Grants of Special Leave to Appeal in the High Court of Australia

Last Friday the High Court of Australia granted Special Leave to Appeal in 5 cases.

Monis v The Queen; Droudis v The Queen is an appeal from the NSW Court of Criminal Appeal in which the Court held that the offence of using a postal service to menace, harass or cause offence (section 471.12 of the Commonwealth’s Criminal Code), does not infringe upon the implied constitutional freedom of political communication. The Court held that the while the law effectively burdens the freedom, it does so in a way that is consistent with the maintenance of the system of government prescribed by the Constitution.

Westfield Management Ltd v AMP Capital Property Nominees Ltd is an appeal from the NSW Court of Appeal arising out of a dispute between UniSuper and Westfield whether to wind-up their joint venture investment scheme in the Karrinyup Regional Shopping Centre in Perth.  At issue is whether or not the Unitholders’ and Joint Venture Agreement properly construed has the effect that UniSuper cannot vote to wind-up the scheme under section 601NB of the Corporations Act without the prior written consent of Westfield, and if so whether the Agreement is to that extent unenforceable as being contrary to the public interest.

Google Inc v ACCC is an appeal from the Full Court of the Federal Court of Australia in which the principal issue is whether Google has engaged in misleading and deceptive conduct as a result of displaying an advertiser’s web address as a sponsored link in response to an enquiry made of the Google search engine by search terms which consist of or include the name of a competitor of the advertiser. This conduct is said to amount to a misrepresentation of a commercial affiliation between the advertiser and its competitor by displaying the advertiser’s web address in collocation with information concerning the competitor.

Montevento Holdings Pty Ltd v Scaffidi is an appeal from the Western Australia Court of Appeal.  At issue is whether or not it was open to an Appointor who was a beneficiary of a discretionary trust to appoint a Trustee where the effect of the purported appointment was to give the Appointor/beneficiary control of the office of Trustee.  While this is a question of construction of the particular trust deed, it may have broader ramifications for the drafting of discretionary family trusts generally.

Stanford v Stanford is an appeal from the Full Court of the Family Court of Australia.  At issue in this case is whether (and if so in what circumstances) the Family Court has jurisdiction to make an order for property settlement pursuant to section 79 of the Family Law Act 1975 where a marriage is still intact but where a physical separation has been forced upon the parties by reason of one of the parties’ health.  The circumstances of the elderly parties in this case were such that the wife, by reason of her physical and mental frailty, required high care in a nursing home. In contrast, the husband was of considerably good health and wished to remain living in this home, which was within his ability. The proceedings were initiated by the wife’s daughters who asked that the former matrimonial home be sold so that the proceeds of sale could be spent on care for their mother. The appeal to the High Court would seem to raise the constitutional question of whether, in the circumstances of this case, there is a “matrimonial cause” within the meaning of section 51(xxii) of the Constitution.

High Court's judgment in King v The Queen

Yesterday, the High Court of Australia delivered judgment in King v The Queen.

Under section 318 of the Victorian Crimes Act 1958 a person drives a motor vehicle culpably if they drive negligently (that is to say, if they fail unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case) or if they were under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.

In a trial for culpable driving, there is an alternative verdict available to the jury so that if the jury is not satisfied that the person is guilty of culpable driving, they can nonetheless convict the person of the lesser offence of dangerous driving causing death under section 319 of the Crimes Act 1958.

Mr King was tried and convicted of two counts of culpable driving.  In his appeals, he did not challenge the trial judge’s summing-up to the jury in relation to the offence of culpable driving.  Instead, he complained that the trial judge had pitched the standard of dangerous driving, necessary for conviction of the lesser offence, at such an erroneously low level of culpability that the jury would have been less inclined to consider convicting him of that offence.  The trial judge’s direction was in the following terms:

There are two important differences between the offence of culpable driving causing death, and dangerous driving causing death that reflect the fact that the offence of culpable driving causing death is a more serious offence. First, the Crown must prove beyond reasonable doubt that the accused drove in a way that significantly increased the risk of harming others. There does not have to be a high risk of death or serious injury. That is only a requirement for culpable driving causing death by gross negligence. And secondly, unlike the offence of culpable driving causing death by gross negligence, in relation to the offence of dangerous driving causing death the Crown does not have to satisfy you that the driving is deserving of criminal punishment. The second element will be met as long as you find that the accused drove in a speed or manner that was dangerous to the public.

Thus, King complained that because it was said that dangerous driving did not require the jury to be satisfied “that the driving is deserving of criminal punishment”, if the jury thought that his driving in fact was deserving of criminal punishment then the jury would not have considered the alternative verdict.  In other words, it had the potential to cause the jury to discount the alternative verdict as an inadequate reflection of the seriousness of King’s conduct. As Heydon J observed, “To minds not steeped in a lifetime's experience of the criminal law, this complaint may seem strange.”

There is, of course, a logical difficulty with King’s argument, and in particular his apparent satisfaction with the direction given in relation to the culpable driving offence. 

In any event, the majority in the High Court (French CJ, Crennan and Kiefel JJ, Heydon J and Bell J dissenting) held that properly understood the direction did not amount to a misstatement of the law, and that any confusion that might have been caused by its infelicitous wording did not amount to a miscarriage of justice warranting intervention.

National Schools Chaplaincy Program invalid - for now

Today the High Court delivered judgment in Williams v Commonwealth, in which the Williams challenged the National School Chaplaincy Program.  In a 6-1 decision, the High Court upheld Williams’ challenge to the NSCP.

The NSCP is administered by the Commonwealth Department of Education, through a series of funding agreements concerning specific schools.  The NSCP Guidelines identify the organisations that are entitled to enter into funding agreements for the purposes of the NSCP.  Participation in the NCSP by schools is voluntary, as is participation by individual students if schools receive funding. 

The “chaplaincy” services governed by the NCSP include “general religious and personal advice to those seeking it, and providing comfort and support to students and staff, such as during times of grief” and “supporting students and staff to create an environment of cooperation and respect, and promoting an understanding of diversity and the range of religious affiliations and their traditions.”  They are provided by person recognised as being appropriately skilled to provide such services by a “religious institution or a state/territory government approved chaplaincy service” and in some circumstances secular pastoral care workers may be employed.

Upon its inception in 2007 the NSCP made available funding of up to $30 million per annum for three years, to be distributed to government and non-government schools in the form of grants of up to $20,000 per annum, for the purpose of either establishing school chaplaincy services, or enhancing existing services.  In 2009 the NSCP was extended by the Commonwealth to provide for an additional $42 million for the 2010 and 2011 school years.

On 9 November 2007 the Commonwealth and Scripture Union Queensland entered into a Funding Agreement for the provision by SUQ of chaplaincy services in accordance with the NSCP Guidelines.

Williams is the father of students at the Darling Heights State School in Queensland, a school that receives chaplaincy services provided by SUQ.  He challenged the validity of the NCSP on the following main grounds (each of which raises a number of subsidiary issues):

• Does the entry into the Funding Agreement exceed the executive power of the Commonwealth, and in particular does the executive power of the Commonwealth extend to entering into contracts in respect of matters that go beyond the legislative power of the Commonwealth;
• Do the NCSP Guidelines impose a religious test as a qualification for an office under the Commonwealth, and thereby contravene section 116 of the Constitution?

Standing

An initial challenge was made by the Commonwealth to the question of whether or not Williams had sufficient standing to challenge the Funding Agreement, the drawing of money from Consolidated Revenue, or the making of payments pursuant to the Funding Agreement. It was held that Williams did have standing to challenge the Funding Agreement, and the payments made pursuant to that agreement, and that is was unnecessary to answer whether he had standing to challenge the drawing of money from Consolidated Revenue. 

Each of French CJ, Hayne, Crennan and Kiefel JJ, purportedly agreed with the reasons of Gummow and Bell JJ for arriving at these conclusions.  However, Gummow and Bell JJ don’t actually give any reasons for doing so.  They simply assert that as the plaintiff’s position was supported by the State interveners pursuant to their right of intervention, “the questions of standing may be put to one side”.

Although in dissent more generally, Heydon J agreed that Williams had standing to challenge the Funding Agreement, and the payments made pursuant to the agreement.  This was because Williams, as the father of his children, had a “special interest” (if only as a matter of conscience) in the activities within the school of the “chaplain”, who also participated in conventional teaching activities, and which were being paid for pursuant to the Funding Agreement.

Executive power of the Commonwealth

Although the central question in the proceedings occupied a great deal of time in oral and written submissions, and necessitated the consideration of a great deal of prior authority of the Court, analysis of the scope of executive power at the time of Federation, and a large body of academic literature, in the end the holding of the Court is a relatively narrow one on the Executive Power of the Commonwealth conferred by section 61, which reads:  “The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.” 

In its simplest terms, the Court held that section 61 of the Constitution does not confer upon the Commonwealth a power to enter into contracts except to the extent that such contracts are expressly or impliedly authorised by the Constitution, or by legislation. 

As French CJ was at pains to emphasise, and Gummow and Bell JJ also indicated, that conclusion says nothing about the availability of constitutional mechanisms, including conditional grants to the States under section 96 of the Constitution and inter-governmental agreements supported by legislation, which might enable such services to be provided in accordance with the Constitution of the Commonwealth and the Constitutions of the States.  Nor does it say anything about the power of the Commonwealth to enter into contracts and expend moneys in the administration of departments of State pursuant to section 64 of the Constitution, in the exercise of powers defined by reference to such of the prerogatives of the Crown as are properly attributable to the Commonwealth, or in the exercise of inherent authority derived from the character and status of the Commonwealth as the national government. 

What was rejected was the unqualified proposition that, subject to parliamentary appropriation, the executive power of the Commonwealth extends generally to enable it to enter into contracts and undertake expenditure of public moneys relating to any subject matter falling within a head of Commonwealth legislative power.

The judgment of French CJ is notable for its emphasis upon the federal nature of the Constitution.  In several parts of the judgment emphasis was placed upon the adverse consequences for federalism in accepting the broad proposition that the Commonwealth, in common with any other legal person, has the capacity at common law to enter into contracts (the limits to this being only that its capacity to enter into and pay moneys pursuant to those contracts is constrained by the need for an appropriation and by the requirements of political accountability).  Such a general power would be inconsistent with the federal conception that informed the function of the Senate as a necessary organ of Commonwealth legislative power, and would undermine parliamentary control of the executive branch and weaken the role of the Senate.

Gummow and Bell JJ also derived support for their rejection of the Commonwealth’s unqualified proposition, noting that its acceptance would:

undermine the basal assumption of legislative predominance inherited from the United Kingdom and so would distort the relationship between Ch I and Ch II of the Constitution. No doubt the requirement of s 64 of the Constitution that Ministers of State be senators or members of the House of Representatives has the consequence that the Minister whose department administers an executive spending scheme, such as the NSCP, is responsible to account for its administration to the Parliament. This is so whether the responsibility is to the chamber of which the Minister is a member or to the other chamber, in which the Minister is “represented” by another Minister. But there remain considerations of representative as well as of responsible government in cases where an executive spending scheme has no legislative engagement for its creation or operation beyond the appropriation process. And that appropriation process requires that the proposed law not originate in the Senate, and that the proposed law appropriating revenue or moneys “for the ordinary annual services of the Government” not be amended by the Senate.

The necessity of Parliamentary control over the expenditure of public moneys was also a feature of the judgment of Hayne J in rejecting the broad submission that the Executives power to spend money lawfully appropriated was unlimited, that control being exercised not simply by its “power over appropriation” but also by “control over the actual expenditure of the sums appropriated”. 

However, Hayne J did not determine the issue considered by French CJ and Gummow and Bell JJ as determinative.  His Honour was content to determine the case on the basis that the Commonwealth did not have the legislative power under either the trading corporations power - s51(xx), or the student benefits power - s51(xxiiiA) to authorize the entry into the Funding Agreement: “to conclude that the Constitution requires that the Executive never spend money lawfully available for expenditure without legislative authority to do so is to decide a large and complex issue. It is better that it not be decided until it is necessary to do so.

Crennan J also emphasised the importance of parliamentary oversight of expenditure of money by the executive, in terms generally consistent with the joint judgment of Gummow and Bell JJ.

Kiefel J, like Hayne J, declined to resolve the question of whether and in what circumstances legislative or Constitutional authority for the expenditure of moneys was required, and held that the postulated bases of legislative authority advanced by the Commonwealth would not have supported the provision of chaplaincy services by SUQ using money provided by the Commonwealth.

 Scope of the student benefits power – section 51(xxiiiA)

One issue that arose (or potentially arose) in the case was the question of whether or not there was legislative power capable of supporting any Commonwealth legislation purporting to authorise the entry into the Funding Agreement.  It was unnecessary for French CJ or Crennan J to consider that issue.  Nor was it necessary for Gummow and Bell JJ to consider that issue, although their honours expressly left open the possibility that the entry into the Funding Agreement might be authorised by legislation enacted pursuant to section 51(xxiiiA) (“benefits for students”) of the Constitution.  Hayne J and Kiefel J both expressly held that any hypothetical law seeking to authorise the entry into the Funding Agreement would not fall within 51(xxiiiA).  Heydon J held that 51(xxiiiA) would support legislation authorising the provision of chaplaincy services by SUQ using money provided by the Commonwealth.

Religion

In reasons with which the Court generally agreed, Gummow and Bell JJ held that section 116 of the Constitution (which states that “no religious test shall be required as a qualification for any office or public trust under the Commonwealth”) had no relevance because, even assuming that the definition of “school chaplain” imposed a “religious test” for that office, the chaplains engaged by SUQ held no office under the Commonwealth. 

Heydon J agreed on the section 116 issue.  In doubting that there was a “religious test” at all his Honour noted that the definition of “school chaplain” read together with the description of the services to be provided:

conveys the impression that, at least at this school, neither the NSCP nor the qualification for “chaplains” had much to do with religion in any specific or sectarian sense. The work described could have been done by persons who met a religious test. It could equally have been done by persons who did not.

Heydon J then colourfully noted:

In ordinary speech a “chaplain” is the priest, clergyman or minister of a chapel; or a clergyman who conducts religious services in the private chapel of an institution or household. Those who are “school chaplains” under the NSCP’s auspices fall outside these definitions. Their duties in schools are unconnected with any chapel. They conduct no religious services. Perhaps those supporting validity committed an error in calling the NSCP a “chaplaincy program” and speaking of “school chaplains”. The language is inaccurate and may have been counterproductive. Some vaguer expression, more pleasing to 21st century ears, like “mentor” or “adviser” or “comforter” or “counsellor” or even “consultant”, might have had an emollient effect. The plaintiff must have found the words “chaplain” and “chaplaincy” useful for his contention that the NSCP was void under s 116.

In any event, they could not properly be described as officers under the Commonwealth.

It cannot appoint, select, approve or dismiss them. It cannot direct them. The services they provide in a particular school are determined by those who run that school. The provision of those services is overseen by school principals.

 The Great Dissenter

Heydon J, in emphatic terms, dissented in relation to the validity of the Funding Agreement. 

His Honour noted that there was, from an early stage, a “Common Assumption” made by the parties to the proceedings that the executive power of the Commonwealth included a power to enter into contracts without statutory authority so long as the Commonwealth had the legislative power to give it statutory authority. According to Heydon J this Common Assumption was present in Williams’ written submissions, repeated in the Outline of Oral Submissions, was accepted as correct by the written submissions of the other parties and interveners, and was described by the State of Queensland as “the orthodox test of the scope of executive power.”

The Common Assumption broke down when Western Australia began its address, and withdrew the acceptance of the Common Assumption from its written submissions, and Williams and most of the interveners followed suit and lined up against the Commonwealth.  As a result of this renversement des alliances, in the colourful words of Matthew Arnold, “the Court was as on a darkling plain, swept with confused alarms of struggle and flight, where ignorant armies clash by night”. 

Heydon J devoted some considerable verbage to the consequences of the Common Assumption and its breakdown. His Honour noted:

The five parties and the seven interveners were represented by exceptionally capable and experienced constitutional lawyers. Those lawyers included seven Solicitors-General and a retired Federal Court judge. Their solemn adherence to the Common Assumption, during the calm and leisured composition of their written submissions, is a significant phenomenon. If Hugh Cairns and Roundell Palmer, arguing opposite sides of a case, agreed on a principle of equity, that was some indication that that principle was sound. Of course, an agreement between parties or interveners on the law does not bind the courts. Adherence to the Common Assumption does not demonstrate or constitute the law. It is not decisive. But it is material. Why did this large group of expert constitutional lawyers initially adhere to the Common Assumption? Because they thought it to be correct. And it was correct.

Having discussed the authorities of the Court, which were said to support the Common Assumption, Heydon J asked whether the Common Assumption was so wrong as a matter of principle as distinct from authority that it should be overruled? To this Heydon J responded with an astonishing spray:

This case is not an appropriate one in which that question should be answered. All parties and interveners initially adhered to the Common Assumption. Its sudden abandonment by the plaintiff and most government interveners during oral argument meant that the submissions attacking and defending the Common Assumption were deployed only at a very late stage of the fray. Inevitably, they betrayed signs of disorganisation. It is true that the plaintiff, South Australia, Tasmania and the Commonwealth were given leave to file additional written submissions after the oral argument closed. But this gave the Commonwealth only the period between when oral argument ended on 11 August 2011, and when the additional submissions were filed on 1 September 2011, to consider the point. On 7 August 2011, urgent and important litigation affecting the Commonwealth had commenced [A reference to M70 v Commonwealth, the “Malaysia Solution” Case]. Interlocutory hearings took place. After 11 August 2011, written argument was filed and preparation for oral argument took place. Oral argument was then heard on 22 and 23 August 2011. That litigation was decided on 31 August 2011. This must have depleted the relevant resources of Commonwealth energy and distracted those who were to tap them. It is important that points of fundamental significance such as the one that this case belatedly raised be pondered by counsel for years – as they often are when appeals come to this Court – or at least for months – as is usual when matters in the original jurisdiction are brought to the Full Court. Above all, they need to be considered calmly. Radical changes in the construction of the Constitution should not be made without better assistance than the unpredicted conspiracy of circumstances permitted counsel to provide in this case.

Conclusion

 It is difficult to know what the future of the NCSP is as a result of this judgment.  There must be some doubt as to whether the Commonwealth could validly legislate to resurrect it.  However, even assuming no legislative power to authorise to authorise the entry into the Funding Agreements, other constitutional mechanisms would seem to be available to enable the program to continue (most obviously, the provisions of tied grants under section 96).

More broadly, there is at least a majority of French CJ, Gummow, Bell and Crennan JJ who are of the view that the executive power of the Commonwealth is constrained not only by it's power to legislate but also by the fact of legislation authorising the entry into contracts pursuant to which it seeks to pay moneys in fulfilment of its programs.  In a practical sense, this ultimately may not amount to very much, as similar ends will be achieved by legislatively providing the express authority to enter into such contracts, or achieving the same results via tied grants to the States.

However, more significantly the High Court has continued in its preparedness to challenge long-held assumptions about Commonwealth expenditure powers, and it can be expected that before too long the scope of various other powers of the Commonwealth to expend moneys (most notably sections 64 and 96 of the Constitution) will come under renewed challenge.

Preview of LexisNexis Red

A week after I dutifully filled in my request via the LexisNexis website for a trial subscription to Ritchie's Uniform Civil Procedure NSW on the new digital Red platform (formally known as LegalPad, and still known as LegalPad in some of the website URLs), I finally received notification that my trial had been activated (unfortunately I didn't receive my password, which I tried to reset through the app but was told my account didn't exist. Thankfully someone on the helpline was able to reset it for me).

Those delays aside, I've now had an opportunity to put the app through its paces. As always, I have played with it without doing any official training in order to assess its intuitiveness, and to see the extent to which it does what I want it to do straight out of the box. So to the extent I have described a limited functionality, I accept it may be that I couldn't find it.

I should say up front that I am testing the Red platform in its iPad incarnation. It is available for Windows PCs as well, which I have not tested, for two reasons. Firstly, I have a Mac. And yes, Mac users have once again been left out in the cold. Secondly, if you want this thing on two devices, you'll need to get two licences. I haven't seen any pricing for these products yet, so I don't know whether this is another cynical act of price-gouging on the part of a near-monopolist publisher of NSW's main procedure loose leaf.

The main utility LexisNexis Red is that it makes the hard copy of Ritchie's available in tablet format. To that extent, it serves a very useful function of having the whole of the text available in a convenient, and portable, format. Thankfully, the paragraph numbering corresponds with that in the hard copy, so referencing Ritchie's remains medium neutral.

As occurred with the online version of Ritchie's, however, the translation to electronic format is somewhat lazy. Click in the Table of Contents on Uniform Civil Procedure Rules 2005 and you get a sub-table with two items that read "Uniform Civil Procedure Rules 2005" and "UNIFORM CIVIL PROCEDURE RULES 2005". The former brings up a numerical table, followed by an alphabetical table, of the parts of the UCPR. The latter brings up the UCPR itself. It thus replicates the same lazy nesting that features in the online version. One wonders why you need either a numeric table of parts or an alphabetical table of parts in an electronic version of the publication. OK...I can think of one reason, but those tables are only useful if they link to something. Which they don't. If you know you want to go to Part 21, or you know you want to go to the part dealing with Discovery, those tables should help you navigate there...but they're not hyperlinked. Which means they are as useful as a supernumerary nipple.

While I have a head of steam up about hyperlinking, let me say a few more things about how ordinary it is.

If you have a bright-blue hyperlink that says 5.12, it helps if when you click on it it takes you to 5.12. It doesn't. It takes you to 5.1 instead. All of the hyperlinks to individual rules, or paragraphs in the commentary, take you to the beginning of the relevant Part or, in some cases, the beginning of the Division within that Part in which the particular rule or paragraph of the commentary appears. It doesn't take you to the rule or paragraph itself.

In some cases, the hyperlinking is not apparent at all...sometimes ordinary black text is in fact hyperlinked (in the Table of Contents for example).

The hyperlinking in the Index is quite ordinary. Looking for "Abridgment of Time" tells you to see "Time", which is hyperlinked. But it hyperlinks to the Ta section of the Index, not the Ti section (although the Ti tab itself if highlighted). And of course when you eventually find the reference to Abridgment of Time, it hyperlinks you to rule 1.12...except it actually takes you to rule 1.11 because that is the first rule in Division 2 of Part 1.

Heaven forbid you should need to read Rule 1.1. In a further lazy transposition into the digital age, Part 1 commences not with Rule 1 but with the Table of Amendments to the whole of the UCPR. Why? Because that's where it appears in the lazy transposition of the hard copy to the online version. Want to see a definition in the Civil Procedure Act? That's in section 3, so you'll have to scroll through the Table of Amendments to that Act first.

There is some hyperlinking between the UCPR and other legislation referred to therein, but it is pretty hit-and-miss. For example, provisions of the Corporations Act are referred to, but click on that bright blue hyperlink and it brings up an error telling you to get in touch with Customer Support. Presumably, this is because Ritchie's itself does not contain the Corporations Act. It does, however, contain relevant parts of the Legal Profession Act relating to costs, but for some reason the parts of the UCPR referring to those costs provisions are not hyperlinked to them.

Sorry to say, Ritchie's does not link to any of the caselaw services, so all those cases that are referred to in the commentary (usually accurately) remain unavailable in any convenient form from within Red itself.

Being a slavish electronic version of the hard copy/online version, the Court Forms are also available. They are available via hyperlink in a Word version of the form, should you so desire. It is not apparent why anyone would so desire, because you can't actually do anything with it: edit, save, email, Tweet, upload to Facebook, Pinterest etc etc.

Navigating is not the easiest thing to do. There is no easy way to keep track of where you've been and where you're going. While you can go back to where you came from, you cannot immediately go forward again. You can go back to your opening home screen where there is a list of recent places, but that seems an overly cumbersome way of navigating.

There is no apparent way of creating a list of favourite places that you frequent often, although you could highlight certain text and use the list of highlights as, in effect, a set of bookmarks. There is the capacity to annotate the text, but its functionality is fairly limited. The note itself does not indicate the text that is being annotated, so that notes to bits of text that are in close proximity, or that overlap, can be impossible to distinguish. Notes cannot be synced between the iPad and (if you've forked out for the additional licence) a PC version of Ritchie's on Red.

Searching can be slow if you're searching for a commonly occurring phrase. There's no indication of how many hits have been found. The only context provided is the name of the Part or Division in which the hit occurs, which more often than not is not very helpful. You canot search a phrase: quotation marks don't work, and the phrase by itself seems to be treated as individual search terms with the AND operator between them. Once you click on one of the results, there is no apparent way to return to the results list, or move to the next hit.

Someone rings you up to ask you about a particular rule? Forget it. You can't search by rule number. The numerical table of parts is not hyperlinked. So the only way is to go back to the table of contents, and browse through the relevant Parts and Divisions until you get there. Thankfully, however, the Table of Contents actually works pretty well, although the inconsistency between the way that upper and lower case is used, and the inconsistency in the way Parts or Divisions are labelled with the range of rules/sections, are bugbears.

I could go on, but I think you get the drift. LexisNexis Red seems to be a souped-up eReader with fairly limited functionality. While it adds the convenience of carrying a 3-volume loose leaf around on your iPad, it adds very little else. I could not find any pricing on the website, so it's impossible to say whether it is value for money. But if I were to answer the question legal publishers are so fond of asking (ie how much would you be prepared to pay on top of your loose leaf subscription for this product) the answer would be: not very much.

Forthcoming judgments in the High Court

On Wednesday, 20 June 2012 the High will deliver judgment in two cases in which it is currently reserved.

The first is in Williams v Commonwealth, in which the plaintiff, the father of four children enrolled in a Queensland public school, is challenging the Commonwealth's National Schools Chaplaincy Program, introduced by the Howard government in 2006 and extended for four years by the Gillard Government in 2010.

The second is in King v The Queen, which addresses the issue of whether, in relation to dangerous driving charge under the Victorian Crimes Act 1958, it is sufficient that the driving need only have significantly increased the risk of hurting or harming others, or whether it must also be established that the driving was deserving of criminal punishment.

The High Court will also deliver its reasons for allowing the appeal in Clodumar v Nauru Lands Committee. 

Finally, the High Court will pronounce orders in the appeal in Burns v The Queen (one assumes that because they are pronouncing orders but not delivering reasons, the appeal must have been successful).  This was an appeal from the NSW Court of Criminal Appeal which upheld the appellant’s conviction on a charge of manslaughter in circumstances where she and her husband had either supplied methadone by injection to the deceased (constituting manslaughter by unlawful and dangerous act), or they owed a duty of care to the deceased but failed to render assistance to the deceased when he became ill as a result of the effects of the methadone (constituting manslaughter by criminal negligence), or both.

Next week in the High Court of Australia

Next week the High Court hears argument in three cases.

The first is M47/2012 v Director General of Security.  In this case a Sri Lankan asylum seeker who has been recognised as a refugee, was refused a protection visa and remains in immigration detention as a result of an adverse security assessment by ASIO.  This case will address the procedural fairness requirements owed by ASIO in making an adverse security assessment, the proper construction of the provisions of the Migration Act giving effect to Australia’s obligations under the Refugee Convention, and the proper construction of the Refugee Convention itself.  In addition, and although the Commonwealth submits that the facts of the case do not warrant a reconsideration of the High Court’s earlier 4:3 decision in Al-Kateb v Godwin, it may also address more broadly the constitutional limits on the Commonwealth’s powers of immigration detention.

The second case is International Litigation Partners Pty Ltd v Chameleon Mining NL which raises the question of whether a litigation funding agreement is governed by the provisions of Chapter 7 of the Corporations Act, which regulates the provision of financial services and the offering of financial products. In a nutshell, having taken the benefit of the litigation funding provided by ILP, Chameleon seeks to avoid paying the fee due under that agreement by arguing that it is void for non-compliance with the Corporations Act.

The third case is Beck v Weinstock which raises a short but difficult question of statutory construction, as to whether there can be a “redeemable preference share” if there are no issued shares over which they take preference.  The case will make the difference between $8 and several million dollars to an estate administered by the Public Trustee.  It also emphasizes the care required when establishing a corporate structure for the purposes of avoiding taxes and duties!

LexisNexis Red (formerly designated LegalPad)

It seems that LexisNexis has quietly released its new digital looseleaf platform called "LexisNexis Red" (it was originally to be called LegalPad...a name that was already taken in the App Store).

After I wrote my unfavourable review of some of the LexisNexis eBooks, and comparatively favourable review of the Thomson Reuters ProView platform, I was contacted by LexisNexis who asked me to participate in the beta-testing of their newly-developed LegalPad (now Red) platform.  Despite some concerns about the breadth of the confidentiality agreement they required, I signed up for the beta-testing only to discover that:

• the desktop version of the platform was not available for Mac (don't be fooled by their reference to "PC or laptop"...what they mean is Windows-based laptop);
• the iPad App had not yet been approved by Apple and was unavailable for testing.

Disappointed by being unable to test the syncing capabilities between the desktop and the iPad versions, nonetheless I was happy to at least try the iPad version when it became available. That was on 3 April 2012.  I followed up the "Product Strategy Manager" with whom I had been dealing on 1 May 2012, and again on 5 June 2012.  Stony silence both times...not such a great "strategy".

And so, much as I would like to be able to provide you with a review of LexisNexis Red, I am only now going to be able to put it through its paces, and even then it will be limited to a review of its iPad capabilities.

Stay tuned!

This week in the High Court of Australia

The High Court of Australia is sitting in Brisbane this week.

The first case in the list to be heard (according to the High Court’s case summary) today and tomorrow is in Commissioner of Taxation v Qantas Airways Ltd.  This case raises the question of what is the taxable supply, if any, where a passenger has paid the fare for a flight but either cancels the reservation or does not present themselves for carriage, and no refund is available or claimed: is it the reservation or the failed flight?

The second case (which according to the High Court’s case summary is to be heard on Wednesday and Thursday of this week, but which according to newspaper reports will commence on Tuesday) is Patel v The Queen.  This appeal involves the notorious surgeon Dr Jayant Patel who was convicted of manslaughter following the death of three patients, and of inflicting grievous bodily harm on a fourth, as a result of surgery performed by Dr Patel in 2003 and 2004.  The case raises the issue of whether a surgeon could be guilty of manslaughter by criminal negligence only where there is negligence in the performance of a surgical procedure, or whether it also applies where the surgery is performed competently but the decision to operate or recommend surgery to a patient was negligent.