Next week in the High Court of Australia

The High Court will hear argument in three cases next week.

On Tuesday, 30 April 2013 the Court will consider an appeal from the NSW Court of Criminal Appeal in Agius v The Queen.  At issue n the appeal is whether a person commits the offence of conspiracy to defraud contrary to section 135.4 of the Commonwealth Criminal Code where the agreement underlying the alleged conspiracy was formed prior to the commencement of that section, but the agreement was given effect to after that commencement.

On Wednesday, 1 May 2013 the Court will consider an appeal from the NSW Court of Appeal in Lee v NSW Crime Commission.  At issue is whether or not the NSW Supreme Court ought to have made orders for the compulsory examination of the appellant under the Criminal Assets Recovery Act 1990 (NSW) while there were pending criminal charges against the appellant to which the answers given during the examination might be relevant. It also raise a related question of whether, to the extent that the Act purports to enable the making of order for compulsory examination in those circumstances, the Act is invalid as an undue impairment upon the institutional integrity of the Supreme Court contrary to Chapter III of the Constitution.

On Thursday, 2 May 2013 the Court will hear applications for special leave to appeal (to be heard as if on appeal) in Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd and Aristocrat Technologies Australia Pty Ltd v Allam.  These appeals arise out of proceedings commenced by Aristocrat Technologies and associated companies seeking damages for copyright and trademark infringement in relation to the supply of refurbished gaming machines in Latin America (principally Peru) pursuant to a joint venture arrangement.  The issue on appeal is the application of section 97 of the Evidence Act 1995 (relating to tendency evidence) to certain emails which were said to demonstrate a tendency on the part of the respondents to engage in infringing transactions. 

Forthcoming judgments in the High Court of Australia

The High Court will deliver judgments in three cases next Wednesday, 1 May 2013.

The first is a judgment in two cases relating to the same family company. In Beck v Weinstock, at issue is whether or not a share can be a “preference share” for the purposes of the Corporations Act 2001 when the rights attaching to it do not confer any preference or priority over the rights attaching to other shares issued in the company.  In Weinstock v Beck, at issue is the ambit of the power under section 1322(4) of the Corporations Act 2001 to validate the purported appointment of a company director by a person who was themselves not validly appointed as a director but who had been acting as a de facto director. 

The second is the judgment in Commissioner of Taxation v Unit Trend Services Pty Ltd which looks at the anti-avoidance provisions of the GST legislation and their application to a property development trust.

Refugee victory in the High Court

Today in SZOQQ v Minister for Immigration and Citizenship the High Court upheld an appeal that considered the interaction between the Refugee Convention and the protection provisions of the Migration Act.

In 2001 the appellant pleaded guilty to the manslaughter of his wife and was sentenced to seven years imprisonment.  The protection visa he held was cancelled under the character provisions of section 501 of the Migration Act.  Subsequently, after a number of applications, the Minister exercised the power under section 48B of the Act to “lift the bar” on the appellant making a fresh protection visa application.

The Minister’s delegate determined that the appellant had a well-founded fear of political persecution within the meaning of Art 1A(2) of the Convention.  However, the delegate further determined he was not a person to whom Australia owed “protection obligations” because Art 33(1) of the Convention (the prohibition on refoulement) did not apply to the appellant.  This was because Art 33(2) provided an exception to the refoulement prohibition where a refugee had committed a “particularly serious crime” and constituted a danger to the community. Section 91U of the Act provided that for the purposes of the operation of Art 33(2) the reference to “particularly serious crime” was defined in terms that applied to the appellant.

In the High Court, Keane J (with whom the other judges agreed) held that for the purposes of section 36 of the Act, the question of whether or not a person is a person to whom Australia owes protection obligations is to be determined simply by whether or not that person has a well-founded fear of persecution within the meaning of Art 1A(2) of the Convention.  Section 91U of the Act did not, in terms, seek to alter the content of section 36. The Minister’s argument proceeded upon the false assumption that the prohibition on refouelement was the only protection obligation engaged by the determination that the appellant satisfied Art 1A(2) of the Convention.

Accordingly, the appeal was upheld.

That will not be the end of the dispute between the appellant and the Commonwealth.  The Commonwealth has the power to refuse a visa under section 501 (the power it had previously exercised to cancel the original protection visa) and it can be anticipated that the Commonwealth will rely upon the appellant’s conviction to exercise that power. 

Forthcoming judgments in the High Court of Australia

The High Court will deliver judgment in two cases this week on Wendesday, 10 April 2013.

The first is in the appeal from three decisions of the NSW Court of Appeal in Castle Constructions Pty Ltd v Sahab Holdings Pty 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.

The second is in the appeal from the Full Federal Court in SZOQQ v Minister for Immigration and Citizenship, to be heard on Tuesday, 12 March 2013.  In this case the appellant is an Indonesian national from the West Papuan province of Irian Jaya.  Following persecution at the hands of the Indonesian government he travelled from Papua New Guinea to Australia in 1985 and was granted a series of temporary visas until ultimately being granted a Protection Visa in 1996.  In 2000 he was arrested and detained after assaulting his de facto spouse, who died in hospital four days later.  He pleaded guilty in 2001 to manslaughter and was sentenced to seven years’ imprisonment.  In 2003 his Protection Visa was cancelled under the character provisions in section 501 of the Migration Act. In 2005 and again in 2007 the appellant requested the Minister to exercise the power under section 48B of the Act to lift the bar imposed by section 48A(2) of the Act to enable him to apply for a new Protection Visa. These applications were refused, but in December 2008 the Minister decided to exercise the power under section 48B and allowed the appellant to make a fresh Protection Visa application.  In 2009 the Minister’s delegate determined that the appellant satisfied the criteria of Art 1A(2) of the Refugees Convention.  However, the delegate determined that the appellant was not a person to whom Australia owed “protection obligations” for the purposes of section 36 of the Act because, having been convicted of a particularly serious crime and constituting a danger to the Australian community, he was excluded by Art 33(2) of the Refugees Convention.  Successive challenges to that decision on the grounds that the Minister should have balanced the threat posed by the appellant to the community against the dire consequences to the appellant should he be returned to Indonesia were rejected.  The question for determination is whether Art 33(2) of the Refugees Convention (the exception to the non-refoulement obligation) is imported into section 36 of the Act in determining whether or not the appellant is a person to whom Australia owes protection obligations.  If the appellant is a person to whom Australia owes protection obligations (ie because he satisfies Art 1 of the Refugees Convention - Art 33(2) being irrelevant for the purposes of section 36 of the Act) then further questions arise as to whether the Minister is then required to consider whether the discretion under section 501 should be exercised to prevent the grant of that visa, and if so what are the factors relevant to the exercise of that discretion.  

This week in the High Court of Australia

This week the High Court will hear argument in the latest instalment of proceedings involving Gregory Wayne Kable.

Kable, it may be recalled, stabbed his wife to death in the house in which she lived with the children of their marriage.  The marriage had broken down and there had been considerable acrimony between Kable and his wife concerning custody of, and access to, the children. Before killing his wife, Kable had engaged in violent behaviour towards her and had made threats of violence.  He pleaded guilty to the manslaughter of his wife and was sentenced to a term of imprisonment of five years and four months, expiring on 4 January 1995. Whilst in prison, he wrote a series of threatening letters such as to cause serious concern that upon his release there would be a repetition of the same behaviours that had led to the death of his wife. 

The NSW Parliament passed the Community Protection Act 1994 which conferred jurisdiction on the NSW Supreme Court to make an order for preventative detention.  Although proposed as legislation of general application, the Act as finally passed was limited in its application to Kable.  Orders were made by Hunter J and then Levine J with the effect that Kable remained imprisoned until 23 August 1995 (an application on 21 August 1995 for a further order was refused by Grove J).  

In September 1995 in Kable v Director of Public Prosecutions (NSW) the High Court ruled that the Community Protection Act 19994 was invalid by reason that the jurisdiction and powers conferred upon the Supreme Court were of such an extreme nature and quality as to be incompatible with the exercise by the Supreme Court of the judicial power of the Commonwealth.

The consequence of all of this was that Kable was imprisoned for a period beyond the term of his imprisonment for the manslaughter of his wife, pursuant to orders made under an invalid Act of the NSW Parliament.

Kable commenced proceedings seeking damages for, inter alia, false imprisonment.  Unsuccessful at first instance before Hoeben J, Kable appealed and a specially-convened bench of five in the NSW Court of Appeal (Allsop P, Basten, Campbell, and Meagher JJA, and McLellan CJ at CL) allowed the appeal in respect of the claim for false imprisonment.

At issue before the High Court is whether or not obedience to orders of a State Supreme Court that were valid on their face (but which were subsequently found to be ineffective by virtue of the invalidity of the authorising Act) provides a defence of lawful authority at common law to the claim for false imprisonment.

Purportedly by Notice of Contention (although one would have thought it more properly arises by way of Cross-Appeal) Kable also seeks to challenge the Court of Appeal’s rejection of his claims for malicious prosecution and abuse of process.