Grants of Special Leave to Appeal to the High Court

On Friday, 16 August 2013 the High Court granted special leave to appeal in four cases, and referred a fifth to an enlarged bench to be heard as if on appeal.

Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd is an appeal from the NSW Court of Appeal.  In this case a rogue and his companies were heavily indebted to Hills Industries and another company, Bosch Security.  The rogue generated fake invoices for the purchase of non-existent equipment from Hills and Bosch.  Using these invoices he raised funds from AFSL.  AFSL thought it was purchasing goods from Hills and Bosch and leasing them back to the rogue.  The funds were paid by AFSL to Hills and Bosch by electronic transfer.  The rogue told Hills and Bosch the moneys were partial repayment of the debts he owed to them.  As a result of that partial repayment, Hills desisted from taking proceedings against the rogue’s companies to recover the debts, and Bosch agreed to setting aside various default judgments and abandoning other proceedings that were currently on foot. Ultimately, the fraud was discovered, and AFSL commenced proceedings seeking the restitution of the funds paid to them.  At issue in the High Court is whether or not Hills and Bosch, having changed their position in good faith on the basis of the payment of those moneys, have a good defence to the restitution claim.

Li v Chief of the Army is an appeal from the Full Court of the Federal Court of Australia.  The appellant was charged that he “created a disturbance by causing a confrontation” contrary to section 33(b) of the Defence Force Discipline Act 1982.  That section makes it an offence where a defence member “creates a disturbance or takes part in creating a disturbance or continuing a disturbance.” At issue in the appeal is whether or not the offence as charged is an offence created by section 33(b) (ie whether the words “causing a confrontation” were merely particulars of the charge rather than a substantive element of the offence).  Also at issue is whether the prosecution is required to prove an intention to engage in conduct that in fact creates a disturbance, or whether the prosecution must prove an intention to create a disturbance.

Kline v Official secretary to the Governor General is an appeal from the Full Court of the Federal Court of Australia.  Kline had twice nominated a person for appointment to the Order of Australia.  Those nominations had been unsuccessful.  Kline made an application under the Freedom of Information Act 1982 for access to documents relating to those nominations (including documents of a more general nature relating to such nominations, such as working manuals and policy guidelines).  At issue in the appeal is whether or not the documents sought related to “matters of an administrative nature” (in which case the FOI Act required access to be granted) or whether they related to the exercise of a substantive power and function of the Governor-General (ie the administration of the Order of Australia) in which case they were exempt from production.

The join applications for leave in Zirilli v The Queen and Barbaro v The Queen have been referred to an enlarged bench.  These cases are appeals from the Victorian Court of Appeal against sentencing for drug trafficking, where the sentences were challenged on the grounds of manifest excess, and in the case of Barbaro on the grounds of disparity between co-offenders.

Australian Competition and Consumer Commission v TPG Internet Pty Ltd is an appeal from the Full Court of the Federal Court of Australia. In this case TPG was prosecuted for various contraventions of the Trade Practices Act 1974 arising out of advertisements for ADSL2+ access.  The advertisements prominently promoted pricing such as “$29.99pm”, but included in smaller print other statements such as the fact that there was a minimum charge of $509.89, and that the pricing was available only if bundled with a home phone line rental.  At issue, in general terms, is the efficacy of the fine print in defending what would otherwise be a misleading “dominant headline”, as well as the extent to which awareness of the industry practice of bundling and set-up costs to arrive at a minimum price may be assumed for the purposes of assessing whether an advertisement is misleading.

Finally, James v The Queen is an appeal from the Victorian Court of Appeal.  This case raises an important issue as to whether or not a judge presiding over a criminal trial is required to submit for the jury’s consideration the possibility of conviction for a lesser alternative offence, where conviction for that lesser offence is a realistic possibility on the evidence.  The issue arises starkly in this case because defence counsel at the trial made a conscious forensic decision not to ask for lesser alternative charges to be left to the jury.