senator Xenophon was found to be a citizen of a foreign power, or entitled to the rights or privileges of a citizen of a foreign power, within the meaning of s 44(i), and therefore neither was disqualified by reason of that provision. |
HIGH COURT OF AUSTRALIA 19 June 2013 JOAN MONICA MALONEY v THE QUEEN [2013] HCA 28 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland which held that a law restricting possession of alcohol on Palm Island was not invalid by reason of inconsistency with s 10 of the Racial Discrimination Act 1975 (Cth). The appellant, an Indigenous resident of Palm Island in Queensland, was convicted in the Magistrates Court in Townsville of the offence of being in possession of more than a prescribed quantity of liquor in a restricted area on Palm Island contrary to s 168B of the Liquor Act 1992 (Q). Schedule 1R of the Liquor Regulation, made under the Act, has the effect of restricting the nature and quantity of liquor which people may have in their possession in public areas on Palm Island. The Palm Island community is composed almost entirely of Indigenous people. The appellant's appeal against her conviction to the District Court of Queensland was dismissed. Her application for leave to appeal to the Court of Appeal was also dismissed. By special leave, she appealed to the High Court. By force of s 10 of the Racial Discrimination Act, where a law has the effect that persons of a particular race enjoy a right to a more limited extent than persons of another race, the persons adversely affected shall enjoy that right to the same extent as the persons of that other race. However s 10 does not apply if the law is a "special measure" taken for the sole purpose of securing the adequate advancement of a racial group requiring such protection as may be necessary to ensure that group's equal enjoyment or exercise of human rights and fundamental freedoms. In the High Court, the appellant argued that s 10 of the Racial Discrimination Act applied to the provisions of Sched 1R of the Liquor Regulation because those provisions affected her enjoyment of three rights: the right to equal treatment before courts and tribunals; the right to own property; and the right to access places and services intended for use by the general public. She also argued that Sched 1R was not a "special measure" within the meaning of s 8 of the Racial Discrimination Act. The High Court found, by majority, that the impugned provisions were inconsistent with s 10 of the Racial Discrimination Act. However, the Court was unanimously of the view that s 10 did not apply because the provisions constituted a "special measure" designed to protect the residents of Palm Island from the effects of prevalent alcohol abuse and associated violence. Accordingly, the Court held that Sched 1R was valid and dismissed the appeal. |
HIGH COURT OF AUSTRALIA Public Information Officer 5 February, 2003 ROBERT PETER AUSTIN AND KATHRYN ELIZABETH KINGS v THE COMMONWEALTH OF AUSTRALIA The High Court held invalid Commonwealth legislation imposing a superannuation contributions surcharge on state judges, holding by majority that it placed an unconstitutional burden or disability on the operations or activities of states and was beyond power. Justice Austin is a New South Wales Supreme Court judge and Master Kings is a member of the Victorian Supreme Court. They argued the surcharge did not apply to their pension entitlements, but if it did apply it was invalid. Their argument that the surcharge was invalid was supported by the states of NSW, Victoria, South Australia and Western Australia which intervened. The High Court held unanimously that the legislation applied to Justice Austin but by majority held that in its application it was invalid. The Court unanimously held that Master Kings was not liable to pay the surcharge because she was appointed before the surcharge took effect in 1997. It did not apply to serving judges, and the Court held that she was, within the meaning of the legislation, a judge. |
HIGH COURT OF AUSTRALIA 14 October 2015 MOUNT BRUCE MINING PTY LIMITED v WRIGHT PROSPECTING PTY LIMITED & ANOR WRIGHT PROSPECTING PTY LIMITED v MOUNT BRUCE MINING PTY LIMITED & ANOR [2015] HCA 37 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of New South Wales ("NSWCA") in Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited and unanimously allowed an appeal from the NSWCA in Wright Prospecting Pty Limited v Mount Bruce Mining Pty Limited. The High Court held that Mount Bruce Mining Pty Limited ("MBM") is liable to pay royalties to Wright Prospecting Pty Limited and Hancock Prospecting Pty Limited (together, "Hanwright") in respect of iron ore mined in two areas of the Pilbara region of Western Australia known as "Eastern Range" and "Channar". Hanwright, MBM and Hamersley Iron Pty Limited entered into an agreement dated 5 May 1970, which, among other things, concerned the payment of royalties by MBM in relation to iron ore mined from areas of land the subject of the agreement ("the 1970 Agreement"). Pursuant to cl 2.2 of the 1970 Agreement, MBM acquired from Hanwright the "entire rights" to the "MBM area", a term defined by reference to certain "temporary reserves" granted under the Mining Act 1904 (WA). Under cl 3.1 of the 1970 Agreement, royalties were payable to Hanwright on "[o]re won by MBM from the MBM area". The obligation to pay royalties extended to "all persons or corporations deriving title through or under" MBM to the "MBM area". MBM claimed that the term "MBM area" did not refer to an area of land to which rights of occupancy had been transferred to MBM; rather, it referred to the rights themselves. The consequence of this construction would be that Eastern Range and Channar did not fall within the "MBM area" and royalties would not be payable on iron ore extracted therefrom. If MBM’s construction of the term "MBM area" was incorrect, MBM claimed that royalties were, in any event, not payable in respect of iron ore extracted from a part of Channar (referred to as "Channar A") because such ore was not extracted by entities "deriving title through or under" MBM. The Supreme Court of New South Wales rejected MBM’s claims and held that royalties were payable in respect of iron ore extracted from both Eastern Range and Channar. On appeal, the NSWCA held that royalties were payable in respect of Eastern Range but not Channar A. By grant of special leave, each of the parties appealed to the High Court. The High Court held that the term "MBM area" referred to the physical area of land that had been transferred to MBM and was not limited to the rights under the tenements that affected that land at the time of the 1970 Agreement. The Court further held that iron ore was being won from Channar A by entities "deriving title through or under" MBM. The exploitation of Channar A was carried on under a title the derivation of which was facilitated by the deployment by MBM of its own title. |
HIGH COURT OF AUSTRALIA 14 April 2016 IMM v THE QUEEN [2016] HCA 14 Today the High Court unanimously allowed an appeal from a decision of the Court of Criminal Appeal of the Northern Territory. The Court held, by majority, that in determining the probative value of evidence for the purposes of ss 97(1)(b) and 137 of the Evidence (National Uniform Legislation) Act (NT) ("the Evidence Act"), a trial judge should assume that the jury will accept the evidence and, thus, should not have regard to the credibility or the reliability of the evidence. The appellant was convicted by a jury in the Supreme Court of the Northern Territory of two counts of indecent dealing with a child and one count of sexual intercourse with a child under the age of 16 years. The complainant was the appellant's step-granddaughter. The prosecution was permitted to adduce "tendency evidence", given by the complainant, that while the complainant and another girl were giving the appellant a back massage, the appellant ran his hand up the complainant's leg. Section 97(1)(b) of the Evidence Act provides that evidence that has "significant probative value" be excepted from the "tendency rule", which would otherwise render the evidence inadmissible. The prosecution was also permitted to adduce "complaint evidence", which was evidence of complaints made by the complainant to other persons concerning the appellant's conduct. The trial judge refused to exclude the complaint evidence under s 137 of the Evidence Act, which provides that evidence must be excluded where its probative value is outweighed by the danger of unfair prejudice to the defendant. The trial judge approached the task of assessing the probative value of both the tendency evidence and the complaint evidence on the assumption that the jury would accept the evidence. The appellant appealed against his conviction to the Court of Criminal Appeal contending, relevantly, that the trial judge erred in admitting the tendency evidence and the complaint evidence. The Court of Criminal Appeal unanimously dismissed the appeal. By grant of special leave, the appellant appealed to the High Court. The High Court held, by majority, that, in determining the "probative value" of evidence under the Evidence Act, a trial judge must proceed on the assumption that the jury will accept the evidence, and as such it follows that no question as to credibility or reliability of the evidence can arise. The High Court held, by majority, that the probative value of the complaint evidence was potentially significant. Further, the evidence did not create the prejudice to which s 137 of the Evidence Act referred, and as such the evidence was admissible. However the Court also held, by majority, that evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, probative value. Accordingly, the tendency evidence was not admissible under s 97(1)(b). It followed that the trial miscarried. The Court set aside the order of the Court of Criminal Appeal and ordered that the appeal be allowed, that the appellant's conviction be quashed and that there be a new trial of the offences of which the appellant was convicted. |
HIGH COURT OF AUSTRALIA 9 December 2015 COMMONWEALTH OF AUSTRALIA v DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE & ORS CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ANOR v DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE & ANOR [2015] HCA 46 Today the High Court unanimously held that, in civil penalty proceedings, courts are not precluded from considering and, if appropriate, imposing penalties that are agreed between the parties. The Court therefore allowed two appeals from a decision of the Full Court of the Federal Court of Australia ("the Full Court"). The Director of the Fair Work Building Industry Inspectorate ("the Director") commenced a proceeding in the Federal Court of Australia against the Construction, Forestry, Mining and Energy Union ("the CFMEU") and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("the CEPU") (together, "the Unions"). The Director alleged that the Unions had contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth), a civil penalty provision which prohibited unlawful industrial action. The Unions admitted the contraventions and, in accordance with longstanding practice in civil penalty proceedings, agreed with the Director to seek from the Court declarations as to the contraventions and pecuniary penalties of $105,000 against the CFMEU and $45,000 against the CEPU. At a pre-trial directions hearing, the primary judge raised a concern about whether the decision of the High Court in Barbaro v The Queen (2014) 253 CLR 58 applied to the proceedings. In Barbaro, a plurality of the High Court held that criminal prosecutors are not permitted to make a submission to a sentencing judge nominating a quantified range of sentences that the prosecution considers to be open. The proceeding was referred to the Full Court. The Commonwealth was granted leave to intervene. The Full Court held that the principle in Barbaro applies to civil penalty proceedings, with the result that it was impermissible for parties to make joint submissions to a court seeking the imposition of an agreed penalty. The Full Court adjourned the proceeding for further hearing. By grants of special leave, the Commonwealth and the Unions each appealed to the High Court. The Court unanimously held that the principle in Barbaro does not apply to civil penalty proceedings. The task of a court is to determine whether, in all the circumstances, the agreed penalty is an appropriate penalty. The court is not bound to accept the agreed penalty if it does not consider it appropriate. The High Court set aside the Full Court's adjournment order and remitted the proceedings to the Federal Court. |
HIGH COURT OF AUSTRALIA Manager, Public Information 29 April 2009 CONSTANTINE KERAMIANAKIS v REGIONAL PUBLISHERS PTY LTD Today the High Court allowed Dr Keramianakis’ appeal against a decision of the NSW Court of Appeal that it had no jurisdiction to consider his appeal against a verdict entered by a District Court judge in favour of Regional Publishers Pty Ltd. Regional Publishers Pty Ltd publishes the Daily Liberal, a newspaper which circulates in Dubbo. In March 2001 the newspaper published an article about a skin cancer clinic operating under the name “Dubbo Skin Cancer Centre” which included comments critical of the services offered at the clinic and of its fees. Dr Keramianakis and a colleague had established and were running the clinic. They sued Regional Publishers for defamation in the District Court of NSW. Under section 7A of the Defamation Act 1974 (NSW) (the relevant law at the time these events occurred), if the court determined that a publication was reasonably capable of carrying the imputation pleaded by a complainant and that the imputation was reasonably capable of bearing a defamatory meaning, then a jury had to determine whether in fact the publication did carry the imputation pleaded by the complainant and whether the imputation was defamatory. The trial judge determined that the comments published in the Daily Liberal were reasonably capable of carrying the imputations pleaded by Dr Keramianakis and that the imputations were reasonably capable of bearing a defamatory meaning. He asked the jury to determine whether the comments in fact carried the imputations Dr Keramianakis alleged they carried. In each case the jury answered, “No”. Those answers were fatal to Dr Keramianakis’ case. On the basis of the jury’s answers the trial judge entered a verdict in favour of Regional Publishers Pty Ltd and ordered Dr Keramianakis to pay Regional Publishers’ costs. Dr Keramianakis appealed to the NSW Court of Appeal. The majority of that Court considered that the District Court Act allowed an aggrieved party to appeal against a judgment or order of a judge following a jury trial. However, it held that a verdict, even when entered by the judge, did not fall within the description of a “judgment or order”. In the case of a District Court civil jury trial, an aggrieved party could only challenge a jury verdict by making an application for a new trial before the judgment against that party had been entered. The majority of the Court of Appeal determined that it did not have the power to hear Dr Keramianakis’ appeal. The Court of Appeal did say that had it had the power to hear the appeal, it would have found in favour of Dr Keramianakis in relation to two of the three imputations the jury was asked to consider, and it would have entered a verdict for Dr Keramianakis in relation to the complaint of defamation contained in those two imputations. The High Court granted Dr Keramianakis special leave to appeal against the decision of the Court of Appeal and today, in a unanimous decision, held that Dr Keramaniakis had a right to appeal against the orders made by the trial judge in favour of Regional Publishers. This right was not affected by the existence of the procedure which would have allowed him to challenge the jury’s answers by seeking a new trial prior to the verdict being entered. The Court set aside the orders of the NSW Court of Appeal and ordered that there should be a new trial to determine whether the Dubbo Liberal carried the two imputations alleged by Dr Keramianakis, and if it did, whether the imputations were defamatory. |
HIGH COURT OF AUSTRALIA 27 June 2013 GEORGE ELIAS v THE QUEEN & ANOR CHAFIC ISSA v THE QUEEN & ANOR [2013] HCA 31 Today the High Court unanimously dismissed an appeal by two men from a decision of the Court of Appeal of the Supreme Court of Victoria which had rejected their appeals against the severity of the sentences imposed for their respective convictions for attempting to pervert the course of justice. The appellants each pleaded guilty before the Supreme Court of Victoria to offences which included a count of attempting to pervert the course of justice, which, under Victorian law, carries a maximum penalty of imprisonment for 25 years. The appellants were each sentenced to eight years' imprisonment for that offence. The conduct constituting the attempted perversion of justice consisted of acts of assistance given to a fugitive, Antonios (Tony) Mokbel, who had been convicted and sentenced for a Commonwealth offence. The appellants appealed to the Court of Appeal against the severity of their sentences. They submitted that the sentencing judge was wrong not to take into account, as a factor in mitigation of their sentences, that there was a Commonwealth offence of attempting to pervert the course of justice which carried a lesser maximum penalty of five years' imprisonment. The Court of Appeal rejected that argument on the basis that the Sentencing Act 1991 (Vic) does not permit a sentencing judge to have regard to some other maximum penalty prescribed for a Commonwealth offence when sentencing for a Victorian offence. The appellants sought, and were granted, special leave to appeal to the High Court. The High Court unanimously dismissed their appeals. The Court said that there is no common law principle requiring a sentencing judge to take into account as a matter of mitigation that a different offence, for which it was open to prosecute a person, has a lesser maximum penalty. The Court said that the decision of the Court of Appeal of the Supreme Court of Victoria in R v Liang (1995) 124 FLR 350, which held that a sentencing judge must take into account in mitigation of sentence that there is a less punitive offence upon which the prosecution could have proceeded and which is as appropriate to the facts as the charged offence, should not be followed. |
HIGH COURT OF AUSTRALIA 14 September 2012 DIMITRIOS LIKIARDOPOULOS v THE QUEEN [2012] HCA 37 Today the High Court unanimously dismissed an appeal by Dimitrios Likiardopoulos against his conviction for murder. The Court held that there was no abuse of process in prosecuting the appellant as an accessory to murder in circumstances where the Crown had accepted pleas of guilty to lesser offences from five other people involved in the deceased's death, nor had the trial judge erred in leaving the accessorial case to the jury in those circumstances. In March 2007, the appellant and others were involved in a sustained assault on an intellectually handicapped 22 year-old man which lasted about two days. The appellant's involvement in the assault included two "king hits" which dislodged two of the deceased's teeth, as well as punching and kicking the deceased. There was also evidence that the appellant had directed or encouraged the others in the assault. The deceased died as a result of the assault. Seven people, including the appellant, were charged with the deceased's murder. Five of those people pleaded guilty to lesser offences, and the charge against a sixth person was dropped. The appellant was tried for murder in the Supreme Court of Victoria. The prosecution case was advanced on two alternative grounds. The principal case was that the appellant was liable for murder by virtue of his participation in a joint criminal enterprise. The alternative case ("the accessorial case") was that the appellant, knowing that one or more people would assault the deceased intending to do him really serious injury, intentionally assisted or encouraged the commission of the fatal assaults. The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Victoria on grounds including that the trial judge erred in her directions concerning the accessorial case and in leaving the accessorial case to the jury. The Court of Appeal dismissed the appeal. The appellant was granted special leave to appeal to the High Court on the sole ground that it was an error to leave the accessorial case to the jury. The appellant submitted that in law he could not be an accessory to murder in circumstances in which the Crown had accepted pleas of guilty to lesser offences from each of the persons said to be the principal offenders. On this submission, there was no "murder" to which he could be an accessory. Alternatively, the appellant submitted that it was an abuse of process for the Director of Public Prosecutions to accept pleas of guilty to lesser offences while prosecuting the appellant as an accessory to murder. The High Court dismissed the appeal. The Court unanimously held that the evidence at the trial was capable of proving that one or more of those whom the appellant directed and encouraged to assault the deceased were liable as principals for the murder. There was no inconsistency between the other participants' convictions for manslaughter and the appellant's conviction for murder on the accessorial case because the evidence in each case differed. Further, the acceptance of the pleas of guilty to lesser offences involved an exercise of prosecutorial discretion. The majority held that certain decisions involved in the prosecution process are insusceptible of judicial review. Nothing in the conduct of the proceedings produced unfairness of the kind that would lead a court to intervene to prevent abuse of its process. |
HIGH COURT OF AUSTRALIA Public Information Officer 3 September 2008 DEPUTY COMMISSIONER OF TAXATION v BROADBEACH PROPERTIES PTY LTD DEPUTY COMMISSIONER OF TAXATION v M.A. HOWARD RACING PTY LTD DEPUTY COMMISSIONER OF TAXATION v NEUTRAL BAY PTY LTD The High Court of Australia today upheld statutory demands for tax debts against three related property development companies, holding that pending challenges to their tax assessments were not a proper basis to set aside the demands. The three corporations, controlled by Mark Howard, were involved in construction and sale of residential apartments. Howard Racing and Neutral Bay failed to pay $6,389,785.75 and $8,433,350.79 respectively for goods and services tax (GST), interest and penalties. On 24 April 2006 a Deputy Tax Commissioner issued them with statutory demands for the debts pursuant to section 459E of the Corporations Act. A similar demand was issued to Broadbeach Properties on 17 May 2006 for $1,679,920.24, its liability under a default assessment of income tax for 2003-04 plus interest for late payment. The tax liability of Howard Racing and Neutral Bay included GST for sales of apartments between the companies. Only new homes never before sold attracted GST. Ordinarily a supply within a group registered for GST did not attract GST. Neutral Bay and Neutral Bay Sales were registered as a group for GST purposes and Howard Racing and Broadbeach were registered as another. The representative companies within each group – Neutral Bay and Howard Racing – claimed sales to Neutral Bay Sales and Broadbeach were not taxable because they were within a group. Because the “first sales” had been sales within the group, they then said that subsequent sales of the same properties to the public did not attract GST. After the Commissioner disallowed objections by the three companies against their assessments and GST declarations, they began Administrative Appeals Tribunal review proceedings in accordance with Part IVC of the Taxation Administration Act. Those proceedings are still pending. The companies also applied pursuant to section 459G of the Corporations Act to the Queensland Supreme Court for orders to set aside the statutory demands pursuant to sections 459H and 459J. Section 459H provided for the setting aside of a statutory demand where there is a “genuine dispute” about the existence or amount of a debt to which the demand related. Section 459J provided that a court may set aside a statutory demand if satisfied that substantial injustice would otherwise occur because the demand is defective or there is “some other reason” to set it aside. Justice Philip McMurdo ordered that the statutory demands be set aside. The Court of Appeal dismissed appeals by the Commissioner, holding that there was a genuine dispute in relation to all three debts. It held that, where the tax liability was challenged by the taxpayer in Part IVC proceedings, a court was not obliged to conclude that there was no genuine dispute as to the existence of the debt. The Commissioner then appealed to the High Court, arguing that Part IVC proceedings neither gave rise to a “genuine dispute” as to the existence or amount of a debt, nor were a proper basis for setting aside a statutory demand for “some other reason” under section 459J. The matters are test cases funded by the Commissioner in all three courts. The Commissioner conceded that a court might have regard to the existence of “reasonably arguable” Part IVC proceedings at a later stage of an application to wind up a company. The High Court unanimously allowed the appeals. It held that the Court of Appeal failed to recognise distinctions between the existence of a debt which was due and payable and the issues and outcome of a Part IVC proceeding. The taxation legislation provided for the tax debts to be due and payable and for the Commissioner to proceed with their recovery notwithstanding the pending review proceedings under Part IVC. Use by the Commissioner of the statutory demand procedure to recover the tax debts was a permissible avenue of recovery. The legislation provided that, except in the Part IVC proceedings, production by the Commissioner of notices of assessment and GST declarations conclusively demonstrated that the amounts and particulars in the assessments and declarations were correct. The operation of tax laws creating the debts and providing for their recovery by the Commissioner could not be avoided by an application under section 459G to set aside a statutory demand issued by the Commissioner. The Court further held that the exercise of discretion by Justice McMurdo relating to “some other reason” under section 459J miscarried and the Court of Appeal erred in upholding and supplementing it, because the taxation legislation permitted the recovery of tax debts, notwithstanding the pending Part IVC proceedings. |
HIGH COURT OF AUSTRALIA 10 August 2022 [2022] HCA 25 Today, the High Court allowed an appeal from a decision of the Full Court of the Supreme Court of South Australia sitting as the Court of Criminal Appeal ("Court of Criminal Appeal"). The issue on appeal was whether the majority of the Court of Criminal Appeal correctly applied the test in M v The Queen (1994) 181 CLR 487 ("M") to determine whether the verdict of guilt in respect of the appellant was unreasonable or could not be supported having regard to the evidence. The appellant was tried and convicted of the murder of his wife, by judge alone, in the Supreme Court of South Australia. The prosecution case was that the appellant had deliberately pushed his wife's wheelchair into a pond in the South Parklands in Adelaide with the intention of drowning her. The defence case was that she had drowned as a result of her wheelchair accidentally entering the water whilst the appellant was attempting to manoeuvre it away from the pond. The issue at trial was whether the prosecution could prove that the appellant murdered his wife, thus excluding accidental drowning as a reasonable possibility. At trial, there was little dispute about the primary facts established by the evidence. The critical question was what inferences could be drawn from those primary facts. The trial judge drew a number of inferences adverse to the appellant and concluded that the only rational inference available on the whole of the evidence was that the appellant deliberately pushed the wheelchair into the pond with intent to kill his wife. The trial judge therefore found the prosecution had proved its case beyond reasonable doubt. The majority of the Court of Criminal Appeal dismissed the appeal against conviction on the unreasonableness ground. Placing particular reliance on reasoning in a decision prior to M, the majority reasoned that the inferences drawn, and the weight to be given to those inferences, were primarily matters for the trial judge as the trier of fact. The High Court unanimously found that the majority of the Court of Criminal Appeal had misapplied the test in M. As a consequence of M, prior formulations of principle on the unreasonableness ground must be approached with caution. What each member of the Court of Criminal Appeal needed to do in order to apply the test in M in the circumstances of this case was to ask whether they were independently satisfied, as a result of their own assessment of the whole of the evidence adduced at trial, that the only rational inference available on that evidence was that the appellant deliberately pushed the wheelchair into the pond with intent to kill his wife and, if not, whether the satisfaction arrived at by the trial judge could be attributed to some identified advantage which the trial judge had over the appeal judge in the assessment of the evidence. The matter was remitted to the Court of Appeal of the Supreme Court of South Australia for rehearing. |
HIGH COURT OF AUSTRALIA 16 May 2018 DWN027 v THE REPUBLIC OF NAURU [2018] HCA 20 Today the High Court unanimously dismissed an appeal from a decision of the Supreme Court of Nauru that the Refugee Status Review Tribunal ("the Tribunal") had not erred in dismissing the appellant's claim for complementary protection under the Refugees Convention Act 2012 (Nr) ("the Refugees Act"). The appellant was a Sunni Muslim man of Pashtun ethnicity from Peshawar in Pakistan where he resided with his wife and young child. He arrived in the Republic of Nauru ("Nauru") and applied to the Secretary of the Department of Justice and Border Control of Nauru ("the Secretary") to be recognised as a refugee under the Refugees Act or, alternatively, as a person to whom Nauru owed complementary protection under the Act. He claimed that he had a well-founded fear of being persecuted by the Taliban by reason of his actual or imputed political opinion. The Secretary rejected the application. The Tribunal affirmed the Secretary's decision on the basis that, while there was a real possibility that if the appellant were returned to Peshawar he would be harmed by the Taliban, it would be reasonable in the circumstances for him to relocate to another area in Pakistan. The Supreme Court dismissed an appeal against the Tribunal's decision. The appellant appealed as of right to the High Court, alleging that the Tribunal had erred in determining his claim for complementary protection by reference to his ability reasonably to relocate within Pakistan, and in failing to take into account a number of integers said to be relevant to the question of whether he could reasonably relocate. The appellant further alleged that the Tribunal erred in determining his claim for complementary protection without having regard to Nauru's international obligation under the Convention on the Rights of the Child (1989) ("the CRC") to give primary consideration to the best interests of his child. The High Court held that, having regard to international jurisprudence, unless the feared persecution emanates from or is condoned or tolerated by State actors (which was not an issue in this case), an applicant's ability reasonably to relocate within his or her country of origin, including the ability safely and legally to travel to the place of relocation, is relevant to whether the applicant is in need of complementary protection. It was also held that the Tribunal had not failed to take into account the factors relevant to the appellant's ability reasonably to relocate within Pakistan. Further, the Court held that it was unnecessary to decide whether the Tribunal were bound to give primary consideration to the best interests of the appellant's child under the CRC because the appellant did not contend before the Tribunal that they were bound to decide his claim for complementary protection by reference to the best interests of his child and, consequently, he did not adduce any persuasive evidence that his child's best interests would be adversely affected by the refusal of his claim. The Court therefore dismissed the appeal. |
HIGH COURT OF AUSTRALIA 15 June 2016 [2016] HCA 25 Today the High Court unanimously dismissed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales. The High Court held that the general rule – that the appellate court's assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of post-sentence conduct – applied to the appellant's case. However, the Court noted that the general rule does not deny that an appellate court has the flexibility to receive new evidence where it is necessary to do so to avoid a miscarriage of justice. On 17 April 2010, the appellant stabbed the complainant, his former partner, some 28 times in a sustained attack. He pleaded guilty in the District Court of New South Wales to wounding with intent to murder, and detaining the complainant without her consent with intent to obtain a psychological advantage, and immediately before the detaining, occasioning actual bodily harm to her. For the offence of wounding with intent, the appellant was sentenced to 16 years' imprisonment with a non- parole period of 11 years. He was sentenced to a concurrent eight year term of imprisonment for the detaining offence. The appellant appealed to the Court of Criminal Appeal against the severity of the sentences. At the commencement of the hearing in that Court, the appellant produced a folder of additional material on the basis that it would be admissible in the event that the Court came to re-sentence the appellant. The prosecutor did not object to the Court receiving the additional material "on the usual basis". The additional material included a report by Dr Nielssen, a psychiatrist. He opined that the appellant’s intoxication with a hallucinogenic drug, together with an underlying emotional state shaped by violence and sexual abuse in childhood, and a pattern of substance use, significantly contributed to his offending behaviour. Having found error in the trial judge's application of sentencing principle, the Court of Criminal Appeal turned to consider the exercise of its sentencing discretion. The Court declined to take into account Dr Nielssen's opinion concerning factors that may have caused or contributed to the commission of the offences, holding that the sentence hearing had been the occasion to address these matters. By grant of special leave, the appellant appealed to the High Court. The appellant contended that the Court of Criminal Appeal erred in refusing to take into account Dr Nielssen's opinion. The High Court held that Dr Nielssen's opinion was based on a history which seemed to depart from the agreed facts on which the appellant was sentenced, and that his opinion that the appellant was in a psychotic state, or its equivalent, appeared to traverse the appellant's pleas. Their Honours held that nothing in the additional material supported the appellant's submission that the Court of Criminal Appeal’s refusal to permit him to run a different case before it had occasioned a miscarriage of justice. |
HIGH COURT OF AUSTRALIA 28 January 2015 CPCF v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2015] HCA 1 Today the High Court, by majority, held that a claim for damages for false imprisonment arising out of the plaintiff's detention at sea on a Commonwealth vessel should be dismissed. The majority of the Court held that s 72(4) of the Maritime Powers Act 2013 (Cth) authorised a maritime officer to detain the plaintiff for the purpose of taking him from Australia's contiguous zone to a place outside Australia, being India. Section 72(4) states that a maritime officer may detain a person on a detained vessel and take the person, or cause the person to be taken, to a place outside Australia. The plaintiff and 156 other passengers were on board an Indian flagged vessel which left India and was intercepted by an Australian border protection vessel in the Indian Ocean within Australia's contiguous zone. The plaintiff is a Sri Lankan national of Tamil ethnicity, who claims to be a refugee on the basis of having a well-founded fear of persecution in Sri Lanka. He did not have a visa entitling him to enter Australia. The Indian vessel and its passengers were detained by officers of the Commonwealth. After the Indian vessel became unseaworthy, the passengers were transferred to the Australian vessel. The plaintiff was not asked whether he claimed to be a person in respect of whom Australia owed non-refoulement obligations. The Australian vessel sailed to India pursuant to a decision made by the National Security Committee of Cabinet, which included the Minister for Immigration and Border Protection. At this time, there was no agreement with India under which the plaintiff would be permitted to disembark there. After reaching the vicinity of India, the passengers were detained for a further period until the Minister decided that it was not practicable to discharge the plaintiff and his companions in India within a reasonable time and instructed the vessel to sail to the Australian Territory of the Cocos (Keeling) Islands. Upon their arrival, the plaintiff and the other passengers were taken into immigration detention. The plaintiff brought proceedings in the original jurisdiction of the High Court, alleging that his detention on the Australian vessel was unlawful and claiming damages for wrongful imprisonment. A special case stated questions of law for determination by the Full Court. The Court held, by majority, that the detention was lawful under s 72(4) of the Maritime Powers Act and that the power under s 72(4) was not subject to an obligation to afford the plaintiff procedural fairness. The detention was lawful even though the maritime officer detained the plaintiff in implementation of a decision by the Australian Government, and without independent consideration of whether the detention should have taken place. The detention was also lawful even though, prior to the commencement of the taking of the plaintiff to India, no arrangement existed between Australia and India concerning the reception of the plaintiff in India. The majority found it unnecessary to determine whether the detention could have been authorised by the non- statutory executive power of the Commonwealth. |
HIGH COURT OF AUSTRALIA 10 December, 2003 NOEL JEBATHILAKAN ARULTHILAKAN v THE QUEEN CHISEKO MARK MKOKA v THE QUEEN The High Court of Australia, by a 4-1 majority, today dismissed appeals from two men convicted of murder, wounding with intent to grievous bodily harm and attempted armed robbery following a bungled bid to steal a mobile phone. The men were convicted, along with a third man, Carlos Escalante, who pleaded guilty, in the South Australian Supreme Court, and appealed unsuccessfully to the SA Court of Criminal Appeal. They appealed to the High Court only on their murder convictions. Five men in a stolen car driving through Stepney in Adelaide looked for someone to rob of a mobile phone. When they spotted Matthew Bourne and Colin Hugh Hillam, who was speaking on a mobile, Mr Arulthilakan, Mr Mkoka and Mr Escalante approached them. Mr Mkoka carried a cosh – a cue ball in a sock – and a knife passed to him by Mr Arulthilakan. Mr Escalante also carried a knife, which was used to stab Mr Hillam and Mr Bourne during the tussle over the phone. Mr Hillam was stabbed four times, receiving serious wounds to his chest and side. Mr Mkoka admitted attacking Mr Bourne with the cosh and kicking him as he lay on the ground. Mr Escalante allegedly stabbed Mr Bourne in the heart, and he died of rapid blood loss. The central issue in the appeal concerned the complicity of Mr Arulthilakan and Mr Mkoka in Mr Escalante’s stabbing of Mr Bourne. The defence case was that the stabbing of Mr Bourne was an independent act by Mr Escalante, done in the heat of an affray, and after any robbery attempt had ceased. The prosecution case was the use of the knife was part of the armed robbery, and resistance from the two victims was foreseeable, for which the men had armed themselves. Under the SA criminal code, a person intentionally committing a violent act while engaged in a major indictable offence – such as armed robbery – which results in another person’s death is guilty of murder. The High Court held that trial judge Justice Bruce Debelle technically misdirected the jury in telling them that as a matter of law Mr Escalante producing the knife was an act of violence when it should have been left as a question of fact for the jury, but the majority held that it did not give rise to a miscarriage of justice, since no other view of the facts was reasonably open. The appellants also argued that Justice Debelle’s directions withdrew from the jury’s consideration the issue of whether the production of the knife was a significant cause of Mr Bourne’s death, but the majority rejected their argument. The majority held that, after Mr Escalante presented the knife, it was open to the jury to reason that the victims’ resistance, the struggle and the fatal stabbing were all part of a brief sequence of events resulting from the act of violence. |
HIGH COURT OF AUSTRALIA Manager, Public Information 5 August 2009 ACQ PTY LTD v GREGORY MICHAEL COOK & ANOR AIRCAIR MOREE PTY LTD V GREGORY MICHAEL COOK & ANOR [2009] HCA 28 Today the High Court dismissed appeals by ACQ Pty Ltd and Aircair Moree Pty Ltd, the owner and operator of a crop-dusting aircraft. They had appealed against findings that they were liable for damages to Gregory Cook for serious injuries he suffered when he received an electric shock from a power line knocked down by the aircraft. On 28 December 2000 the aircraft was crop dusting a cotton field over which a high voltage conductor hung at a height of at least 6.2 metres. During the flight the aircraft struck the conductor. It was dislodged from its supporting pole and left hanging about 1.5 metres above the ground. The responsible energy company (at the time – NorthPower; now known as Country Energy) sent two employees – Mr Cook and Mr Buddee – to deal with the dislodged conductor. The two men agreed that Mr Buddee would drive to a links site about seven kilometres away and isolate the conductor, after which Mr Cook would commence an assessment of the situation in the cotton field. Despite this Mr Cook entered the field before the conductor had been isolated. The ground in the field was uneven and very boggy. Mr Cook stumbled in the muddy conditions. He fell close to the conductor, received an electric shock and was badly injured. Section 10 of the Damage by Aircraft Act 1999 (Cth) (DAA) provides that both the operator and the owner of an aircraft are liable if a person suffers an injury caused by, amongst other things, something that is the result of an impact with an aircraft that was in flight immediately before the impact happened. The effect of section 11 of the DAA is that damages are recoverable from both the owner and the operator of the aircraft in respect of an injury to which section 10 applies without the injured person having to prove that the injury had been caused by the owner’s and the operator’s wilful actions, negligence or default. Mr Cook sued both ACQ and Aircair for damages pursuant sections 10 and 11 of the DAA. He was successful before the primary judge in the District Court of New South Wales, who awarded him damages of $953,141.00. The Court of Appeal of the Supreme Court of New South Wales dismissed ACQ’s and Aircair’s appeals. The High Court granted both ACQ and Aircair special leave to appeal. The appeals raised the issue of what had “caused” Mr Cook to suffer injury. ACQ and Aircair acknowledged that Mr Cook would not have been in the field except for the fact that the aircraft impacted the conductor and dislodged it. However they argued that, even though the dislodged conductor was potentially unsafe, there would have been no danger to Mr Cook if he had not voluntarily departed from his agreement with Mr Buddee to do nothing until the conductor had been isolated. While they did not argue contributory negligence, ACQ and Aircair submitted that there was not a close enough temporal, geographical and relational connection between the dislodgement of the conductor and the injuries Mr Cook suffered. In a unanimous decision the High Court rejected these arguments. The Court considered it did not strain the language of the DAA to characterise the events following the impact of the aircraft with the conductor as having “caused” Mr Cook’s injuries. The Court concluded that Mr Cook’s injuries were caused by the dangerous position of the conductor. The conductor was in a dangerous position because the aircraft had struck it. The High Court dismissed both appeals and ordered ACQ and Aircair to pay Mr Cook’s costs of the appeals. |
HIGH COURT OF AUSTRALIA 12 August 2015 TOMLINSON v RAMSEY FOOD PROCESSING PTY LTD [2015] HCA 28 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales. The High Court held that declarations and orders made by the Federal Court of Australia in proceedings commenced by the Fair Work Ombudsman ("the Ombudsman") against the respondent did not create an issue estoppel precluding the appellant from asserting that the respondent was not his employer in a subsequent proceeding. The appellant was employed by the respondent to work in its abattoir. The appellant was later informed that his employment was at an end and that he would be employed by Tempus Holdings Pty Ltd, which would provide labour services to the respondent. The appellant was subsequently made redundant. He complained to the Ombudsman that certain statutory entitlements had not been paid to him and the Ombudsman commenced proceedings against the respondent in the Federal Court. The principal issue in those proceedings was whether the respondent or Tempus had been the appellant's employer. The Federal Court declared that the respondent had been the appellant's employer and ordered the respondent to pay the appellant's entitlements. The appellant subsequently commenced proceedings against the respondent in the District Court of New South Wales claiming damages in negligence for a personal injury he sustained while working at the abattoir. He contended that Tempus had been his employer, but that the respondent, as the party in control of the workplace, owed him a duty of care akin to that owed by an employer. If the respondent had been the appellant's employer, the appellant would have been prevented from bringing the claim, or from recovering damages, by New South Wales legislation governing the management of, and limiting recovery for, workplace injuries. The respondent argued that the appellant was estopped by the declarations and orders made in the Federal Court proceedings from denying that the respondent was his employer or, alternatively, that the respondent was in fact the appellant's employer. The District Court rejected the respondent's issue estoppel argument and found on the evidence that Tempus had been the appellant's employer. On appeal, the Court of Appeal determined that the declarations and orders of the Federal Court created an estoppel binding on the appellant by reason of the appellant having been "privy" in interest with the Ombudsman in the Federal Court proceedings according to the principle stated by this Court in Ramsay v Pigram (1968) 118 CLR The High Court held that the Court of Appeal erred in concluding that the Ombudsman was the appellant's privy in the Federal Court proceedings, as the Ombudsman was not enforcing payment of the appellant's entitlements "under or through", or "on behalf of", the appellant. In commencing proceedings against the respondent, the Ombudsman was acting pursuant to his statutory power to enforce the Workplace Relations Act 1996 (Cth) and awards made under that Act. That power was not derived from the appellant or his entitlements, and, in exercising it, the Ombudsman was not representing the appellant's legal interests. By majority, the High Court remitted the matter to the Court of Appeal for determination of an outstanding issue. |
HIGH COURT OF AUSTRALIA 15 April 2015 DUNCAN v THE STATE OF NEW SOUTH WALES NUCOAL RESOURCES LIMITED v STATE OF NEW SOUTH WALES CASCADE COAL PTY LIMITED & ORS v THE STATE OF NEW SOUTH WALES [2015] HCA 13 Today the High Court unanimously upheld the validity of certain provisions of Sched 6A to the Mining Act 1992 (NSW), which cancelled, without compensation, three specified exploration licences issued under the Mining Act. Schedule 6A was inserted into the Mining Act by the Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW) ("the Amendment Act"), which was enacted following consideration by both Houses of the New South Wales Parliament of reports prepared by the Independent Commission Against Corruption. Those reports contained findings that a number of individuals had engaged in corrupt conduct in relation to the grant of the exploration licences, and that the licences were so tainted by corruption that they should be cancelled. By special case in three separate proceedings in the original jurisdiction of the High Court, the corporate licensees of two of the cancelled exploration licences and their parent company ("the Cascade proceedings"), a former director of that parent company ("the Duncan proceedings") and the parent company of the corporate licensee of the other cancelled exploration licence ("the NuCoal proceedings"), challenged the validity of Sched 6A as inserted by the Amendment Act. In each proceeding, it was contended that the Amendment Act involved the legislative exercise of judicial power in the nature of, or akin to, a bill of pains and penalties, and that such an exercise of power contravened an implied limitation on State legislative power deriving either from Ch III of the Commonwealth Constitution or an historical limitation on colonial, and subsequently State, legislative power. In the Cascade and Duncan proceedings, it was contended that the Amendment Act is not a law within the meaning of s 5 of the Constitution Act 1902 (NSW). In the Cascade and NuCoal proceedings, it was contended that a provision of the Amendment Act, relating to the use and disclosure of information required to be provided by the licensees, is inconsistent with provisions of the Copyright Act 1968 (Cth) and was therefore inoperative to the extent of that inconsistency by force of s 109 of the Commonwealth Constitution. The Court held that the Amendment Act is a law within the competence of the New South Wales Parliament because the grant of legislative power by s 5 of the Constitution Act 1902 (NSW) implied no relevant limitation as to the content of an enactment of that Parliament. It also held that the Amendment Act did not involve the exercise of judicial power and did not bear the characteristics of a bill of pains and penalties. The existence and scope of any implied limitation on the ability of a State Parliament to exercise judicial power did not, therefore, arise for consideration. It was unnecessary for the Court to address the contention concerning s 109 of the Commonwealth Constitution because it was not shown by the facts agreed in the special cases to be the subject of real controversy. |
HIGH COURT OF AUSTRALIA 5 June 2013 KAKAVAS v CROWN MELBOURNE LIMITED (ACN 006 973 262) & ORS [2013] HCA 25 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria, which held that Crown Melbourne Limited ("Crown") did not act unconscionably in allowing the appellant to gamble and lose large sums of money at its casino. The appellant was a high-stakes gambler and regular patron of Crown's casino. Between June 2005 and August 2006, he turned over $1.479 billion playing baccarat at the casino. He brought a claim to recover his net loss of $20.5 million over that period. The appellant issued proceedings against Crown and two of its employees in the Supreme Court of Victoria, claiming that they had engaged in unconscionable conduct contrary to s 51AA of the Trade Practices Act 1974 (Cth) and under the general law. At trial, the appellant alleged that Crown had lured him, a known problem gambler, to gamble at its casino by providing incentives, such as rebates on losses and the use of Crown's private jet. In dismissing the appellant's claims, the primary judge held that the appellant's gambling problem was not a kind of special disadvantage that rendered him susceptible to exploitation. Further, Crown had not sought to exploit, nor was there any scheme to exploit, any disadvantage from which the appellant might suffer. On appeal, the Court of Appeal held that the appellant had failed to demonstrate that the primary judge's conclusion, that he was not in a position of special disadvantage, was erroneous, or that the wagering transactions that he engaged in with Crown were unfair, unjust or unreasonable. The Court of Appeal upheld the primary judge's finding that Crown was entitled to accept the appellant as he presented himself to it: a successful businessman entirely capable of making decisions in his own interests. The appellant appealed by special leave to the High Court. In the High Court, the appellant did not seek to challenge any findings of fact made by the primary judge. His argument shifted emphasis to a claim that Crown, by allowing him to gamble at its casino, had exploited his inability, by reason of his pathological urge to gamble, to make worthwhile decisions in his own interests while actually engaged in gambling. The High Court dismissed the appeal and concluded that the appellant's attempt to invoke principles of unconscionability failed. The Court did not accept that the appellant's pathological interest in gambling was a special disadvantage which made him susceptible to exploitation by Crown. He was able to make rational decisions in his own interests, including deciding from time to time to refrain from gambling altogether. Crown did not knowingly victimise the appellant by allowing him to gamble at its casino. |
HIGH COURT OF AUSTRALIA 29 May 2020 PICKETT v THE STATE OF WESTERN AUSTRALIA; MEAD v THE STATE OF WESTERN AUSTRALIA; MEAD v THE STATE OF WESTERN AUSTRALIA; ANTHONY v THE STATE OF WESTERN AUSTRALIA; TSM (A CHILD) v THE STATE OF WESTERN AUSTRALIA [2020] HCA 20 Today the High Court unanimously dismissed five appeals from a judgment of the Court of Appeal of the Supreme Court of Western Australia. The appeals concerned whether ss 7(b), 7(c) and 8 of the Criminal Code (WA) ("the Code") apply to render an enabler or an aider, or a party to an unlawful common purpose, guilty of murder where the deceased may have been killed by a child who was not proven to be criminally responsible for the killing under s 29 of the Code. On 27 January 2016 at about 3.30 am, a group of eight males ("the Appellants' Group"), which included the five appellants and PM, who was aged 11 at the time, were involved in the assault of Patrick Steven Slater ("the Deceased") on the first floor of The Esplanade Train Station complex in Perth. Each of the eight members of the Appellants' Group were captured by CCTV footage proceeding to the first floor of The Esplanade Train Station complex holding weapons or objects that could be used as weapons; however, there was no CCTV footage of the assault. One member of the Appellants' Group used a screwdriver to stab the Deceased in the chest, causing him to bleed to death shortly afterwards. Each of the eight males of the Appellants' Group was charged with murder. The five appellants pleaded not guilty and were tried together in the Supreme Court of Western Australia before a judge and a jury. PM was tried separately in the Children's Court of Western Australia. At the trial of the appellants, the case for the prosecution was put on the basis that one member of the Appellants' Group inflicted the fatal stab wound, and only that person caused the death of the Deceased under s 7(a) of the Code, while each of the other seven males in the Appellants' Group was deemed to have taken part in committing the offence as an enabler or an aider, or a party to an unlawful common purpose, under s 7(b), s 7(c) or s 8 of the Code. Sections 7 and 8 of the Code operate when "an offence is committed". At the appellants' trial, the prosecution had not proved beyond reasonable doubt that it was a person other than PM who stabbed the Deceased. Under s 29 of the Code, because PM was under the age of 14 at the time of offending, but over the age of ten, he could not be criminally responsible for his acts in killing the Deceased unless it was proved by the prosecution that, at the time of the killing, he had the capacity to know that he ought not to do the act. The prosecution adduced no evidence to establish PM's capacity. The trial judge declined to direct the jury that they could not convict the appellants of murder unless they were satisfied beyond reasonable doubt that PM was not the person who stabbed the Deceased. Each of the appellants was convicted of murder. The majority of the Court of Appeal held that the appellants were rightly convicted of murder by operation of s 7(b), s 7(c) or s 8 of the Code notwithstanding that PM, as the hypothetical killer, was not criminally responsible for killing the Deceased. By grant of special leave, the appellants appealed to the High Court. The Court unanimously held that the expression "an offence " in ss 7 and 8 of the Code refers to the act or omission which constitutes the offence, not the criminal responsibility of the actor. The Court held that the liability to punishment of each of the appellants for murder by operation of s 7(b), s 7(c) or s 8 of the Code did not depend upon either the criminal responsibility of PM, and thus proof beyond reasonable doubt that he had capacity under s 29, or proof beyond reasonable doubt that he did not stab the Deceased. Accordingly, the trial judge did not err in declining to instruct the jury that it did. |
HIGH COURT OF AUSTRALIA Public Information Officer 7 October, 2003 TANWAR ENTERPRISES PTY LIMITED v JOSEPH CAUCHI, ANGELO CAUCHI, MARY CAUCHI AND JULIAN DALLEY JOSEPH JOHN ROMANOS AND JOSEPH JOHN ROMANOS AS EXECUTOR OF THE ESTATE OF THE LATE TERESA ROMANOS v PENTAGOLD INVESTMENTS PTY LIMITED AND MAROON BROTHERS INVESTMENTS PTY LIMITED The High Court of Australia today handed down two judgments in favour of property vendors who terminated contracts of sale after the purchasers failed to observe stipulations as to time for performance. In the first case, Tanwar arranged to buy three parcels of land at Glenwood, near Blacktown in Sydney, from the Cauchis and Mr Dalley for a total purchase price of $4.5 million. The vendors terminated the contracts on June 26, 2001, after Tanwar failed to complete the contract by 4pm the day before. Tanwar had still been arranging Singaporean finance which was finalised on June 26, but the vendors refused to proceed. Tanwar had paid a 10 per cent deposit, another $397,473.40 towards the purchase price and $80,000 in consideration of an earlier extension of time. A revised contract had stipulated that time was of the essence and that Tanwar would forfeit all money already paid if the sale was not completed on June In the second case, investment companies Pentagold and Maroon Brothers exchanged contracts with Joseph and Teresa Romanos for the sale of three adjoining parcels of land at Harris Park, near Parramatta in Sydney, for a total purchase price of $1.875 million. The buyers planned to build 24 units and sought development approval from Parramatta Council. Time for completion was extended to March 1, 2001, and the buyers paid a total of $50,000 towards the 10 per cent deposit. The balance of the deposit, $137,500, was payable upon approval of the development application. The purchasers received notice of the approval on December 1, 2000. The vendors terminated the contracts on December 19. In both cases, the purchasers sought specific performance of the contracts but their claims were rejected by Justice William Windeyer in the New South Wales Supreme Court. However, Justice Windeyer ordered the Romanoses to return the $50,000 deposit. In the Tanwar case, the NSW Court of Appeal unanimously dismissed its appeal. In the Pentagold-Maroon Brothers case, a differently constituted Court of Appeal, by majority, allowed their appeal and dismissed a cross-appeal by the Romanoses. Tanwar and Joseph Romanos appealed to the High Court. The High Court unanimously dismissed Tanwar’s appeal and allowed the Romanos appeal. It held that the stipulations as to time were to be applied according to their terms. Of Tanwar, the Court held that there was no relevant breach of contract by the vendors and they exercised a contractual right to terminate the contract and had not acted unconscionably. In the Romanos case, the Court held that Justice Windeyer erred in ordering the return of the deposit where there was a lack of evidence that it was unjust for the Romanoses to retain the deposit. It ordered that the deposit be forfeited to Mr Romanos. |
HIGH COURT OF AUSTRALIA 21 April 2004 MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v RESPONDENTS Attacks and abuse by some Ukrainians on people engaging in Jehovah’s Witness activities were not shown to involve persecution, the High Court of Australia held today, in rejecting a claim for refugee status. The respondents, who cannot be named by courts under section 91X of the Migration Act, are a Ukrainian de facto couple. The husband became involved with the Jehovah’s Witnesses in May 1998 and began distributing publications and engaging in other forms of proselytising. As well as meeting hostility, he was set upon and beaten twice by groups of males, his front door was set alight, and was sacked from his job. The wife is not a Jehovah’s Witness. The couple left for Australia in December 1998 and applied for protection visas. Their applications were rejected by the Immigration Department, the Refugee Review Tribunal and the Federal Court of Australia but the respondents appealed successfully to the Full Court of the Federal Court. The Full Court unanimously held that the RRT failed to consider the right question, that is, whether in a practical sense the State was able to protect the man from harm. The Minister appealed to the High Court. The husband claimed the Ukrainian government encouraged persecution of Jehovah’s Witnesses and that police condoned such violence. Their claims were rejected by the RRT. The question then was whether there was a failure by the Ukrainian State in its protection obligations. The RRT noted that country information by the United States State Department, the British Home Office and Australia’s Department of Foreign Affairs has never carried the suggestion that the Ukrainian government was not in control or that the police and judiciary were not reasonably fair and effective. That information also indicated the government allowed religious freedom, including for more than 100,000 Jehovah’s Witnesses. The church itself did not claim to be persecuted in the Ukraine. The RRT regarded the assaults as random and uncoordinated incidents. It found the police responded appropriately when the man called them after one attack but he was unable to identify his attackers. The RRT had no evidence that the man sought the protection of Ukrainian authorities, either in the Ukraine or after he arrived in Australia. The High Court held that the RRT was not in error and overturned the decision of the Full Court of the Federal Court. It unanimously allowed the Minister’s appeal. |
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