Next week in the High Court of Australia

Next week the high Court will hear argument in two cases.

In the first, Legal Services Board v Gillespie-Jones, the Court will consider an appeal by the Victorian Legal Services Board against a decision of the Victorian Court of Appeal in which it held that where a solicitor misappropriates trust moneys paid to the solicitor by a client to cover the client’s costs of litigation (including fees charged by counsel), a barrister who had been retained by the solicitor to appear for the client was entitled to compensation out of the Fidelity Fund established under the Legal Profession Act 2004 (Vic) in respect of the barrister’s unpaid fees.  As the Legal Services Board succinctly puts it, this has the effect of making the Fidelity Fund the de facto guarantor of the bad debts of solicitors.

In the second, Nguyen v The Queen, the Court will consider an appeal by Dang Khoa Nguyen in criminal proceedings that have already made their way to the High Court on a previous occasion (see R v Nguyen (2010) 242 CLR 491, an appeal involving Dang Khoa Nguyen’s co-accused, Dang Quang Nguyen).  At issue is whether the trial judge ought to have left for consideration by the jury an alternative charge of manslaughter (by acting in concert, by extended common purpose, or by aiding and abetting) where the perpetrator had been conceited of murder.  A further issue of more general importance is the extent to which a trial judge is entitled to have regard to the manner in which an accused has conducted the defence in determining whether or not to leave an alternative charge for the jury’s consideration.

Forthcoming judgments in the High Court of Australia

This week, on Wednesday 29 May 2013, the High Court will deliver judgment in two cases.

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.

There is also a judgment in relation to the making of orders consequential on the High Court’s judgment earlier in the year in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd & Ors.

This week in the High Court of Australia

Unfortunately other commitments have delayed this week’s post, but here goes.  There are two cases being heard this week in the High Court.

On Tuesday 28 May 2013 the Court heard argument in Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd.  In that case Hoechst AG held a patent for a compound called leflunomide.  That patent, which expired in 2004, claimed a “method for the treatment of inflammations, rheumatic complaints and multiple sclerosis by administering to the patient an effective dose” of leflunomide.  In 1994 Hoechst AG applied for a patent (expiring in 2014) in which it claimed “A method of preventing or treating a skin disorder, wherein the skin disorder is psoriasis, which comprises administering to the patient an effective dose” of lelunomide.  Apotex has marketed a generic form of leflunomide, for which it has TGA approval and copied the respondent’s patient information.  The respondents sought to restrain Apotex from marketing its generic leflunomide for psoriasis, claiming it breached the patent.  The High Court has thus been called upon to rule on whether or not a method of treatment of the human body is capable of being a patentable invention, or alternatively whether a claim for a subsequent use of a previously known product claims a patentable invention.  The hearing continues tomorrow.

On Thursday, 30 May 2013 the Court will hear argument in the appeals in Issa v The Queen and Elias v The Queen.  The Court will consider the extent of the principle in R v Liang & Li, whereby a sentencing court imposing a penalty for a State offence is required to have regard to the fact that the accused could have been charged with a different offence under State law that carried a lesser penalty.  At issue in the appeal is whether or not in sentencing a person for a State offence, the principle in R v Liang & Li requires a court to take into account that the person could have been charged with a similar offence for the same conduct under a Commonwealth law which carried a lesser maximum penalty. 

Grants of Special Leave to Appeal to the High Court

On Friday, 10 May 2013 the High Court granted special leave to appeal in five cases.

In Comcare v PVYW the High Court will revisit the question of whether an employee injured whilst engaged in private activities is able to recover workers compensation.  The respondent was required by her employer (a Commonwealth government agency) to travel to a country town. She stayed at a motel booked by her employer. While staying at the motel she arranged to meet a male friend and, after dining together, they went to her motel room. The respondent was injured while engaging in sexual intercourse when a glass light fitting above the bed was pulled from its mount and fell on her, causing injuries to her nose and mouth. She also suffered a psychological injury as a result of the incident.  The issue for the High Court is whether or not the injury can be said to be “arising our of, or in the course of, her employment”.

Reproduction was the subject of a second grant of special leave in Clark v Macourt.  This is a case about the appropriate measure of damages for breach of warranty in a contract for the sale of a business which sale included the transfer of title to straws of semen for use in fertility treatment.

Special leave was also granted in Bugmy v The Queen, an appeal in relation to sentence from the NSW Court of Criminal Appeal in which the NSWCCA allowed a Crown appeal against sentence.  The appeal raises questions about the manner in which the Court of Criminal Appeal, having identified error on the part of the sentencing judge, then went about re-determining the sentence.

In Willmott Growers Group Inc v Willmott Forests Ltd (Receivers & Managers Appointed) (In Liquidation) the High Court will consider the power of a liquidator of a managed investment scheme to disclaim leases granted to the members of the scheme.

Finally, in Wingfoot Australia Partners Pty Ltd v Kocak the Court will consider the extent to which a medical panel appointed under a statutory accident compensation scheme is required to give reasons for the opinions expressed by it, and the extent to which inadequacy of reasons is amenable to judicial review.

Malicious Prosecution in the High Court: Beckett v State of New South Wales

In Beckett v State of NSW the High Court has declared that in an action for malicious prosecution, the element of the cause of action that requires the criminal proceedings against the plaintiff to have terminated in their favour is satisfied where the DPP has exercised the power to direct that there be no further proceedings.

Despite what the newspapers triumphantly pronounced, this was not a case about whether or not Beckett was entitled to sue the State of NSW for malicious prosecution.  She did not “win the right” to sue.  It dealt with a very narrow issue about the effect of the DPP’s direction under section 7(2)(b) of the Director of Public Prosecutions Act 1986.  Importantly for Beckett, it decided that she did not need to positively establish that she was innocent of the crimes with which she had been charged.

The issue arose in this way.  Beckett was charged with a number of offences against her husband.  She was committed to stand trial, a bill of indictment was found and she was arraigned upon it.  She was found guilty of a number of the charges and sentenced to more than 12 years imprisonment.  She appealed unsuccessfully against her convictions and sentence to the NSW Court of Criminal Appeal.  She petitioned the governor for a review of her conviction, the result of which was that the NSW Court of criminal Appeal quashed a number of the convictions and ordered a new trial in respect of some of the counts.  The DPP then directed that there be no further proceedings (it is important to note that is undoubtedly because by the time the Court of Criminal Appeal had quashed the convictions and ordered a new trial, the plaintiff had already served the bulk of her sentence).

The plaintiff then commenced proceedings in the NSW Supreme Court for malicious prosecution.  The State of NSW asserted that the plaintiff had to establish her innocence of the charges in order to succeed.  This was based upon the outcome of the High Court decision in Davis v Gell (1924) 35 CLR 275 in which the High Court held that where criminal proceedings are terminated by the entry of nolle prosequi the plaintiff is nonetheless required to prove their innocence.  A subsequent decision of the High Court in Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 narrowly confined the holding in Davis.  In Smith the criminal proceedings came to an end by the decision of the Attorney-General not to file an indictment.  The Court held that the guilt or innocence of the plaintiff is not an issue going to the cause of action for malicious prosecution.  However, they carved out of this general statement the case of nolle prosequi such as in Davis.  The position of criminal proceedings terminated by nolle prosequi was rightly to be regarded as anomalous, but it remained binding nonetheless.

The issue that squarely arose in the Supreme Court was whether the direction by the DPP that there be no further proceedings was equivalent to the entry of nolle prosequi by the Attorney-General.  The Supreme Court and the Court of Appeal held that it was, with the consequence that if Davis remained good law, then Beckett would have to establish her innocence at any trial of her malicious prosecution claim.

On appeal to the High Court, the Court held that a plaintiff needs to establish that the criminal proceedings terminated in their favour, but did not need to establish their innocence.  The Court agreed with the NSW Court of Appeal that the direction by the DPP was equivalent to the entry of nolle prosequi and was sufficient to establish that the criminal proceedings had terminated in the plaintiff’s favour.

Some comments should be made about the High Court’s reasoning. 

There are some statements made in the judgments to the effect that guilt or innocence of the plaintiff is not an issue in a cause of action for malicious prosecution.  That may be accepted, but only in a narrow sense.  It is true in the sense that a plaintiff does not need to prove innocence.  But if a plaintiff remains convicted of an offence then the proceedings have not terminated in their favour, and accordingly guilt remain relevant in that sense.

However, it may also remain relevant in an evidentiary sense as well.  Take, for example, a malicious prosecution case that will be heard in the NSW district Court next week.  In that case the DPP issued a direction that there be no further proceedings, and accordingly the proceedings terminated favourably to the plaintiff, and she is not required to prove her innocence.  However in the civil proceedings she has sued not only the State of NSW but the complainants whose statements brought about the charges in the first place.  In order to succeed the plaintiff must also prove an absence of reasonable and probable cause, and that the prosecution was brought about maliciously.  To the extent those two elements of the cause of action are directed against the complainants, it remains open to those defendants to prove that the plaintiff in fact committed the offences for which she was charged, in order to firstly establish reasonable and probable cause and secondly to rebut any inference of malice.

More fundamentally, the supposed justification for the element of the cause of action that requires proceedings to have terminated favourably for the plaintiff does not support the outcome arrived at in this case (or indeed much of the other caselaw in relation to favourable termination.  That justification is described as being “the concern of the law with the consistency of judicial determinations, a concern that is distinct from proof of actual innocence or guilt: a plaintiff who is wrongfully convicted of an offence cannot maintain an action for malicious prosecution notwithstanding that he or she may possess irrefutable proof of innocence.”  But that concern of consistency of judicial determinations is not achieved by a rule that allows anything short of acquittal as satisfying the favourable termination element.  Unless the termination of proceedings is such as to foreclose the possibility of subsequent prosecution, there always remains the possibility of a successful claim for malicious prosecution being followed by a successful prosecution for the crime. A direction under section 7 of the section 7(2)(b) of the Director of Public Prosecutions Act 1986, like the entry of nolle prosequi, does not prevent the recommencement of criminal proceedings, and so the possibility of inconsistent outcomes remains.

One undesirable consequence of this rule, returning now to the facts of Beckett’s case, is this.  The decision not to retry Beckett was undoubtedly made having regard to the fact she had already effectively served her time.  It would be unfortunate for decisions as to whether to retry an accused came to be influenced by the consideration that the State would then be left exposed to a claim for malicious prosecution. What purpose does it serve to encourage prosecuting authorities to retry an accused simply to establish their guilt, in order to foreclose a civil claim, in circumstances where further punishment is unlikely.