This week in the High Court of Australia

Welcome back to the High Court in 2013.  This week, following a ceremonial sitting to welcome new silk this afternoon, the High Court will hear argument in four cases.

First cab off the rank on Tuesday, 5 February 2013 is an appeal from the NSW Court of Appeal in Beckett v State of New South Wales.  The plaintiff was formerly known as Roseanne Catt.  In 1991 a jury found her guilty of various offences relating to assaults on her husband by the plaintiff, and a number of offences of soliciting a Mr Morris and a Mr Taylor to murder her husband.  She was acquitted of a further offence of encouraging a Mr O’Brien to murder her husband, an offence for which the magistrate had refused to commit her to stand trial, but in respect of which the DPP had presented an ex officio indictment.  She was sentenced to 12 years imprisonment. An appeal to the Court of Criminal Appeal was dismissed.  In early 2001 the plaintiff petitioned the Governor for a review of her convictions (under s474B of the Crimes Act 1900) and at the completion of the procedure laid down for such a review in August 2005 the Court of Criminal Appeal quashed certain of the convictions and ordered a re-trial in respect of them.  In September 2005 the DPP directed that there be no further proceedings against the plaintiff in relation to those charges.  The plaintiff in August 2008 commenced proceedings against the State of NSW for malicious prosecution.  Separate Questions were stated for determination which raise the issue of whether or not the plaintiff, in her claim for damages for malicious prosecution, had to positively establish her innocence and whether proof of her innocence was a necessary element of the cause of action for malicious prosecution. A subsidiary question is whether the statutory power of the DPP to direct that there be no further proceedings is equivalent to entering a nolle prosequi at common law.  

On Wednesday, 6 February 2013 is an appeal from three decisions of the NSW Court of Appeal in Castle Constructions Pty Ltd v Sahab HoldingsPty Ltd.  These appeals address the issue of whether or not the intentional (but incorrect) removal of an easement from a land title by the Registrar-General amounts to an “omission” for the purposes of the exception to indefeasibility of title under section 42(1)(a1) of the Real Property Act 1900 as well as for the purposes of the provisions empowering the Supreme Court to order the reinstatement of the easement to the Register.

On Thursday, 7 February 2013 is an appeal from the Full Court of the Federal Court of Australia in Minister for Immigration and Citizenship vLi.  In general terms this case considers the content of the procedural fairness requirements in appeals to the Migration Review Tribunal.  More particularly, it considers whether or not a refusal by the MRT to adjourn a hearing to enable the applicant time in which to satisfy a criterion for the grant of a visa, a criterion that the applicant did not then satisfy, amounts to a denial of procedural fairness.

Finally on Friday, 8 February 2013 is the Special Case in M79/2012 vMinister for Immigration and Citizenship.  The plaintiff is a Sri Lankan citizen who arrived at Christmas Island in February 2010.  He was therefore an “offshore entry person” and was unable to make a valid application for a visa (including a Protection Visa) by virtue of section 46A(1), unless the Minister exercised his power under section 46A(2) to “lift the bar” on the making of such an application.  The plaintiff had access to the administrative systems of Refugee Status Assessment and Independent Merits Review (the systems by which if a person is found to be a refugee, the Minister may then exercise the power to “lift the bar” under section 46A(2)).  Those processes were completed on 17 May 2011 with a recommendation to the Minister that the plaintiff not be recognised as a refugee (ie not a person to whom Australia has protection obligations).  An application for judicial review in the Federal Magistrates Court has been heard, with judgment reserved.  The plaintiff had been held in immigration detention since his arrival on Christmas Island.  However, he was released on 12 April 2012 pursuant to a policy announced on 25 November 2011 that “irregular maritime arrivals” such as the plaintiff would be released from immigration detention and placed in the community on bridging visas.  He was released because he was granted a Temporary Safe Haven Visa (permitting a stay of 7 days) and a Bridging Visa (permitting a stay of 6 months).  The submission signed by the Minister approving the exercise of his intervention power under section 195A noted that the purpose of granting the Temporary Safe Haven Visa was to bar the plaintiff from lodging further onshore visa applications.  A subsequent application for a protection visa was rejected as not being a valid application (because of section 46A(1)).  Upon the expiry of the Bridging E visa the plaintiff was detained before being again released into the community by the grant of a further Bridging E visa.  The plaintiff challenges the grant of the Temporary Safe Haven Visa on two grounds.  The first is that such a visa cannot be granted under the ministerial intervention power in section 195A.  The second is that having been made for an improper purpose (ie to prevent the making of a valid application for a protection visa once lawfully released into the community under the Bridging E Visa) the grant of the Temporary Safe Haven Visa was invalid.