This week the High Court will deliver judgment in seven
cases.
On Thursday, the Court will
deliver judgment in Andrews v ANZ Banking
Group Ltd, a group proceeding challenging the validity of various
exception fees charged on overdraft account, dishonour fees, overdrawn credit
card accounts etc. The issues in the High Court include whether the
jurisdiction of the courts in relation to penalties is available only at law or
whether it is still alive in equity, and whether a party can only be relieved
against a penalty where it becomes payable for a breach of contract (that
limitation having been imposed by the House of Lords in Expert Credit Guarantee Department v Universal Oil Products Co). This case was only heard on 14 August and so
judgment has been turned around very rapidly.
On Friday, 7 September 2012 the
Court will deliver judgment at 9:30am in four migration cases: Plaintiffs S10/2011, S49/2011 and
S51/2011 andKaur. Common to each of the cases is the question of whether or not
(and if so, to what extent) the Department of Immigration and Citizenship is
required to afford procedural fairness in inviting comment on internal DIAC
advice to the Minister where applications have been made to the Minister to
exercise certain non-compellable powers, either to allow a person refused a
protection visa to make a further application (under s48B), to substitute a
more favourable decision than a decision made by either the Migration Review
Tribunal (under s351) or the Refugee Review Tribunal (under section 417).
More importantly, the cases may test the boundaries of the High Court’s
decision in Plaintiff M61/2010E which
dealt a fatal blow to the government’s processing scheme for offshore asylum
seekers.
The Court will at the same time deliver judgment in Board of Bendigo
Regional Institute of Technical and Further Education v Barclay.
Barclay is a senior teacher employed by BRIT, and is also the sub-branch
president at BRIT of the Australian Education Union. Barclay, in his AEU
capacity, forwarded an email to AEU members employed at BRIT, in relation to an
upcoming re-accreditation audit, in which he said he was aware of reports of
misconduct by unnamed persons in BRIT. The CEO of BRIT wrote to Barclay
requiring him to show cause why he should not be disciplined for failing to
report the misconduct alleged in his email to senior managers. Barclay was
suspended on full pay, had his internet access suspended and was not required to
attend BRIT during the suspension period. At issue is whether or not the
“adverse action” taken against Barclay by the CEO was taken because of a
“proscribed reason” (in this case because of his membership of, or role in, the
AEU or because he had been engaged in industrial activity). Importantly,
the case raises the question of whether, in answering that question, one is
applying a subjective test and inquiring into the decision-maker’s actual state
of mind, or whether one is applying an objective test so that it is sufficient
to establish contravention that Barclay’s conduct was undertaken in his
capacity as a union official, and that conduct has resulted in the adverse
action taken.
Finally, Friday will also see judgment in PT Garuda Indonesia Ltd
v Australian Competition and Consumer Commission. This case
arises out of proceedings commenced by the ACC against Garuda and Malaysian
Airlines alleging that each was a party to price fixing, market sharing and
anti-competitive cartels contrary to section 45 of the Trade Practices Act
1974. Garuda claimed that it was entitled to immunity from the
jurisdiction of Australian courts under the Foreign States Immunities Act
1985. Garuda is owned as to 95.5% by the Indonesian Government, and 4
out of 5 members of its Board of Commissioners were at the relevant time senior
Indonesian government officials. As such, Garuda would ordinarily be
entitled to the immunity from the jurisdiction of Australian courts conferred
on foreign states by section 9 (applying by virtue of section 22) of the
Act. There are exceptions to this general immunity, and question for
determination is whether or not the proceedings “concern a commercial
transaction” for the purposes of section 11 of the Act, with the consequence
that the immunity from the jurisdiction of Australian courts does not
apply.
